EX-10.1 2 cbdc-ex101_7.htm EX-10.1 cbdc-ex101_7.htm

Exhibit 10.1

Execution Version

U.S. $200,000,000

LOAN AND SECURITY AGREEMENT

by and among

Crescent Capital BDC, Inc.,
as the Borrower

EACH OF THE LENDERS FROM TIME TO TIME PARTY HERETO,
as the Lenders

and

ALLY BANK,
as the Administrative Agent and Arranger

Dated as of August 20, 2019


 

TABLE OF CONTENTS

 

 

 

 

Page

ARTICLE I DEFINITIONS

1

 

 

 

 

Section 1.1

 

Certain Defined Terms.

1

Section 1.2

 

Other Terms.

49

Section 1.3

 

Computation of Time Periods.

49

Section 1.4

 

Interpretation.

50

Section 1.5

 

Calculation of Borrowing Base

50

Section 1.6

 

Currencies; Currency Equivalents

51

 

 

 

 

ARTICLE II THE NOTES

51

 

 

 

 

Section 2.1

 

The Notes.

51

Section 2.2

 

Procedures for Advances by the Lenders.

52

Section 2.3

 

Principal Repayments.

53

Section 2.4

 

Determination of Interest.

55

Section 2.5

 

Notations on Notes.

56

Section 2.6

 

Reduction of Borrowing Base Deficiency.

56

Section 2.7

 

Settlement Procedures.

56

Section 2.8

 

Post Default Collections.

56

Section 2.9

 

Termination or Reduction of the Facility Amount.

57

Section 2.10

 

Payments, Computations, Etc.

57

Section 2.11

 

Manner of Designating Applicable Interest Rates.

58

Section 2.12

 

Increased Costs; Capital Adequacy; Illegality.

59

Section 2.13

 

Taxes.

61

Section 2.14

 

Discretionary Sales of Loans and Capital Contributions.

66

Section 2.15

 

[Reserved].

66

Section 2.16

 

Defaulting Lenders.

66

Section 2.17

 

Mitigation Obligations; Replacement of Lenders.

67

Section 2.18

 

Increase of Commitment; Facility Amount.

68

 

 

 

 

ARTICLE III CONDITIONS TO THE EFFECTIVE DATE AND ADVANCES

69

 

 

 

 

Section 3.1

 

Conditions to Effective Date.

69

Section 3.2

 

Conditions Precedent to All Advances after the Effective Date.

71

Section 3.3

 

Delivery.

73

 

 

 

 

ARTICLE IV REPRESENTATIONS AND WARRANTIES

74

 

 

 

 

Section 4.1

 

Representations and Warranties of the Borrower.

74

Section 4.2

 

Representations and Warranties of the Borrower Relating to the

   Agreement and the Collateral.

80

 

 

 

 

 

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ARTICLE V GENERAL COVENANTS

81

 

 

 

 

Section 5.1

 

Affirmative Covenants of the Borrower.

81

Section 5.2

 

Negative Covenants of the Borrower.

88

 

 

 

 

ARTICLE VI COLLATERAL ADMINISTRATION

95

 

 

 

 

Section 6.1

 

[Reserved].

95

Section 6.2

 

Duties of the Borrower.

95

Section 6.3

 

Authorization of the Borrower.

96

Section 6.4

 

Collection of Payments; Accounts.

96

Section 6.5

 

Realization Upon Defaulted or Delinquent Loans.

97

Section 6.6

 

Reports.

97

 

 

 

 

ARTICLE VII [RESERVED]

98

 

 

 

 

ARTICLE VIII SECURITY INTEREST

98

 

 

 

 

Section 8.1

 

Grant of Security Interest.

98

Section 8.2

 

Release of Lien on Collateral.

100

Section 8.3

 

Remedies.

101

Section 8.4

 

Waiver of Certain Laws.

101

Section 8.5

 

Power of Attorney.

101

 

 

 

 

ARTICLE IX EVENTS OF DEFAULT

102

 

 

 

 

Section 9.1

 

Events of Default.

102

Section 9.2

 

Remedies.

105

 

 

 

 

ARTICLE X INDEMNIFICATION

106

 

 

 

 

Section 10.1

 

Indemnities by the Borrower.

106

Section 10.2

 

After‑Tax Basis.

107

 

 

 

 

ARTICLE XI THE ADMINISTRATIVE AGENT

108

 

 

 

 

Section 11.1

 

Appointment.

108

Section 11.2

 

Standard of Care; Exculpatory Provisions.

109

Section 11.3

 

Administrative Agent’s Reliance, Etc.

110

Section 11.4

 

Credit Decision with Respect to the Administrative Agent.

110

Section 11.5

 

Indemnification of the Administrative Agent.

110

Section 11.6

 

Successor Administrative Agent.

111

Section 11.7

 

Delegation of Duties.

111

Section 11.8

 

Payments by the Administrative Agent.

111

Section 11.9

 

Collateral Matters.

112

 

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ARTICLE XII MISCELLANEOUS

112

 

 

 

 

Section 12.1

 

Amendments and Waivers.

112

Section 12.2

 

Notices, Etc.

114

Section 12.3

 

Ratable Payments.

115

Section 12.4

 

No Waiver; Remedies.

115

Section 12.5

 

Binding Effect; Benefit of Agreement.

116

Section 12.6

 

Term of this Agreement.

116

Section 12.7

 

Governing Law; Jury Waiver.

116

Section 12.8

 

Consent to Jurisdiction; Waivers.

117

Section 12.9

 

Costs and Expenses.

117

Section 12.10

 

[Reserved].

118

Section 12.11

 

Recourse Against Certain Parties.

118

Section 12.12

 

Protection of Right, Title and Interest in the Collateral; Further Action

   Evidencing Advances.

119

Section 12.13

 

Confidentiality.

120

Section 12.14

 

Execution in Counterparts; Severability; Integration.

121

Section 12.15

 

Waiver of Setoff.

121

Section 12.16

 

Assignments by the Lenders.

122

Section 12.17

 

Heading and Exhibits.

125

Section 12.18

 

Effect of Benchmark Transition Event.

125

Section 12.19

 

Divisions.

126

Section 12.20

 

Judgment Currency.

127

Section 12.21

 

Atlantis Acquisition.

127

 

 

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EXHIBITS

EXHIBIT A‑1

Form of Funding Notice

EXHIBIT A‑2

Form of Repayment Notice

EXHIBIT A‑3

Form of Static Pool Analysis

EXHIBIT A‑4

Form of Borrowing Base Certificate

EXHIBIT A‑5

Form of Incumbency Certificate

EXHIBIT A-6

Form of Compliance Certificate

EXHIBIT B

Form of Promissory Note

EXHIBIT C

Form of Officer’s Certificate as to Solvency

EXHIBIT D

Form of Officer’s Closing Certificate

EXHIBIT E

Form of Section 2.13 Certificate

EXHIBIT F

Form of Joinder Supplement

EXHIBIT G

Form of Transferee Letter

EXHIBIT H

Form of Termination or Reduction

EXHIBIT I

Form of Continuation or Conversion

 

SCHEDULES

SCHEDULE I

Post-Closing Obligations

SCHEDULE II

Loan List

SCHEDULE III

Subsidiaries

SCHEDULE IV

Transactions with Affiliates

SCHEDULE V

S&P Industry Classifications

SCHEDULE VI

Permitted Liens

 

ANNEXES

ANNEX A

Addresses for Notices

ANNEX B

Commitments

 

 

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LOAN AND SECURITY AGREEMENT

THIS LOAN AND SECURITY AGREEMENT (as amended, modified, waived, supplemented, restated or replaced from time to time, this Agreement”) is made as of August 20, 2019, by and among:

(1)Crescent Capital BDC, Inc., a Delaware corporation, as the borrower (the “Borrower”);

(2)EACH OF THE LENDERS FROM TIME TO TIME PARTY HERETO (together with its respective successors and assigns in such capacity, each a “Lender”, collectively, the “Lenders”); and

(3)ALLY BANK (together with its successors and assigns, “Ally Bank”), as the administrative agent hereunder (together with its successors and assigns in such capacity, the “Administrative Agent”) and as Arranger.

RECITALS

WHEREAS, the Borrower has requested that the Lenders extend credit hereunder by providing Commitments and making Advances under the Notes from time to time for the origination or purchase of Eligible Loans and for the general business purposes of the Borrower;

WHEREAS, the Lenders are willing to extend such credit to the Borrower on the terms and subject to the conditions set forth herein;

NOW, THEREFORE, based upon the foregoing Recitals, the mutual premises and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.1Certain Defined Terms.

Certain capitalized terms used throughout this Agreement are defined in this Section 1.1.  As used in this Agreement and its schedules, exhibits and other attachments, unless the context requires a different meaning, the following terms shall have the following meanings:

1940 Act”:  The Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.

Accrual Period” or “Interest Accrual Period”:  With respect to (a) the first Interest Payment Date, the period from and including the Effective Date to but excluding the last calendar day of the month immediately preceding the first Interest Payment Date, and (b) any subsequent Interest Payment Date, the period from and including the last calendar day of the month immediately preceding the immediately previous Interest Payment Date to but excluding the last calendar day of each month immediately preceding the current Interest Payment Date (or, in the case of the final Interest Payment Date, to and including such Interest Payment Date).

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Adjusted Borrowing Value: For any Loan, for any date of determination, an amount equal to the Assigned Value of such Loan at such time multiplied by the Outstanding Balance of such Loan.

Administrative Agent”:  The meaning specified in the Preamble.

Administrative Questionnaire”:  An administrative questionnaire in a form supplied by the Administrative Agent.

Advance”:  Each funding by the Lenders hereunder (including each Loan Advance).

Advance Date”:  With respect to any Advance, the date on which such Advance is made.

Advance Rate”:  As follows:

(a)With respect to First Lien Loans for which the applicable Obligor has Permitted EBITDA of less than $10,000,000, 60.0%;

(b)With respect to First Lien Loans for which the applicable Obligor has Permitted EBITDA between $10,000,000 and $50,000,000, 70.0%;

(c)With respect to First Lien Loans for which the applicable Obligor has Permitted EBITDA in excess of $50,000,000, 72.0%; provided that with respect to such First Lien Loans for which the applicable Obligor is rated B- or higher by S&P (or the equivalent rating of another Rating Agency), so long as there are available at least two current quotes from broker dealers with respect to such Loan that are acceptable to Administrative Agent in its sole discretion, 75.0%;

(d)With respect to First Lien Last Out Loans, 50.0%; and

(e)With respect to Second Lien Loans, 30.0%; provided that Second Lien Loans for which the applicable Obligor has EBITDA in excess of $50,000,000, 50.0% on and after the Effective Date until the Borrowing Base Conversion Date.

Notwithstanding the foregoing, any portion of any First Lien Loan that causes such Loan to be in excess of the Net Senior Leverage Ratio requirement set forth in clause (aa) of the definition of “Eligible Loan”, but does not cause the Net Senior Leverage Ratio to be greater than 7.25 to 1.00, shall have an “Advance Rate” of 30.0% as set forth in clause (aa) of the definition of “Eligible Loan”.

Advances Outstanding”:  On any day, the aggregate principal amount of all Advances outstanding on such day, after giving effect to all repayments of Advances and the making of new Advances on such day.

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Affiliate:  With respect to a Person, means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person; provided that for purposes of determining whether any Loan is an Eligible Loan, the term Affiliate shall not include any Affiliate relationship which may exist solely as a result of direct or indirect ownership of, or control by, a common Financial Sponsor.  For purposes of this definition, control, when used with respect to any specified Person means the possession, directly or indirectly, of the power to vote 20.0% or more of the voting securities of such Person or to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.  Notwithstanding the foregoing, when referring to (i) the definition of Approved Fund, (ii) any reference to an Affiliate of an Obligor and (iii) the definition of Related Parties, for purposes of this definition, control, when used with respect to any specified Person means the possession, directly or indirectly, of the power to vote 50.01% or more of the voting securities of such Person or to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by contract or otherwise.  Anything herein to the contrary notwithstanding, none of the following shall be considered an Affiliate of the Borrower: any Person that constitutes an Investment held by the Borrower, any Financing Subsidiary or any Tax Blocker Subsidiary in the ordinary course of business and that is not, under GAAP, consolidated on the financial statements of the Borrower and its Subsidiaries.

Agented Note”:  Any Loan originated as a part of a syndicated loan transaction that has been closed (without regard to any contemporaneous or subsequent syndication of such Loan) prior to such Loan becoming part of the Collateral.

Agreement”:  The meaning specified in the Preamble.

Ally Bank”:  The meaning specified in the Preamble.

Applicable Collateral Value”:  (a) with respect to Eligible Loans relating to Tier 3 Obligors, 85.0%, (b) with respect to Eligible Loans relating to Tier 2 Obligors, 92.5% and (c) with respect to Eligible Loans relating to Tier 1 Obligors, 100%.

Applicable Law”:  For any Person or property of such Person, all existing and future laws, rules, regulations, statutes, treaties, codes, ordinances, permits, certificates, orders and licenses of and interpretations by any Governmental Authority which are applicable to such Person or property (including, without limitation, predatory and abusive lending laws; laws, rules and regulations relating to licensing, fair credit billing, fair credit reporting, equal credit opportunity, fair debt collection practices and privacy; usury laws; truth in lending laws (including the Federal Truth in Lending Act); and Regulation Z and Regulation B of the Board of Governors of the Federal Reserve System), and applicable judgments, decrees, injunctions, writs, awards or orders of any court, arbitrator or other administrative, judicial, or quasi‑judicial tribunal or agency of competent jurisdiction.

Applicable Spread”:  A rate per annum equal to (a) with respect to any Advance bearing interest at the LIBOR Rate, (i) so long as no Event of Default has occurred and is continuing, 2.3% or (ii) if an Event of Default has occurred and is continuing, at the election of the Administrative Agent or the Required Lenders, 4.3%, in each case with written notice to the Borrower (which election may be retroactively effective to the date of such Event of Default), and (b) with respect to any Advance bearing interest at the Base Rate, (i) so long as no Event of Default has occurred and is continuing, 1.3% or (ii) if an Event of Default has occurred and is continuing, at the election of the Administrative Agent or the Required Lenders, 3.3%, in each case with written notice to the Borrower (which election may be retroactively effective to the date of such Event of Default).

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Approved Country:  The United States or any state, commonwealth, territory or other jurisdiction (including the District of Columbia) thereof, the United Kingdom, Canada, the Netherlands Antilles, Bermuda, the Cayman Islands, the British Virgin Islands, the Channel Islands, the Isle of Man, Australia, New Zealand, the Netherlands, Germany, Sweden, Switzerland, Austria, Belgium, Denmark, Finland, Iceland, Ireland, Lichtenstein, Luxembourg and Norway.

Approved Country Reserve”:  At any time, an amount equal to 2.0% of the Adjusted Borrowing Value of all Eligible Loans for which the applicable Obligor is organized, incorporated or domiciled in an Approved Country (other than the United States or any state, commonwealth, territory or other jurisdiction (including the District of Columbia) thereof).

Approved Foreign Currency”:  Any currency of any Approved Country, other than Dollars.

Approved Fund”:  Any fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

Asset Coverage Ratio”: The ratio, determined on a consolidated basis for Borrower and its Subsidiaries, without duplication, of (a) the value of total assets of the Borrower and its Subsidiaries less all liabilities and Indebtedness not represented by senior securities to (b) the aggregate amount of senior securities representing Indebtedness of Borrower and its Subsidiaries (including any Indebtedness outstanding under this Agreement), in each case as determined pursuant to the 1940 Act and any orders of the Securities and Exchange Commission issued to or with respect to Borrower thereunder, including any exemptive relief granted by the Securities and Exchange Commission with respect to the Indebtedness of any Person.

Assigned Value”:  With respect to each Loan, as of any date of determination (x) prior to a Value Adjustment Event, Applicable Collateral Value and (y) at any time following a Value Adjustment Event, an amended value assigned by the Administrative Agent in its sole discretion at such time; provided that Eligible Loans purchased at less than 95.0% of par, shall have an Assigned Value equal to the lesser of (i) the Purchase Price and (ii) Applicable Collateral Value; provided further that, the Assigned Value of an Eligible Loan shall be zero if clauses (b) or (e) of the definition of “Value Adjustment Event” occur, and shall be zero with respect to a Material Modification pursuant to clause (a) (d) or (e) of the definition of “Material Modification”, in each case until revalued, at which time the Assigned Value of such Eligible Loan will be its newly-determined Assigned Value.

Assigned Value Notice”:  A written notice (which may in the form of an e‑mail) delivered by the Administrative Agent to the Borrower and the Lenders specifying the value of a Loan determined in accordance with terms of the definition of “Assigned Value” in this Section 1.1.

Atlantis Acquisition”: Borrower’s acquisition of the Target pursuant to the Atlantis Acquisition Agreement.

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Atlantis Acquisition Agreement: That certain Agreement and Plan of Merger, dated as of August 12, 2019, among Borrower, Atlantis Acquisition Sub, Inc., the Target and Investment Advisor.

Available Liquidity”:  As of any date of determination, the sum of (i) the aggregate amount of Cash and Cash Equivalents available to Borrower and its wholly owned Subsidiaries as of such date and (ii) the amount of undrawn committed loan facilities or committed lines of credit available to Borrower and its wholly owned Subsidiaries and with respect to which the Borrower or its wholly owned Subsidiaries, as applicable, is able to satisfy the applicable conditions to the drawing thereof (or has obtained waivers thereof) on such date upon delivery of any documents or reports required under such facilities or lines of credit.

Availability”:  As of any date of determination, an amount equal to the least of:

(a)the Facility Amount;

(b)the sum of:  (i) the product of (x) the Borrowing Base as of such date multiplied by (y) the Weighted Average Advance Rate plus (ii) Cash and Cash Equivalents on deposit that are held in an account subject to a customary account control agreement in form and substance reasonably acceptable to and in favor of the Administrative Agent; and

(c)the Borrowing Base as of such date, plus Cash and Cash Equivalents on deposit that are held in an account subject to a customary account control agreement in form and substance reasonably acceptable to and in favor of the Administrative Agent, minus the Minimum Equity Amount;

provided, that on and after the Termination Date, Availability shall be zero.

Bankruptcy Code”:  The United States Bankruptcy Reform Act of 1978 (11 U.S.C. § 101, et seq.), as amended from time to time.

Base Rate”:  On any date, a fluctuating rate of interest per annum equal to the higher of (a) the “Bank Prime Loan” rate published by the Board of Governors of the Federal Reserve in Statistical Release H.15(519) entitled “Selected Interest Rates” or any successor publication acceptable to the Administrative Agent, and (b) the federal funds effective rate from time to time plus 0.50%.

Benchmark Replacement”:  The sum of:  (a) the alternate benchmark rate (which may include Term SOFR) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a replacement rate or the mechanism for determining such a rate by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a rate of interest as a replacement to the LIBOR Rate for Dollar-denominated syndicated credit facilities and (b) the Benchmark Replacement Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.

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Benchmark Replacement Adjustment:  With respect to any replacement of the LIBOR Rate with an Unadjusted Benchmark Replacement for each applicable Accrual Period, the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected by the Administrative Agent and the Borrower giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement by the Relevant Governmental Body or (ii) any evolving or then-prevailing market convention for determining a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the LIBOR Rate with the applicable Unadjusted Benchmark Replacement for Dollar-denominated syndicated credit facilities at such time.

Benchmark Replacement Conforming Changes”:  With respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definition of “Base Rate,” the definition of “Accrual Period,” the timing and frequency of determining rates and making payments of interest and other administrative matters) that the Administrative Agent decides may be appropriate to reflect the adoption and implementation of such Benchmark Replacement and to permit the administration thereof by the Administrative Agent in a manner substantially consistent with market practice (or, if the Administrative Agent decides that adoption of any portion of such market practice is not administratively feasible or if the Administrative Agent determines that no market practice for the administration of the Benchmark Replacement exists, in such other manner of administration as the Administrative Agent decides is reasonably necessary in connection with the administration of this Agreement).

Benchmark Replacement Date”:  The earlier to occur of the following events with respect to the LIBOR Rate:

(1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the LIBOR Rate permanently or indefinitely ceases to provide the LIBOR Rate; or

(2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.

Benchmark Transition Event”:  The occurrence of one or more of the following events with respect to the LIBOR Rate:

(1) a public statement or publication of information by or on behalf of the administrator of the LIBOR Rate announcing that such administrator has ceased or will cease to provide the LIBOR Rate, permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the LIBOR Rate;

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(2) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for the LIBOR Rate, a resolution authority with jurisdiction over the administrator for the LIBOR Rate or a court or an entity with similar insolvency or resolution authority over the administrator for the LIBOR Rate, which states that the administrator of the LIBOR Rate has ceased or will cease to provide the LIBOR Rate permanently or indefinitely; provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide LIBOR; or

(3) a public statement or publication of information by the regulatory supervisor for the administrator of the LIBOR Rate announcing that the LIBOR Rate is no longer representative.

Benchmark Transition Start Date”:  (a) In the case of a Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90 days after such statement or publication, the date of such statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Administrative Agent or the Required Lenders, as applicable, by notice to the Borrower, the Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.

Benchmark Unavailability Period”:  If a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the LIBOR Rate and solely to the extent that the LIBOR Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder in accordance with the Section titled “Effect of Benchmark Transition Event” and (y) ending at the time that a Benchmark Replacement has replaced the LIBOR Rate for all purposes hereunder pursuant to the Section titled “Effect of Benchmark Transition Event.”

Beneficial Ownership Certification”:  A certification regarding beneficial ownership required by the Beneficial Ownership Regulation.

Beneficial Ownership Regulation”:  31 C.F.R. § 1010.230.

Borrower”:  The meaning specified in the Preamble.

Borrowing Base”:  As of any date of determination, an amount equal to (x) the Adjusted Borrowing Value of all Eligible Loans, minus (y) any Excess Concentration Amount(s), minus (z) the Approved Country Reserve.

Borrowing Base Certificate”:  A certificate setting forth the calculation of the Availability as of any date of determination, in the form of Exhibit A‑4, prepared by the Borrower.

Borrowing Base Conversion Date”: January 20, 2021.

Borrowing Base Deficiency”:  The Dollar Equivalent of the amount by which, on any date of determination, (a) the Advances Outstanding exceed (b) Availability.

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Breakage Costs:  With respect to any Lender and to the extent requested by such Lender in writing (which writing shall set forth in reasonable detail the basis for requesting and calculation of any such amounts) not later than five (5) Business Days following any event described in Section 2.10(c) that gives rise to a claim under this definition, any amount or amounts as shall compensate such Lender for any loss (excluding loss of anticipated profits), cost or reasonable expense actually incurred by such Lender as a result of the liquidation or re-employment of deposits or other funds required by the Lender attributable to such event; provided, that the Breakage Costs in respect of any such payment by the Borrower on any Interest Payment Date shall be deemed to be zero.  All Breakage Costs shall be due and payable hereunder within ten (10) days after receipt of such writing from the applicable Lender.  The determination by the applicable Lender of the amount of any such loss, cost or expense shall be conclusive absent manifest error.

Business Day”:  Any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the laws of, or are in fact closed in, the State of New York; provided that, if any determination of a Business Day shall relate to an Advance bearing interest at the LIBOR Rate, the term “Business Day” shall also exclude any day on which banks are not open for dealings in Dollar deposits in the London interbank market.

Capital Lease Obligations”: The obligations of any Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP, and the amount of such obligations shall be the capitalized amount thereof determined in accordance with GAAP.  Notwithstanding any other provision contained herein, solely with respect to any change in GAAP after December 15, 2018 with respect to the accounting for leases as either operating leases or capital leases, any lease that is not (or would not be) a capital lease under GAAP as in effect on December 15, 2018 shall not be treated as a capital lease, and any lease that would be treated as a capital lease under GAAP as in effect on December 15, 2018 shall continue to be treated as a capital lease, hereunder and under the other Transaction Documents, notwithstanding such change in GAAP after December 15, 2018, and all determinations of Capital Lease Obligations shall be made consistently therewith (i.e., ignoring any such changes in GAAP after December 15, 2018).

Capital Stock”:  Any and all shares, interests, participations or other equivalents (however designated) of capital stock of a corporation, any and all similar ownership interests in a Person (other than a corporation) and any and all warrants, rights or options to purchase any of the foregoing.

Capped Add-Backs”:  With respect to the last (4) fiscal quarters with respect to the related Loan and as identified in the covenant compliance certificates, if applicable, or financial statements in the Underlying Instruments for each Loan, the sum of (a) unrealized “run-rate” earnings or cost savings, (b) expected revenue or unrealized cost synergies, (c) any other add-back that is not reflected in the calculation of net income as represented in the Obligor’s covenant compliance certificates and/or financial statements, and (d) any other item the Borrower and the Administrative Agent mutually deem to be appropriate.

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

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Cash Equivalents:  Means investments (other than Cash) that are one or more of the following obligations:

(a)U.S. Government Securities, in each case maturing within one year from the date of acquisition thereof;

(b)investments in commercial paper maturing within 270 days from the date of acquisition thereof and having, at such date of acquisition, a credit rating of at least A‑1 from S&P and at least P-1 from Moody’s (or if only one of S&P or Moody’s provides such rating, such investment shall also have an equivalent credit rating of another Rating Agency);

(c)investments in certificates of deposit, bankers’ acceptances and time deposits maturing within 180 days from the date of acquisition thereof (i) issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, any domestic office of any commercial bank organized under the laws of the United States or any state, commonwealth, territory or other jurisdiction (including the District of Columbia) thereof; provided that such certificates of deposit, banker’s acceptances and time deposits are held in a Securities Account through which the Administrative Agent can perfect a security interest therein and (ii) having, at such date of acquisition, a credit rating of at least A-1 from S&P and at least P-1 from Moody’s (or if only one of S&P or Moody’s provides such rating, such investment shall also have an equivalent credit rating of another Rating Agency);

(d)fully collateralized repurchase agreements with a term of not more than 15 days from the date of acquisition thereof for U.S. Government Securities and entered into with (i) a financial institution satisfying the criteria described in clause (c) of this definition or (ii) an approved dealer having (or being a member of a consolidated group having) at such date of acquisition, a credit rating of at least A-2 from S&P and at least P-2 from Moody’s (or if only one of S&P or Moody’s provides such rating, such approved dealer shall also have an equivalent credit rating of another Rating Agency); and

(e)investments in money market funds that invest, and which are restricted by their respective charters to invest, substantially all of their assets in investments of the type described in the immediately preceding clauses (a) through (d) above (including as to credit quality and maturity);

provided that (i) in no event shall Cash Equivalents include any obligation that provides for the payment of interest alone (for example, interest-only securities or “IOs”); (ii) if any of Moody’s or S&P changes its rating system, then any ratings included in this definition shall be deemed to be an equivalent rating in a successor rating category of Moody’s or S&P, as the case may be; (iii) Cash Equivalents (other than U.S. Government Securities, repurchase agreements or the money market funds described in clause (d) or (e) of this definition of Cash Equivalents) shall not include any such investment of more than 10% of total assets of the Borrower in any single Obligor; and (iv) in no event shall Cash Equivalents include any obligation that is not denominated in Dollars.

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Cash Interest Coverage Ratio:  With respect to any Loan for any Relevant Test Period, either (a) the meaning of Cash Interest Coverage Ratio or comparable definition set forth in the Underlying Instruments for such Loan, or (b) in the case of any Loan with respect to which the related Underlying Instruments do not include a definition of Cash Interest Coverage Ratio or comparable definition, the ratio of (i) the Dollar Equivalent of EBITDA to (ii) the Dollar Equivalent of Cash Interest Expense of such Obligor as of the Relevant Test Period, as calculated by the Borrower in good faith.

Cash Interest Expense”:  With respect to any Obligor for any period, the amount which, in conformity with GAAP, would be set forth opposite the caption “interest expense” or any like caption reflected on the most recent financial statements delivered by such Obligor to the Borrower for such period.

Certificated Security”:  The meaning specified in Section 8‑102(a)(4) of the UCC.

Change of Control”:  The occurrence of any of the following events:  (a) the acquisition after the Effective Date of ownership, directly or indirectly, beneficially or of record, by any Person or group (within the meaning of the Exchange Act and the rules of the Securities and Exchange Commission thereunder as in effect on the Effective Date) of shares representing more than 50.0% of the aggregate ordinary voting power represented by the issued and outstanding capital stock (or similar ownership interests) of the Investment Advisor or the Borrower, or (b) the occupation of a majority of the seats (other than vacant seats) on the board of directors of the Borrower by Persons who were neither (i) nominated by the requisite members of the board of directors of the Borrower nor (ii) appointed by a majority of the directors so nominated.

Clearing Corporation”:  The meaning specified in Section 8‑102(a)(5) of the UCC.

Code”:  The Internal Revenue Code of 1986, as amended from time to time.

Collateral”:  The meaning specified in Section 8.1(a).

Collateral Administration Agreement”:  The Administration and Accounting Agreement, dated as of June 5, 2015, between the Borrower and the Collateral Administrator, as the same may be amended, modified, waived, supplemented or restated from time to time.

Collateral Administrator”:  State Street Bank and Trust Company, not in its individual capacity, but solely as Administrator under the Collateral Administration Agreement.

Collateral Value”:  As of any date of determination, an amount equal to the aggregate Adjusted Borrowing Value of all Eligible Loans in the Collateral as of such date.

Commitment”:  With respect to each Lender, the commitment of such Lender to make Loan Advances in accordance herewith in an amount not to exceed (a) prior to the earlier to occur of the Revolving Period End Date and the Termination Date, the Dollar amount set forth opposite such Lender’s name on Annex B or the amount set forth as such Lender’s “Commitment” on Schedule I to the Joinder Supplement relating to such Lender, as applicable, as such amounts may be reduced, increased or assigned from time to time pursuant to the provisions of this Agreement, and (b) on or after the earliest to occur of the Revolving Period End Date, the Termination Date and the termination of the Commitment of such Lender, zero.

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Compliance Certificate:  A certificate prepared by the Borrower setting forth that no Event of Default has occurred during the period covered by such certificate or, if any Event of Default has occurred during such period, setting forth a description of such Event of Default and specifying the action, if any, taken by the Borrower to remedy the same.  Such certificate shall also set forth calculations demonstrating compliance with Section 5.2(n) (Financial Covenants), in the form of Exhibit A‑6.

Consolidated EBIT: For any period with respect to the Borrower and its Subsidiaries on a consolidated basis, income (including, for the avoidance of doubt, interest and fees generated by total return swap reference assets) after deduction of all expenses other than Taxes, Consolidated Interest Expense and non-cash employee stock options expense and excluding (a) net realized gains or losses (including, for the avoidance of doubt, in connection with the sale or repayment of total return swap reference assets), (b) net change in unrealized appreciation or depreciation, (c) gains on re-purchases of Indebtedness, (d) the amount of interest paid-in-kind to the Borrower or any of its Subsidiaries (“PIK”) to the extent such amount exceeds the sum of (i) PIK interest collected in cash (including any amortization payments on such applicable debt instrument up to the amount of PIK interest previously capitalized thereon) and (ii) realized gains collected in cash (net of realized losses); provided that the amount determined pursuant to this clause (d)(ii) shall not be less than zero, all as determined in accordance with GAAP and (e) other non-cash charges and gains to the extent included to calculate income.

Consolidated Interest Expense”: With respect to the Borrower and for any period, the sum of (x) the total consolidated interest expense in respect of Indebtedness for borrowed money (including capitalized interest expense and interest expense attributable to Capital Lease Obligations) of Borrower and in any event shall include all interest expense with respect to any Indebtedness for borrowed money in respect of which Borrower is wholly or partially liable plus the net amount payable (or minus the net amount receivable) under Hedging Agreements permitted hereunder relating to interest during such period (whether or not actually paid or received during such period).

Contractual Obligation”:  With respect to any Person, any provision of any securities issued by such Person or any indenture, mortgage, deed of trust, contract, undertaking, agreement, instrument or other document to which such Person is a party or by which it or any of its property is bound or to which either is subject.

Control Agreement”:  The Control Agreement, dated as of the date hereof, among the Borrower, as the debtor, the Administrative Agent and State Street Bank and Trust Company, as the Custodian and as the Securities Intermediary, as the same may be amended, modified, waived, supplemented or restated from time to time.

Cov-Lite Loan”:  A First Lien Loan that does not require the Obligor to comply with at least one of the following financial covenants during each reporting period applicable to such Loan, whether or not any action by, or event relating to, the Obligor has occurred:  maximum total leverage, maximum senior leverage, maximum first lien leverage, minimum fixed charge coverage, minimum debt service coverage, minimum EBITDA, or other customary financial covenants.  For the avoidance of doubt, Loans that are cross-defaulted to other debt of the Obligor with any of the foregoing financial covenants but that do not have any of the foregoing covenants shall be considered Cov-Lite Loans hereunder.

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Covenant Compliance Period:  The period beginning on the Effective Date and ending on the date on which the Commitments have been terminated and the Obligations (other than Unasserted Contingent Obligations) have been paid in full.

Credit Policies”: The credit and investment policies, restrictions, and limitations set forth in Borrower’s Private Placement Memorandum dated June, 2018 under the heading Crescent Capital BDC, Inc. Common Stock, Section IV. Company Overview, as such credit and investment policies, restrictions, and limitations may be as amended or supplemented from time to time in accordance with Section 5.1(h).

Credit Quality Deterioration Event”:  With respect to any Eligible Loan, (i) the Cash Interest Coverage Ratio for any period of determination (a) declines to 85.0% of the applicable Original Cash Interest Coverage Ratio, and (b) is less than 1.50 to 1.00 or (ii) the Net Senior Leverage Ratio for any period of determination (a) increases by 0.50 times as compared to the applicable Original Net Senior Leverage Ratio, and (b) is greater than 4.00 to 1.00.

Currency”:  Dollars or any Approved Foreign Currency.

Custodian”:  State Street Bank and Trust Company, not in its individual capacity, but solely as Custodian, under the Custodian Agreement.

Custodian Agreement”:  The Custodian Agreement dated as of June 5, 2015 between the Custodian and the Borrower.

DBRS”:  DBRS, Inc. and its Affiliates, and any successor thereto.

Default”:  Any event that, with the giving of notice or the lapse of time, or both, would become an Event of Default.

Defaulted Loan”:  Any Loan with respect to which any of the following events has occurred and is continuing with respect to such Loan or the related Obligor (as applicable):  (a) a default in respect of any payment of principal, interest or commitment fees under such Loan (after giving effect to all applicable cure periods, but in no event longer than five (5) Business Days); (b) an Insolvency Event with respect to the related Obligor (except in the case of obligations with respect to a DIP Loan); (c) any reasonable determination by the Borrower that such loan is not collectible, is written off, is charged off, or should be placed on non-accrual status in accordance with the Credit Policies of Borrower; or (d) a default under such Loan (other than a default described in clause (a) above), together with the election by any agent or requisite number of lenders (including the Borrower) required to take any such action to (i) accelerate the Loan or (ii) otherwise exercise any of their other rights or remedies pursuant to the applicable Underlying Instruments.

Defaulting Lender”:  Any Lender that (i) has failed to fund any portion of the Advances required to be funded by it hereunder within two (2) Business Days of the date required to be funded by it hereunder, (ii) has otherwise failed to pay over to the Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless such amount is the subject of a good faith dispute, (iii) has notified the Borrower, the Administrative Agent or any other Lender in writing that it does not

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intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply or has failed to comply with its funding obligations under this Agreement or generally under other agreements in which it commits or is obligated to extend credit, (iv) has become or is, or has a direct or indirect parent company that has become or is, insolvent, or has, or has a direct or indirect parent company that has, become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee or custodian appointed for it, or has, or has a direct or indirect parent company that has, taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or (v) has failed, within five (5) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (v) upon receipt of such written confirmation by Administrative Agent and Borrower).

Delayed Draw Loan”:  A Loan that (i) requires one or more future advances to be made to the Borrower, (ii) specifies a maximum amount that can be borrowed on one or more fixed borrowing dates and (iii) does not permit the re-borrowing of any amount previously repaid by the related Obligor; provided that such loan shall only be considered a Delayed Draw Loan for so long as any future funding obligations remain in effect and only with respect to any portion which constitutes a future funding obligation.

Delivered”: The meaning specified in Section 3.3.

Deposit Account”:  The meaning specified in Section 9-102(a)(29) of the UCC.

DIP Loan”:  Any Loan (i) with respect to which the related Obligor is a debtor‑in‑possession as defined under the Bankruptcy Code, (ii) which has the priority allowed pursuant to Section 364 of the Bankruptcy Code and (iii) the terms of which have been approved by a court of competent jurisdiction (the enforceability of which is not subject to any pending contested matter or proceeding).

Discretionary Sale”:  The meaning specified in Section 2.14(c).

Disqualified Lender”: (i) Each Person that is identified by the Borrower in writing to the Administrative Agent and approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) and (ii) each Affiliate of any Person identified in clause (i) above that is either identified in writing to the Administrative Agent by the Borrower from time to time or readily identifiable solely based on similarity of such Affiliate’s name; provided, that (A) any Person that the Borrower has designated as no longer being a Disqualified Lender by written notice delivered to Administrative Agent from time to time shall be excluded as a Disqualified Lender unless it is again designated as a Disqualified Lender pursuant to the terms hereof and (B) an addition of any Disqualified Lender shall become effective two (2) Business Days after notice thereof to the Administrative Agent, and shall not apply retroactively to disqualify any transfer of an interest in Advances or Commitments that was effective prior to the effective date of such addition.

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Dollar Equivalent:  On any date of determination, (a) with respect to any amount in Dollars, such amount and (b) with respect to any amount in any Approved Foreign Currency, the equivalent in Dollars of such amount, as determined by the Administrative Agent pursuant to Section 1.06 using the Exchange Rate with respect to such currency at the time specified in such Section.  The Administrative Agent shall not have any responsibility for any calculation of a Dollar Equivalent amount made by the Borrower.

Dollars”:  Means, and the conventional “$” signifies, the lawful currency of the United States.

Early Opt-in Election”:  The occurrence of:

(1) (i) a determination by the Administrative Agent or (ii) a notification by the Required Lenders to the Administrative Agent (with a copy to the Borrower) that the Required Lenders have determined that Dollar-denominated syndicated credit facilities being executed at such time, or that include language similar to that contained in this Section titled “Effect of Benchmark Transition Event,” are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the LIBOR Rate, and

(2) (i) the election by the Administrative Agent or (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Administrative Agent of written notice of such election to the Borrower and the Lenders or by the Required Lenders of written notice of such election to the Administrative Agent.

EBITDA”:  With respect to the last four (4) fiscal quarters with respect to the related Loan, the meaning of “EBITDA”, “Adjusted EBITDA” or any comparable definition in the Underlying Instruments for each such Loan, and in any case that “EBITDA”, “Adjusted EBITDA” or such comparable definition is not defined in such Underlying Instruments, an amount, for the Obligor on such Loan and any parent that is obligated pursuant to the Underlying Instruments for such Loan (determined on a consolidated basis without duplication in accordance with GAAP) equal to earnings from continuing operations for such period plus  (to the extent deducted in determining earnings from continuing operations for such period) (a) interest expense, (b) income taxes, (c) depreciation and amortization, (d) amortization of intangibles (including, but not limited to, goodwill, financing fees and other capitalized costs), other non cash charges and organization costs, (e) extraordinary losses in accordance with GAAP, (f) one time, non recurring or non-cash charges consistent with the applicable compliance statements and financial reporting packages provided by such Obligor, (g) EBITDA related to the periods prior to an add-on acquisition for such Obligor, (h) change in deferred revenue and (i) any other item the Borrower and the Administrative Agent mutually deem to be appropriate, including adjustments deemed to be Capped Add-Backs.

Effective Date”:  August 20, 2019.

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Eligible Loan:  Each Loan (i) that is Delivered (and only for so long as such Loan continues to be Delivered) and (ii) that satisfies each of the following eligibility requirements:

(a)such Loan is a First Lien Loan, First Lien Last Out Loan, or a Second Lien Loan; provided Second Lien Loans acquired by the Borrower after the Effective Date (other than Loans acquired in connection with the Atlantis Acquisition) will not be deemed Eligible Loans from and after the Effective Date until the Borrowing Base Conversion Date;

(b)such Loan and the Underlying Instruments related thereto are eligible to be originated or acquired by the Borrower, the rights to service, administer and enforce the rights and remedies in respect of such Loan under the applicable Underlying Instruments inure to the benefit of the holder of such Loan or its designee (subject to the rights of any applicable agent), and neither the origination or acquisition of such Loan by the Borrower, nor the granting of a security interest hereunder to the Administrative Agent, violates, conflicts with or contravenes any Applicable Law or any contractual or other restriction, limitation or encumbrance contained in the Underlying Instruments related thereto;

(c)such Loan is payable in Dollars or in an Approved Foreign Currency and does not permit the currency in which such Loan is payable to be changed to a currency other than Dollars or an Approved Foreign Currency;

(d)such Loan is an obligation of an Obligor organized or incorporated in an Approved Country;

(e)no portion of such Loan (including any conversion option, exchange option, warrant or other component thereof) is exchangeable or convertible into an Equity Security at the option of the Obligor;

(f)such Loan (A) is not an Equity Security or a component of an Equity Security and (B) does not provide for the conversion or exchange into an Equity Security at any time on or after the date it is included in the Borrowing Base;

(g)such Loan is not subject to an offer of (or called for) exchange, redemption, conversion or tender by its Obligor, or by any other Person, for cash, Equity Securities or any other type of consideration (other than a notice of prepayment in accordance with the terms of the Underlying Instruments);

(h)such Loan does not constitute Margin Stock and is not a margin loan secured by Margin Stock;

(i)such Loan, and any payment made with respect to such Loan, does not subject the Borrower to any withholding tax, fee or governmental charge unless the Obligor thereon is required under the terms of the related Underlying Instrument to make “gross-up” payments constituting 100% of such withholding tax, fee or governmental charge on an after tax basis, in each case subject to customary terms and exceptions;

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(j)as of the date such Loan was first included in the Borrowing Base, such Loan is not a Defaulted Loan;

(k)such Loan is not a non-cash paying PIK Loan or Partial PIK Loan;

(l)such Loan does not constitute a Zero Coupon Obligation;

(m)if such Loan is a Cov-Lite Loan, as of the date such Loan is first included in the Borrowing Base, the Obligor of such Cov-Lite Loan has (x) EBITDA in excess of $50,000,000 and (y) is rated B- or higher by S&P (or the equivalent rating of another Rating Agency);

(n)such Loan is not a Structured Finance Obligation or a Finance Lease or chattel paper;

(o)such Loan provides for the full outstanding principal balance to be payable at or prior to its maturity;

(p)such Loan is not a Participation Interest;

(q)such Loan has a remaining term to maturity of not more than seven (7) years;

(r)such Loan provides for payment of interest at least quarterly;

(s)the obligation of the Obligor to pay principal and interest of such Loan is not contractually contingent on any material non-credit related risk (such as the occurrence of a catastrophe) as determined by the Borrower in its reasonable discretion;

(t)such Loan is not an obligation (other than a Revolving Loan or a Delayed Draw Loan) pursuant to which any future advances or payments to the Obligor may be required to be made by the Borrower;

(u)such Loan will not cause the Borrower or the pool of assets to be required to be registered as an investment company under the 1940 Act;

(v)the primary Underlying Asset for such Loan is not real property;

(w)such Loan is not an interest only security;

(x)such Loan is not a letter of credit (provided this does not exclude Revolving Loans that include a letter of credit sub-facility as long as the Borrower is not the issuer of letters of credit thereunder);

(y)such Loan is Registered;

(z)if such Loan is evidenced by a note or other instrument (including an assignment agreement or transfer document), such note or other instrument has been delivered to the Custodian;

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(aa)if such Loan is a First Lien Loan, the applicable Obligor meets the Net Senior Leverage Ratio requirement to be a Tier 1 Obligor, Tier 2 Obligor or Tier 3 Obligor, as applicable (in each case as set forth in the definition of Tier 1 Obligor, Tier 2 Obligor or Tier 3 Obligor, as applicable);

(bb)if such Loan is a First Lien Last Out Loan or a Second Lien Loan, the applicable Obligor meets the Net Total Obligor Leverage Ratio requirement to be a Tier 1 Obligor, Tier 2 Obligor or Tier 3 Obligor, as applicable (in each case as set forth in the definition of Tier 1 Obligor, Tier 2 Obligor or Tier 3 Obligor, as applicable); provided, however, that, any portion of a First Lien Last Out Loan or Second Lien Loan that causes such Loan to be in excess of the leverage criteria set forth above shall have an Assigned Value of zero;

(cc)as of the date such Loan was first included in the Borrowing Base, if such Loan is a Second Lien Loan, the Obligor of such Loan has EBITDA of at least $10,000,000 (excluding any Capped Add-Backs);

(dd)as of the date such Loan was first included in the Borrowing Base, if such Loan is a First Lien Last Out Loan, senior debt to EBITDA does not exceed 4.0 to 1.00, first lien debt to EBITDA throughout the applicable tranche does not exceed 6.0 to 1.00 and the Obligor of which has EBITDA of at least $10,000,000 (excluding any Capped Add-Backs); provided, however, that, any portion of a First Lien Last Out Loan causing first lien debt to EBITDA to be in excess of 6.0 to 1.00 shall be classified as a Second Lien Loan and subject to the criteria applicable thereto;

(ee)as of the date such Loan was first included in the Borrowing Base, the Obligor of such Loan has EBITDA of at least $5,000,000 (excluding any Capped Add-Backs);

(ff)as of the date such Loan was first included in the Borrowing Base, such Loan has not been more than thirty (30) days past due with respect to payments of either interest or principal within the past twelve (12) months;

(gg)as of the date such Loan was first included in the Borrowing Base, such Loan is not an obligation of an Obligor (or guarantor) engaged in (i) assault weapons or firearms manufacturing, (ii) payday lending or adult entertainment, or (iii) the marijuana industry;

(hh)as of the date such Loan was first included in the Borrowing Base, such Loan does not have an interest rate less than the effective interest rate on the Advances outstanding under the Facility plus 1.0%;

(ii)if more than one Loan has been made to an Obligor, then each such Loan is (i) cross collateralized and cross-defaulted, (ii) owned by the Borrower and pledged as Collateral hereunder or (iii) subject to an intercreditor agreement in form and substance satisfactory to Administrative Agent in its reasonable discretion;

(jj)such Loan is not a construction loan or a project finance loan;

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(kk)such Loan is in the form of and is treated by the related Obligor as indebtedness of such Obligor and is not a United States real property interest as defined under Section 897 of the Code;

(ll)the Borrower has good and marketable title to, and is the sole owner of, such Loan, and the Borrower has granted to the Administrative Agent a valid and perfected first priority (subject to Permitted Liens) security interest in the Loan and Underlying Instruments, for the benefit of the Secured Parties;

(mm)all consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority or any other Person required to be obtained, effected or given in connection with the making, acquisition or transfer of such Loan (other than those related solely to environmental matters) have been duly obtained, effected or given and are in full force and effect;

(nn)all consents, licenses, approvals or authorizations of, or registrations or declarations with, any Governmental Authority or any other Person required to be obtained, effected or given in connection with the making, acquisition or transfer of such Loan, in connection with environmental matters, have been duly obtained, effected or given and are in full force and effect, except where the failure to have such obtained, effected or given could not reasonably be expected to have a Material Adverse Effect;

(oo)the Underlying Instruments for such Loan do not contain a confidentiality provision that would prohibit the Administrative Agent or any Secured Party from exercising any of their respective rights hereunder or obtaining all necessary information with regard to such Loan, so long as the Administrative Agent or such Secured Party, as applicable, has agreed to maintain the confidentiality of such information in accordance with the provisions of such Underlying Instruments;

(pp)all information provided by the Borrower with respect to the Loan is true, correct and complete in all material respects, provided that the Borrower shall not be responsible for, nor have any liability with respect to, any factual information furnished to it by any third party not affiliated with it, except to the extent that a Responsible Officer of such Person has actual knowledge that such factual information is inaccurate in any material respect;

(qq)as of the date such Loan is first included in the Borrowing Base, such Loan is not delinquent in payment or defaulted in any other manner that would give rise to the right of any holder of such Loan to accelerate such Loan and no portion of such Loan has been converted into equity;

(rr)such Loan and any Underlying Assets (or, with respect to clause (ii), the acquisition thereof) (i) comply in all material respects with all Applicable Laws and (ii) do not cause any Secured Party (in its commercially reasonable judgment and as evidenced by a written notice from such Secured Party) to fail to comply with any request or directive from any Governmental Authority having jurisdiction over such Secured Party;

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(ss)such Loan, together with the Underlying Instruments related thereto, (i) contains provisions substantially to the effect that such Loan and such Underlying Instruments constitute the legal, valid and binding obligation of the related Obligor and each guarantor thereof, enforceable against such Obligor and each such guarantor in accordance with their terms, subject to customary bankruptcy, insolvency and equity limitations, (ii) is not subject to any (a) litigation or dispute or (b) offset, right of rescission, counterclaim or defense to payment, (iii) contains provisions substantially to the effect that the Obligors and each guarantors payment obligations thereunder are absolute and unconditional without any right of rescission, setoff, counterclaim or defense for any reason against the Borrower or any assignee and (iv) contain provisions requiring customary covenant compliance and other reporting requirements;

(tt)such Loan (1) was originated and underwritten, or purchased and re‑underwritten, by the Borrower or any of its Affiliates in accordance with the Credit Policies and (2) is fully documented to the reasonable satisfaction of Administrative Agent;

(uu)such Loan requires the related Obligor to pay customary maintenance, repair, insurance and taxes, together with all other ancillary costs and expenses, with respect to the related, underlying collateral of such Loan;

(vv)the Obligor with respect to such Loan is an Eligible Obligor;

(ww)such Loan or any related Underlying Instrument has not been found to be illegal or unenforceable by the decision of a court of law or a Governmental Authority in a proceeding brought by the related Obligor, any other party obligated with respect to such Loan, or any Governmental Authority;

(xx)as of the date such Loan is first included in the Borrowing Base, there are no proceedings pending or, to the best of the Borrower’s knowledge, threatened in writing wherein the Obligor of such Loan, any other obligated party or any governmental agency has alleged that such Loan or the Underlying Instrument which creates such Loan is illegal or unenforceable;

(yy)as of the date such Loan is first included in the Borrowing Base, the value of the Underlying Assets securing the Loan (or the enterprise value of the underlying business determined in accordance with a methodology reasonably acceptable to the Administrative Agent) at the time such loan was purchased, equals or exceeds the outstanding principal balance of such Loan plus the aggregate outstanding balances of all other loans of equal seniority secured by the same Underlying Assets;

(zz)Administrative Agent has received the Borrower’s internally approved credit/underwriting presentation (unless such credit/underwriting presentation was not prepared or received by Borrower in connection with an amendment or other modification to a Loan), the most recent year’s audited financial and, to the extent available, quarterly financial statements with respect to the applicable Obligor (or if audited financial statements are not available, (i) the most recent year’s quality of earnings report with respect to such Obligor, or (ii) the pro forma financial statements with respect to such

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Obligor, if such Obligor is a newly formed Person), the most recent covenant compliance certificate, if any, required to be provided to Borrower with respect to such Loan and executed material legal documents (provided, that in the case of executed legal documents, the Borrower may deliver such documents to the Administrative Agent within five (5) Business Days (or such longer period as consented to by the Administrative Agent) of the funding of the corresponding Loan); and

(aaa)as of the date such Loan is first included in the Borrowing Base, the Borrower has no knowledge of any fact which should lead it to expect that such Loan will not be repaid by the relevant Obligor in full, unless the Administrative Agent shall have consented to any knowledge or facts to the contrary in its sole discretion.

Eligible Obligor”:  On any date of determination, any Obligor that:

(a)is a business organization (and not a natural person) duly organized and validly existing under the laws of its jurisdiction of organization;

(b)is not a Governmental Authority;

(c)is not an Affiliate of the Borrower;

(d)is organized and incorporated and domiciled in the United States or any state thereof or an Approved Country;

(e)as of the date such Loan is first included in the Borrowing Base, to the Borrower’s knowledge, such Obligor has not experienced a material adverse change in its condition, financial or otherwise;

(f)is does not derive a material portion of its business from payday lending, pawn shops, adult entertainment, internet gambling companies, marijuana related businesses, automobile title loans, tax refund anticipation loans, credit repair services, drug paraphernalia, fireworks distributors, tax evasion, assault weapons or firearms manufacturing, businesses engaged in predatory lending practices or strip mining; and

(g)is not (i) a country, territory, organization, person or entity subject to comprehensive sanctions under an Office of Foreign Asset Control (OFAC) list; (ii) a Person that resides or has a place of business in a country or territory named on such lists or which is designated as a “Non‑Cooperative Jurisdiction” by the Financial Action Task Force on Money Laundering, or whose subscription funds are transferred from or through such a jurisdiction; (iii) a “Foreign Shell Bank” within the meaning of the USA Patriot Act, i.e., a foreign bank that does not have a physical presence in any country and that is not affiliated with a bank that has a physical presence and an acceptable level of regulation and supervision; (iv) a person or entity that resides in or is organized under the laws of a jurisdiction designated by the United States Secretary of the Treasury under Sections 311 or 312 of the USA Patriot Act as warranting special measures due to money laundering concerns; or (v) an Affiliate of any Person meeting any of the criteria set forth in clauses (i) through (iv) above.

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Equity Security:  (i) Any equity security or any other security that is not eligible for purchase by the Borrower as a Loan, and (ii) any security purchased as part of a unit with a Loan and that itself is not eligible for purchase by the Borrower as a Loan.

ERISA”:  The United States Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated or issued thereunder.

ERISA Affiliate”:  (a) Any corporation that is a member of the same controlled group of corporations (within the meaning of Section 414(b) of the Code) as the Borrower, (b) a trade or business (whether or not incorporated) under common control (within the meaning of Section 414(c) of the Code) with the Borrower, or (c) for purposes of Section 302 of ERISA and Section 412 of the Code, a member of the same affiliated service group (within the meaning of Section 414(m) of the Code) as the Borrower.

Eurodollar Disruption Event”:  The occurrence of any of the following:  (a) any Lender shall have notified the Administrative Agent of a determination by such Lender that it would be contrary to law or to the directive of any central bank or other Governmental Authority (whether or not having the force of law) to obtain any applicable Currency in the applicable interbank market, to fund any Advance, (b) any Lender shall have notified the Administrative Agent of a determination by such Lender that the rate at which deposits of any applicable Currency offered to such Lender in the applicable interbank market does not accurately reflect the cost to such Lender of making, funding or maintaining any Advance, (c) any Lender shall have notified the Administrative Agent of the inability of such Lender, as applicable, to obtain any applicable Currency in the applicable interbank market to make, fund or maintain any Advance or (d) adequate and reasonable means do not exist for ascertaining LIBOR for any requested Accrual Period, including because the LIBOR Screen Rate is not available or published on a current basis.

Events of Default”:  The meaning specified in Section 9.1.

Excepted Persons”:  The meaning specified in Section 12.13(a).

Excess Add-Backs”:  Capped Add-Backs included in the calculation of EBITDA that exceed the following limits as applicable to an Eligible Loan based on the EBITDA of such Obligor:

 

EBITDA of Obligor:

Capped Add-Backs (determined as a percentage of EBITDA) shall not exceed:

Less than $10,000,000

15.0% of EBITDA

Equal to or greater than $10,000,000, but less than $50,000,000

20.0% of EBITDA

Equal to or greater than $50,000,000

25.0% of EBITDA

 

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Excess Concentration Amount:  As of any date of determination (and after giving effect to all Eligible Loans to be purchased or sold by the Borrower on such date), the sum of the following amounts (without duplication):

(a)the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans that are obligations of the three Obligors with the largest Obligor Exposure included in the Borrowing Base minus (ii) the greater of $14,250,000 and 10.0% of the Collateral Value;

(b)except with respect to the Loans described in clause (a) above, the excess, if any, of (i) the aggregate Adjusted Borrowing Value of each Eligible Loan that is an obligation of any single Obligor and its Affiliates minus (ii) the greater of $7,250,000 and 5.0% of the Collateral Value;

(c)the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans that are obligations of Obligors in any single S&P Industry Classification minus (ii) (A) with respect to the S&P Industry Classification representing the highest concentration of the Eligible Loans (determined by reference to Adjusted Borrowing Value), the greater of $35,750,000 and 25.0% of the Collateral Value; (B) with respect to the S&P Industry Classification representing the second highest concentration of the Eligible Loans (determined by reference to Adjusted Borrowing Value), the greater of $28,500,000 and 20.0% of the Collateral Value; (C) with respect to the S&P Industry Classification representing the third highest concentration of the Eligible Loans (determined by reference to Adjusted Borrowing Value), the greater of $21,500,000 and 15.0% of the Collateral Value; and (D) with respect to each S&P Industry Classification other than those covered in clauses (A), (B) and (C) hereof, the greater of $14,250,000 and 10.0% of the Collateral Value;

(d)from and after the Effective Date until the Borrowing Base Conversion Date, the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans that are either (x) First Lien Last Out Loans or (y) Second Lien Loans, minus (ii) the greater of $71,500,000 and 50.0% of the Collateral Value; provided, that (i) Second Lien Loans cannot exceed (A) 45.0% of the Collateral Value after September 20, 2020, (B) 40.0% of the Collateral Value after October 20, 2020, (C) 35.0% of the Collateral Value after November 20, 2020, (D) 30.0% of the Collateral Value after December 20, 2020 and (E) 25.0% of the Collateral Value after the Borrowing Base Conversion Date; provided further, that, Second Lien Loans with underlying Obligors with EBITDA less than $50,000,000 cannot exceed the greater of $28,500,000 and 20.0% of the Collateral Value;

(e)on and after the Borrowing Base Conversion Date, the excess, if any, of (i) the aggregate Adjusted Borrowing Value of Second Lien Loans minus (ii) the greater of $35,750,000 and 25.0% of the Collateral Value;

(f)on and after the Borrowing Base Conversion Date, the excess, if any, of (i) the aggregate Adjusted Borrowing Value of First Lien Last Out Loans minus (ii) the greater of $35,750,000 and 25.0% of the Collateral Value;

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(g)the excess, if any of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans with underlying Obligors with EBITDA less than $10,000,000 minus (ii) the greater of $42,750,000 and 30.0% of the Collateral Value;

(h)the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans that are Cov-Lite Loans minus (ii) the greater of $28,500,000 and 20.0% of the Collateral Value;

(i)the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans that are Revolving Loans or Delayed Draw Loans minus (ii) the greater of $28,500,000 and 20.0% of the Collateral Value;

(j)the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans that are payable in an Approved Foreign Currency or that can be converted to be payable in an Approved Foreign Currency minus (ii) the greater of $21,500,000 and 15.0% of the Collateral Value; and

(k)the excess, if any, of (i) the aggregate Adjusted Borrowing Value of those Eligible Loans with Obligors organized or incorporated in an Approved Country (other than the United States or any state, commonwealth, territory or other jurisdiction (including the District of Columbia) thereof) minus (ii) the greater of $21,500,000 and 15.0% of the Collateral Value;

provided that, in the event of any such excess under clauses (a)-(k) of this definition where multiple Eligible Loans satisfy the description set forth in such clause, such excess shall, for the purposes of this definition, be treated as being made up of those Eligible Loans that result in the lowest Excess Concentration Amount on any date of determination.

Exchange Act”:  The United States Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.

Exchange Rate”:  On any day, for purposes of determining the Dollar Equivalent of any other currency, the rate at which such other currency may be exchanged into Dollars at the time of determination on such day on Reuters WRLD Page or FXC GO screen of the Bloomberg Financial Markets System or another publicly available service agreed upon by the Administrative Agent and Borrower at approximately 4:00 p.m. (New York Time) on such date.  For the avoidance of doubt, the Administrative Agent shall not have any responsibility to calculate any Dollar Equivalent amount pursuant to this Agreement.

Excluded Accounts”: (i) Any accounts exclusively used for payroll, payroll taxes and other employee wage, health and benefit payments, including pension fund and 401(k) accounts, (ii) any withholding tax or fiduciary accounts, (iii) any accounts for which the Borrower is the servicer for another Person, including any accounts in the name of the Borrower in its capacity as servicer for a Financing Subsidiary, (iv) any account which solely holds money or financial assets of a Financing Subsidiary, (v) any account in which the aggregate value of deposits therein or other property therein or credited thereto, together with all other such accounts under this clause (v), does not at any time exceed $500,000 and (vi) any account which solely holds collateral posted as margin to secure any Hedging Agreement.

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Excluded Amounts:  Any amount received by the Borrower with respect to any Loan included as part of the Collateral, which amount is attributable to (i) the reimbursement by the related Obligor of payment by the Borrower of any Tax, fee or other charge imposed by any Governmental Authority on such Loan or on any Underlying Assets, (ii) the reimbursement by the related Obligor of payment by the Borrower of other out-of-pocket expenses, (iii) any payments or reimbursements related to indemnification obligations, (iv) any escrows relating to Taxes, insurance and other amounts in connection with Loans which are held in an escrow account for the benefit of the Obligor and the secured party pursuant to escrow arrangements under Underlying Instruments, or (v) any amount paid to the Borrower in error; provided that, except with respect to the amounts described in clause (v) of this definition, such amounts shall be Excluded Amounts only to the extent that such amounts (x) are in excess of the principal and interest then due in respect of such Loan, and (y) were required to be paid by the related Obligor pursuant to a specific provision of the Underlying Instruments with respect to such Loan.

Excluded Assets”: (i) Any Excluded Capital Stock, (ii) any Excluded Account, (iii) any intent-to-use application for United States trademark registration and (iv) any Equity Interest that is issued as an “equity kicker” to holders of subordinated debt and that is pledged to secure senior debt, to the extent a pledge to the Administrative Agent of such Equity Interest is prohibited by the agreement(s) setting forth the terms and conditions applicable to such Indebtedness.

Excluded Capital Stock”: Unless designated in writing by the Borrower to the Administrative Agent that any such Capital Stock is to be included in the Collateral (provided that, concurrently with such designation, the Borrower shall have taken such steps as shall have been reasonably requested by the Administrative Agent to ensure that the Administrative Agent has a perfected first priority Lien (subject to Permitted Liens) in such Capital Stock), any Capital Stock issued by any Tax Blocker Subsidiary or Financing Subsidiary; provided, that if any such Tax Blocker Subsidiary or Financing Subsidiary, as applicable, shall at any time cease to be a Tax Blocker Subsidiary or Financing Subsidiary, as applicable, pursuant to this Agreement or otherwise, the Capital Stock issued by such Person shall no longer constitute Excluded Capital Stock and shall become part of the Collateral hereunder.

Excluded Taxes”:  The meaning specified in Section 2.13(e).

Facility Amount”:  As of any date, an amount equal to the lesser of (a) $200,000,000 and (b) the aggregate principal amount of the Commitments provided by the Lenders as of such date; provided that the Facility Amount may be increased pursuant to Section 2.18; provided further that the Facility Amount shall be reduced to $150,000,000 if the Atlantis Acquisition does not close for any reason on or before December 31, 2019 or such later date as agreed by the Administrative Agent; provided further that the Facility Amount may not be increased without the written consent of the Borrower, Administrative Agent and each Lender increasing its Commitment; and provided further that on and after the earlier to occur of the Revolving Period End Date and the Termination Date, the Facility Amount shall mean the Advances Outstanding as of such earlier date.

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FATCA:  Sections 1471 through 1474 of the Code, as in effect on the Effective Date (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof (including any Revenue Rulings, Revenue Procedure, Notice or similar guidance issued by the IRS thereunder as a precondition to relief or exemption from Taxes under such provisions) and any agreements entered into pursuant to Section 1471(b)(1) of the Code and any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law, regulation or official interpretation implementing such an intergovernmental agreement).

FDIC”:  The Federal Deposit Insurance Corporation, and any successor thereto.

Federal Reserve Bank of New York’s Website”:  The website of the Federal Reserve Bank of New York at http://www.newyorkfed.org, or any successor source.

Fee Letter”:  Individually and collectively, (i) that certain Fee Letter, dated as of August 12, 2019, between the Administrative Agent and Borrower and (ii) each additional Fee Letter executed between any Lender and Borrower, in each case, as amended, modified, waived, supplemented, restated or replaced from time to time.

Finance Lease”:  Any transaction in which the obligations of a lessee to pay rent or other amounts under a lease are on a triple net basis and are required to be classified and accounted for as a capital lease on the balance sheet of such lessee under generally accepted accounting principles in the United States.

Financial Asset”:  The meaning specified in Section 8‑102(a)(9) of the UCC.

Financial Sponsor”:  Any Person, including any Subsidiary of such Person, whose principal business activity is acquiring, holding, and selling equity or preferred equity investments (including controlling interests) in otherwise unrelated companies that each are distinct legal entities with separate management, books and records and bank accounts, whose operations are not integrated with one another and whose financial condition and creditworthiness are independent of the other companies so owned by such Person.

Financing Subsidiary”: An SPE Subsidiary.

First Lien Last Out Loan”:  A Loan that would otherwise be a First Lien Loan except that at any time prior to and/or after an event of default under the related loan agreement of the related Obligor, any portion of such Loan will be repaid after one or more tranches of first lien loans issued by the same Obligor have been paid in full in accordance with a specific waterfall of payments; provided that the Administrative Agent may, in its sole discretion, designate an Eligible Loan that would otherwise constitute a First Lien Last Out Loan as a First Lien Loan.

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First Lien Loan:  A Loan (i) that is secured by a valid first priority perfected security interest or lien in, to or on specified collateral securing the Obligor’s obligations under such Loan (whether or not such Loan is also secured by any lower priority security interest or lien on other collateral), subject to purchase money liens and customary liens for taxes or regulatory charges not then due and payable and other permitted liens under the Underlying Instruments (provided that such permitted liens do not secure indebtedness for borrowed money), and liens accorded priority by law in favor of the United States or any State or agency (except as otherwise provided in this definition), (ii) for which the Borrower determines in good faith that the value or the enterprise value of the related Obligor (as determined by Borrower in accordance with a methodology reasonably acceptable to Administrative Agent) of the collateral securing such Loan on the date such Loan is first included in the Borrowing Base, or on the date that any Value Adjustment Event occurs equals or exceeds the outstanding principal balance of such Loan plus the aggregate outstanding balances of all other loans of equal seniority secured by a security interest in the same collateral, (iii) that is not (and is not expressly permitted by its terms to become) subordinate in right of payment to any other obligation for borrowed money of the Obligor and (iv) that is not secured solely or primarily by the Capital Stock of its Obligor or any of such Obligor’s Affiliates.  For the avoidance of doubt, a First Lien Last Out Loan shall not constitute a First Lien Loan unless the Administrative Agent, in its sole discretion, designates such Eligible Loan that would otherwise constitute a First Lien Last Out Loan as a First Lien Loan in the related approval notice.

Fitch”:  Fitch, Inc. or any successor thereto.

Foreign Lender”:  A Lender that is not a U.S. Tax Person.

Funding Date”:  In the case of any Loan Advance, the proposed Business Day on which a Loan Advance is to be made after the receipt by the Administrative Agent and Lenders of a Funding Notice, subject to the required notice provisions of and together with the other required deliveries in accordance with Section 2.2.

Funding Notice”:  A notice in the form of Exhibit A‑1 requesting an Advance, including the items required by Section 2.2.

GAAP”:  Generally accepted accounting principles as in effect from time to time in the United States.

General Intangible”:  The meaning specified in Section 9‑102(a)(42) of the UCC.

Governing Documents”:  (a) With respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non‑U.S. jurisdiction), (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture or other applicable agreement of formation or organization and, if applicable, any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.

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Governmental Authority:  With respect to any Person, any nation or government, any state or other political subdivision thereof, any central bank (or similar monetary or regulatory authority) thereof, any body or entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government and any court or arbitrator having jurisdiction over such Person (including any supra-national body exercising such powers or functions, such as the European Union or the European Central Bank).

Guarantee Obligation”:  As to any Person (the “guaranteeing person”), any obligation of (a) the guaranteeing person or (b) another Person (including any bank under any letter of credit) to induce the creation of which the guaranteeing person has issued a reimbursement, counterindemnity or similar obligation, in either case guaranteeing or in effect guaranteeing any Indebtedness, leases, dividends or other obligations (the “primary obligations”) of any other third Person (the “primary obligor”) in any manner, whether directly or indirectly, including any obligation of the guaranteeing person, whether or not contingent, (i) to purchase any such primary obligation or any Property constituting direct or indirect security therefor, (ii) to advance or supply funds (1) for the purchase or payment of any such primary obligation or (2) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (iii) to purchase Property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iv) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided, however, that the term “Guarantee Obligation” shall not include endorsements of instruments for deposit or collection, or customary indemnification agreements, in each case, entered into in the ordinary course of business.  The terms “Guarantee” and “Guaranteed” used as a verb shall have a correlative meaning.  The amount of any Guarantee Obligation of any guaranteeing person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing person’s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

Hedging Agreement”: Any interest rate protection agreement, foreign currency exchange protection agreement, commodity price protection agreement, or other interest, currency exchange rate or commodity hedging arrangement.

Increased Commitment”:  The meaning specified in Section 2.18.

Increased Costs”:  Any amounts required to be paid by the Borrower to an Indemnified Party pursuant to Section 2.12.

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Indebtedness:  With respect to any Person at any date without duplication, (a) all indebtedness of such Person for borrowed money (whether by loan or the issuance and sale of debt securities) or for the deferred purchase price of Property or services (other than current trade liabilities incurred in the ordinary course of business and payable in accordance with customary practices), (b) any other indebtedness of such Person which is evidenced by a note, bond, debenture or similar instrument, (c) all obligations of such Person in respect of letters of credit, acceptances or similar instruments issued or created for the account of such Person, (d) all liabilities secured by (or for which the holder of such obligations has an existing right, contingent or otherwise, to be secured by) any Lien on any Property owned by such Person even though such Person has not assumed