Exhibit 10.28


 


FIRST AMENDMENT TO CREDIT AND SECURITY AGREEMENT


 


This FIRST
AMENDMENT TO CREDIT AND SECURITY AGREEMENT, dated as of October 14, 2015 (this “Amendment”), among BDCA-CB
Funding, LLC, as borrower (the “Borrower”), the Lenders (as defined below) party hereto, Citibank, N.A., as
administrative agent (the “Administrative Agent”), and Business Development Corporation of America, as collateral
manager (in such capacity, “Collateral Manager”).


 


WHEREAS, the
Borrower, Collateral Manager, the Administrative Agent, U.S. Bank National Association, as collateral agent (in such capacity,
the “Collateral Agent”) and as custodian (in such capacity, the “Custodian”), and the financial
institutions from time to time party thereto as lenders (the “Lenders”) are parties to the Credit and Security Agreement,
dated as of June 27, 2014 (as in effect immediately prior to the effectiveness of this Amendment, the “Existing Credit
Agreement”, and as amended by this Amendment and as may be further amended, supplemented or otherwise modified and in
effect from time to time, the “Amended Credit Agreement”; except as otherwise defined in this Amendment,
terms defined in the Amended Credit Agreement are used herein as defined therein).


 


WHEREAS, the
Borrower and the Collateral Manager request that the Lenders and the Administrative Agent amend the Existing Credit Agreement upon
and subject to the terms and conditions set forth in this Amendment.


 


WHEREAS, these
recitals shall be construed as part of this Amendment.


 


NOW THEREFORE,
in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:


 


Section
1. Amendments to the Existing Credit Agreement. From and after the Amendment Effective Date, the Existing Credit Agreement
shall be amended as follows:


 


1.01.     References
Generally. References in the Existing Credit Agreement (including references to the Existing Credit Agreement as amended hereby)
to “this Agreement” (and indirect references such as “hereunder”, “hereby”, “herein”
and “hereof”) and each reference to the Existing Credit Agreement in the other Facility Documents (and indirect references
such as “thereunder”, “thereby”, “therein” and “thereof”) shall be deemed to be
references to the Existing Credit Agreement as amended hereby.


 


1.02.     Amended
Language. Section 1.01 of the Existing Credit Agreement is hereby amended as follows:


 


(a)     The definition of “Advance
Rate” is hereby amended and restated as follows:


 


“Advance Rate”
means, as of any date of determination, (x) for any Standard Collateral Loan, 75%, (y) for any Unquoted / Single-Bid Collateral
Loan, 60%, and (z) for any other Collateral Loan, a rate to be determined by the Administrative Agent on a case-by-case basis
in its sole discretion.”


 




     


     


    

  


(b)     Clause (h) of the definition
of “Collateral Manager Default” is hereby amended and restated as follows:


 


“(h)   So
long as the Collateral Manager is the Equityholder or an Affiliate thereof, any three (3) Key People (or replacements reasonably
acceptable to the Administrative Agent) shall (i) not be officers, employees or partners of the Equityholder, AR Capital, LLC
(“ARC”), or AR Global Investments, LLC (“AR Global”), as applicable, or (ii) not be actively
involved in the management of the Equityholder, ARC or AR Global, including, but not limited to, general management, management
of the Collateral portfolio, underwriting, the credit approval process and credit monitoring activities, other than due to temporary
absences for family leave, and such persons are not replaced with other individuals reasonably acceptable to the Administrative
Agent within 60 days;”


 


(c)     Clause (a) of the definition
of “Concentration Limitations” is hereby amended and restated as follows:


 


“(a) not more than 5.00%
consists of obligations of any one Obligor (and Affiliates thereof);”


 


(d)     The definition of “Final Maturity Date”
is hereby amended and restated as follows:


 


“Final Maturity Date” means
June 27, 2018.”


 


(e)     The definition of “Management
Agreement” is hereby amended as follows:


 


“Management Agreement” means the
Amended and Restated Investment Advisory Agreement and Management Services Agreement, dated as of June 23, 2011, between BDCA
and BDCA Adviser, LLC, or any comparable investment advisory agreement entered into in replacement thereof between BDCA and BDCA
Adviser, LLC that is approved by both a majority of the non-interested directors and a majority of the outstanding stockholders
of BDCA.”


 


(f)     The definition of “Reinvestment
Period” is hereby amended and restated as follows:


 


“Reinvestment Period” means the
period from and including the Closing Date to and including the earliest of (a) the date that is three (3) years after the Closing
Date and (b) the date of the termination of the Commitments pursuant to Section 6.01.”


 


Section
2. Representations and Warranties of the Borrower and Collateral Manager. The Borrower and Collateral Manager represent
and warrant to the Administrative Agent, the Lenders, the Collateral Agent and the Custodian that as of the Amendment Effective
Date:


 


2.01.     each
of the representations and warranties set forth in the Amended Credit Agreement and in the other Facility Documents are true and
correct in all material respects (or in all respects for such representations and warranties that are by their terms already qualified
as to materiality) as of the date hereof, except to the extent that such representations and warranties specifically refer to an
earlier date, in which case they shall be true and correct in all material respects (or in all respects for such representations
and warranties that are by their terms already qualified as to materiality) as of such earlier date;


 




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2.02.     both
immediately before and after giving effect to this Amendment and the transactions contemplated hereby, no Default, Event of Default
or Collateral Manager Default shall have occurred and be continuing, or would result therefrom;


 


2.03.     no action,
suit or proceeding (including, without limitation, any inquiry or investigation) shall be pending or threatened with respect to
the financing contemplated hereby or any documentation executed in connection therewith, and no injunction or other restraining
order shall have been issued or a hearing therefor be pending or noticed with respect to this Amendment or the transactions contemplated
hereby;


 


2.04.     all
necessary governmental and material third party approvals and/or consents in connection with the transactions contemplated by this
Amendment and otherwise referred to herein shall have been obtained and remain in effect; and


 


2.05.     each
of the conditions in Section 3 hereof has been satisfied or waived by the Administrative Agent (other than such conditions to the
extent required to be satisfactory to the Administrative Agent or the Lenders).


 


Section 3.
Conditions Precedent. The amendments to the Existing Credit Agreement set forth in Section 1 above shall become effective
as of the date (the “Amendment Effective Date”), upon which each of the following conditions precedent shall
be satisfied or waived:


 


3.01.     Execution.
The Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, the Collateral Manager and
the Required Lenders.


 


3.02.     Administrative
Agent Fee. The Borrower shall have paid the administrative agent fee, as set forth in the Administrative Agent Fee Letter Agreement,
dated as of the date hereof (the “Administrative Agent Fee Letter”), by and among the Borrower, the Collateral
Manager and the Administrative Agent.


 


3.03.     Costs
and Expenses. The Borrower shall have paid all reasonable and documented out-of-pocket costs and expenses of the
Administrative Agent, the Collateral Agent, and the Custodian incurred in connection with this Amendment payable pursuant to
Section 12.04 of the Amended Credit Agreement, including without limitation all reasonable and documented fees and
out-of-pocket expenses of counsel to the Administrative Agent incurred in connection with the closing of the transactions
contemplated this Amendment to the extent invoiced at least one (1) Business Day prior to the Amendment Effective Date.


 


3.04.     Certain
Documents. The Administrative Agent shall have received each of the following, unless otherwise agreed by the Administrative
Agent:


 


(a)     a fully executed copy of
this Amendment;


 


(b)     a fully executed copy of
the Administrative Agent Fee Letter; and


 


(c)     such other instruments,
certificates and documents from the Borrower or the Collateral Manager as the Administrative Agent, any Lender, the Collateral
Agent or the Custodian shall have reasonably requested.


 




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Section
4. Reference to and Effect Upon the Existing Credit Agreement.


 


4.01.     Except
as specifically amended or waived above, the Existing Credit Agreement and the other Facility Documents shall remain unchanged
and in full force and effect and are hereby ratified and confirmed.


 


4.02.     The
execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of the Administrative
Agent or any Lender under the Existing Credit Agreement or any Facility Document, nor constitute a waiver of any provision of the
Existing Credit Agreement or any Facility Document.


 


Section
5. Reaffirmation. Each of the Borrower and the Collateral Manager hereby reaffirms its obligations under each Facility
Document to which it is a party. The Borrower hereby reaffirms the grant of security contained in Section 7.01(a) of the Credit
Agreement.


 


Section
6. Miscellaneous. This Amendment is a Facility Document for all purposes of the Amended Credit Agreement. This Amendment
may be executed in any number of counterparts, and by different parties hereto on separate counterpart signature pages, and all
such counterparts taken together shall be deemed to constitute one and the same instrument. Delivery of a counterpart signature
page by facsimile transmission or by e-mail transmission of an Adobe portable document format file (also known as a “PDF”
file) shall be effective as delivery of a manually executed counterpart signature page. Section headings used in this Amendment
are for reference only and shall not affect the construction of this Amendment.


 


Section
7. GOVERNING LAW. THIS AMENDMENT, AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT AND ANY CLAIM,
CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS
AMENDMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF
NEW YORK.


 


[signature pages follow]


 




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IN WITNESS WHEREOF, the parties hereto have
caused this Amendment to be duly executed and delivered as of the day and year first above written.


 


	 	BDCA-CB Funding, LLC,

as Borrower
	 	 
	 	
        By: Business Development Corporation of
        America,

        its sole member

	 	 
	 	By:	/s/ Robert K. Grunewald
	 	 	Name: Robert K. Grunewald
	 	 	Title: President & CIO & COO


 


[Signature Page to Consent and First Amendment
to Credit and Security Agreement]


 




     


     


    

  


	 	BUSINESS DEVELOPMENT CORPORATION
	 	OF AMERICA, as Collateral Manager
	 	 
	 	By:	/s/ Robert K. Grunewald
	 	 	Name: Robert K. Grunewald 
	 	 	Title: President & CIO & COO


 


[Signature Page to First Amendment to Credit
and Security Agreement]


 




     


     


    

  


	 	
        CITIBANK, N.A., as Administrative Agent and as a

        Lender

	 	 
	 	By:	/s/ Vincent Nocerino
	 	 	Name: Vincent Nocerino
	 	 	Title: Vice President


 


[Signature Page to Consent and First Amendment
to Credit and Security Agreement]