00120371; v1} - 5 - 49298698.4 (c) money market funds (including funds of Custodian or its Affiliates) or United States government securities funds designed to maintain a fixed share price and high liquidity; or (d) such other investments as may be...
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{00120371; v1} - 1 - 49298698.4 _____________________ CUSTODY AGREEMENT _____________________ dated as of May 9, 2024 by and between NEW MOUNTAIN GUARDIAN IV HOLDINGS, L.L.C. (“Company”) and WESTERN ALLIANCE TRUST COMPANY, N.A. (“Custodian”) {00120371; v1} - 2 - 49298698.4 TABLE OF CONTENTS 1 DEFINITIONS ........................................................................................................................ 3 2 APPOINTMENT OF CUSTODIAN ...................................................................................... 8 3 DUTIES OF CUSTODIAN .................................................................................................... 8 4 REPORTING ........................................................................................................................ 17 5 DEPOSIT IN U.S. SECURITIES SYSTEMS ...................................................................... 17 6 SECURITIES HELD OUTSIDE OF THE UNITED STATES ............................................ 18 7 CERTAIN GENERAL TERMS ........................................................................................... 21 8 COMPENSATION OF CUSTODIAN ................................................................................. 23 9 RESPONSIBILITY OF CUSTODIAN ................................................................................ 24 10 SECURITY CODES ............................................................................................................. 29 11 TAX LAW ............................................................................................................................ 29 12 EFFECTIVE PERIOD, TERMINATION AND AMENDMENT........................................ 29 13 REPRESENTATIONS AND WARRANTIES..................................................................... 31 14 PARTIES IN INTEREST; NO THIRD-PARTY BENEFIT ................................................ 31 15 NOTICES .............................................................................................................................. 31 16 CHOICE OF LAW; JURISDICTION AND WAIVER OF JURY TRIAL .......................... 33 17 ENTIRE AGREEMENT; COUNTERPARTS ..................................................................... 33 18 AMENDMENT; WAIVER .................................................................................................. 33 19 SUCCESSOR AND ASSIGNS ............................................................................................ 33 20 SEVERABILITY .................................................................................................................. 34 21 U.S.A. PATRIOT ACT ......................................................................................................... 34 22 REQUEST FOR INSTRUCTIONS ...................................................................................... 34 23 OTHER BUSINESS ............................................................................................................. 35 24 REPRODUCTION OF DOCUMENTS ................................................................................ 35 SCHEDULES SCHEDULE A – Initial Authorized Persons SCHEDULE B – Asset File Requirements {00120371; v1} - 3 - 49298698.4 This CUSTODY AGREEMENT (this “Agreement”) is dated as of May 9, 2024, and is by and between NEW MOUNTAIN GUARDIAN IV HOLDINGS, L.L.C. (and any successor or permitted assign, the “Company”), a limited liability company organized under the laws of Delaware and WESTERN ALLIANCE TRUST COMPANY, N.A. (or any successor or permitted assign acting as custodian hereunder, the “Custodian”), a national banking association. RECITALS WHEREAS, Company is a wholly owned subsidiary of a closed-end management investment company that has elected to be treated as a business development company under the 1940 Act (as defined below), and requires a custodian to hold its assets; WHEREAS, Custodian is a limited-purpose national trust bank chartered and supervised by the Office of the Comptroller of the Currency that offers corporate trust and levered-loan administration services to institutional and commercial entities; WHEREAS, Company desires to retain Custodian to act as custodian for certain of Company’s Securities (as defined below) and cash, which shall be held and administered by Custodian pursuant to this Agreement and in compliance with Section 17(f) of the 1940 Act, subject to the terms and conditions of this Agreement. NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties hereto agree as follows: 1 DEFINITIONS 1.1 Defined Terms. In addition to terms expressly defined elsewhere herein, the following words shall have the following meanings as used in this Agreement: “1940 Act” means the Investment Company Act of 1940, as amended. “Affiliate” has the meaning set forth in Section 2(a)(3) of the 1940 Act. “Agreement” means this Custody Agreement (as the same may be amended from time to time in accordance with the terms hereof). “Applicable Law” has the meaning set forth in Section 21.1 of this Agreement. “Approved Destination Institution List” has the meaning set forth in Section 3.7(g) of this Agreement. “Asset File” means, with respect to each Security for which documents are delivered to Custodian, the combined set of documents identified on the document checklist provided as Schedule B to this Agreement, as applicable. “Authorized Person” has the meaning set forth in Section 7.4(a) of this Agreement. “Bank” has the meaning set forth in Section 2(a)(5) of the 1940 Act. {00120371; v1} - 4 - 49298698.4 “Business Day” means Monday through Friday, excluding Saturday, Sunday or any bank or legal holiday. “Cash Accounts” means the segregated trust accounts on the books and records of Custodian established by the Custodian held for the benefit of its clients to which the Custodian shall deposit or credit and hold the cash received by it pursuant to this Agreement and any cash or Proceeds received by it from time to time from or with respect to the Securities or the sale of the Securities of the Company, as applicable. Specifically, the Collateral Account with account number 00000000, and sub-accounts the Interest with account number 00000000 and Principal 00000000. “Certificated Security” has the meaning ascribed to such term in Section 8-102(4) of the UCC. “Company” has the meaning set forth in the first paragraph of this Agreement. “Confidential Information” means any databases, computer programs, screen formats, screen designs, report formats, interactive design techniques, and other similar or related information that may be furnished to the Company by the Custodian from time to time pursuant to this Agreement. “Custodial Account” means the Cash Accounts and the Securities Account, collectively. “Custodian” has the meaning set forth in the first paragraph of this Agreement. “Deposit Placement Program” means a network of FDIC-insured depository institutions and/or their affiliates who are FDIC-insured depository institutions (as defined in Section 3 of the Federal Deposit Insurance Act), that have entered into agreements with IntraFi Network LLC and/or its successors or assigns to collect and/or place deposits with the purpose of providing each participating institution’s depositors increased access to FDIC deposit insurance. “Depository Bank” has the meaning set forth in Section 3.3 of this Agreement. “Eligible Foreign Custodian” has the meaning set forth in SEC Rule 17f-5(a)(1), including a majority-owned or indirect subsidiary of a U.S. Bank (as defined in SEC Rule 17f-5(a)(7)) or a bank holding company meeting the requirements set forth in SEC Rule 17f-5 or by other appropriate action of the SEC; or a foreign branch of a Bank meeting the requirements of a custodian under Section 17(f) of the 1940 Act; however, the term does not include any Eligible Securities Depository. “Eligible Investment” means any investment that at the time of its acquisition is one or more of the following: (a) United States government and agency obligations; (b) interest bearing deposits in United States Dollars held at Depository Bank or in a Deposit Placement Program;
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{00120371; v1} - 5 - 49298698.4 (c) money market funds (including funds of Custodian or its Affiliates) or United States government securities funds designed to maintain a fixed share price and high liquidity; or (d) such other investments as may be agreed to in writing by the Company and the Custodian from time to time. “Eligible Securities Depository” has the meaning set forth in Section (b)(1) of SEC Rule 17f- 7 under the 1940 Act. “FDIC” means the Federal Deposit Insurance Corporation. “Federal Reserve Bank Book-Entry System” means a depository and securities transfer system operated by the Federal Reserve Bank of the United States on which are eligible to be held all United States Government direct obligation bills, notes and bonds. “Foreign Securities” means Securities for which the primary market is outside the United States. “Foreign Sub-custodian” means and includes any sub-custodian appointed to administer any of the Company’s Foreign Securities, pursuant to Section 6 below. “Loan Assets” has the meaning set forth in Section 3.4(b) of this Agreement. “Loan Assignment Agreement” has the meaning set forth in Section 3.4(b) of this Agreement. “New DI” has the meaning set forth in Section 3.7(g) of this Agreement. “Party” or “Parties” means, individually, Company or Custodian and, collectively, Company and Custodian. “Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company, trust (including any beneficiary thereof) unincorporated organization, or any government or agency or political subdivision thereof. “Proceeds” means, collectively, (i) the net cash proceeds to the Company of any offering by the Company of any class of securities issued by the Company, (ii) all cash distributions, earnings, dividends, fees and other cash payments paid on the Securities by or on behalf of the issuer or obligor thereof, or applicable paying agent, (iii) the net cash proceeds of the sale or other disposition of the Securities pursuant to the terms of this Agreement (and any earnings from investment of the foregoing) and (iv) the net cash proceeds to the Company of any borrowing or other financing by the Company. “Proper Instructions” means instructions, including standing instructions, received by the Custodian in form acceptable to it, from the Company, in any of the following forms acceptable to the Custodian: {00120371; v1} - 6 - 49298698.4 (a) in writing signed by an Authorized Person and delivered by hand, by mail, by overnight courier or by facsimile; (b) by electronic mail from an Authorized Person using the email provided for that individual on Schedule A; (c) in a communication utilizing access codes effected between electro-mechanical or electronic devices; (d) by SWIFT, SFTP, online portal, or any other similar electronic method where an Authorized Person is not able to be identified and the Custodian shall be permitted to accept such instruction as a Proper Instruction deemed to be received from an Authorized Person; or (e) such other means as may be agreed upon from time to time by the Custodian and Company. “SEC” means the Securities and Exchange Commission. “Securities” means, collectively, (i) the investments (including relevant Eligible Investments) acquired by, or in the case of Eligible Investments, on behalf of, the Company and/or delivered to the Custodian by the Company from time to time during the term of, and pursuant to the terms of, this Agreement and (ii) all dividends in kind (e.g., non-cash dividends) from the investments described in clause (i) and includes stocks, shares, bonds, debentures, notes, mortgages or other obligations and any certificates, receipts, warrants or other instruments representing rights to receive, purchase, or subscribe for the same, or evidencing or representing any other rights or interests therein, or in any property or assets. “Securities Account” means the segregated trust account to be established at the Custodian to which the Custodian shall deposit or credit the Securities received by it pursuant to this Agreement and shall be designated the “New Mountain Guardian IV Holdings, LLC Securities Account.” “Securities Depository” means The Depository Trust Company and/or an Eligible Securities Depository. “Securities System” means the Federal Reserve Book-Entry System, a clearing agency which acts as a Securities Depository, or another book entry system for the central handling of securities established by an Eligible Securities Depository. “Street Delivery Custom” means a custom of the United States securities market to deliver securities which are being sold to the buying broker for examination to determine that the securities are in the proper form. “Street Name” means the form of registration in which the securities are held by a broker who is delivering the securities to another broker for the purposes of sale, it being an accepted custom in the United States securities industry that a security in the name of the broker in this {00120371; v1} - 7 - 49298698.4 manner is in proper form for delivery to the buyer and that a security may be re-registered by the buyer in the ordinary course. “Template” shall have the meaning set forth in Section 3.10(c) of this Agreement. “UCC” means the Uniform Commercial Code as in effect in the State of New York. “Uncertificated Security” means a Security that is not represented by a physical certificate. “Underlying Agreement” means, with respect to any Security, the limited liability company agreement, subscription agreement or other documents evidencing the Company’s investment in the related issuer. “Underlying Documents” means, with respect to any Security for which the Company delivers an Asset File to the Custodian, the documents listed on Schedule B to this Agreement, which documents may include the related Underlying Agreement together with any other offering memorandums, purchase agreements, security documents, other agreements, other ancillary documents, and instruments executed or delivered in connection with the Company’s investment in the issuer thereof, including a copy of the register evidencing registration of the membership or equity interest of the Company on the books and records of the applicable issuer. 1.2 Construction. In this Agreement, unless the contrary intention appears: (a) any reference to this Agreement or another agreement or instrument refers to such agreement or instrument as the same may be amended, modified or otherwise rewritten from time to time; (b) a reference to a statute, ordinance, code or other law includes regulations and other instruments under it and consolidations, amendments, re-enactments or replacements of any of them; (c) any term defined in the singular form may be used in, and shall include, the plural with the same meaning, and vice versa; (d) a reference to a Person includes a reference to the Person’s executors, custodian, successors and permitted assigns; (e) an agreement, representation or warranty in favor of two or more Persons is for the benefit of them jointly and severally; (f) an agreement, representation or warranty on the part of two or more Persons binds them jointly and severally; (g) a reference to the term “including” means “including, without limitation,” and {00120371; v1} - 8 - 49298698.4 (h) a reference to any accounting term is to be interpreted in accordance with generally accepted accounting principles and practices in the United States, consistently applied, unless otherwise instructed by the Company. 1.3 Headings. Headings are inserted for convenience and do not affect the interpretation of this Agreement. 2 APPOINTMENT OF CUSTODIAN 2.1 Appointment and Acceptance. The Company hereby appoints the Custodian as custodian of certain Securities and cash owned by the Company and delivered to and/or received by the Custodian from time to time during the period of this Agreement, on the terms and conditions set forth in this Agreement (which shall include any addendum or amendment hereto which are hereby incorporated herein and made a part of this Agreement), and the Custodian hereby accepts such appointment and agrees to perform the services and duties set forth in this Agreement with respect to it, subject to and in accordance with the provisions hereof. Any Custodial Account may contain any number of accounts for the convenience of the Custodian or as required by the Company for convenience in administering such accounts. 2.2 Instructions. The Company agrees that it shall from time to time provide, or cause to be provided, to the Custodian all necessary instructions and information, and shall respond promptly to all inquiries and requests of the Custodian as may reasonably be necessary to enable the Custodian to perform its duties hereunder. 2.3 Company Responsible For Directions. The Company is solely responsible for directing the Custodian with respect to deposits to, withdrawals from and transfers to or from the Custodial Account. Without limiting the generality of the foregoing, the Custodian has no responsibility for compliance with any restrictions, covenants, limitations or obligations to which the Company may be subject or for which it may have obligations to third-parties in respect of the Custodial Account. In addition, the Custodian shall have no liability for the acts or omissions of any other Person, or for the application or misapplication of any funds by another Person or by the Custodian, in each case that occur at the direction of the Company. The Company shall be solely responsible for properly instructing all applicable payors to make all appropriate payments to the Custodian for deposit to the Custodial Account, and for properly instructing the Custodian with respect to the allocation or application of all such deposits. 3 DUTIES OF CUSTODIAN 3.1 Segregation. All Securities and non-cash property held by the Custodian, as applicable, for the account of the Company (other than Securities maintained in a Securities Depository or Securities System) shall be physically segregated from other Securities and non-cash property in the possession of the Custodian and shall be identified as subject to this Agreement. 3.2 Securities Custody Account. The Custodian shall open and maintain a segregated trust account in the name of the Company, subject only to order of the Custodian, in which the Custodian shall enter and carry, subject to Section 3.4, certain Securities of the Company
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{00120371; v1} - 13 - 49298698.4 or generate banking income for which such bank shall not be required to account to the Company. (e) The Custodian shall be authorized to open such additional accounts, or sub- accounts, as may be necessary or convenient for the administration of its duties hereunder, with notice to be provided to the Company. (f) For purposes of this Agreement, a Deposit Placement Program is offered through Depository Bank. If Company instructs Custodian to invest cash or cash Proceeds in the Deposit Placement Program, Company acknowledges and agrees that Custodian, as agent for Company, will be conducting the requisite transactions through Depository Bank and, as such, Company agrees to be bound by Depository Bank’s terms and conditions of the available Deposit Placement Program, which is included as Schedule C (ICS Deposit Placement Agreement and Custody Agreement) to this Agreement and incorporated by reference (as applicable). Company acknowledges and agrees that participation in the Deposit Placement Program may require Company to provide Depository Bank with additional information (including but not limited to the information requested in the schedule of Schedule C) or complete Depository Bank’s Deposit Placement Program enrollment forms, as may be required by Depository Bank or the Deposit Placement Program administrators. Company hereby authorizes Custodian to complete and/or sign such forms on Company’s behalf and to provide any necessary information to Depository Bank in order to act upon Proper Instructions provided by Company. (g) If the Company chooses to participate in the Deposit Placement Program, the Company shall review the list of Destination Institutions in the Deposit Placement Program and provide Custodian a list of approved Destination Institutions prior to the placement of any cash (“Approved Destination Institution List”). The Custodian agrees, each Business Day, to review the Destination Institution list published by the Deposit Placement Program and place any institutions not on the Approved Destination List on the Company’s Exclusions List. Notwithstanding the terms and conditions of the ICS Deposit Placement Agreement included as Schedule C to this Agreement, including Section 6.4 of the ICS Deposit Placement Agreement, the Company agrees to provide the Custodian access to their Depositor Control Panel and the Custodian will reject any Destination Institutions on the Company’s Proposed Placement List during the Depositor Placement Review period that are not on the Approved Destination List (“New DI”). Upon request from the Company, or promptly following the close of the most recent calendar quarter, the Custodian shall provide to the Company its Exclusions List. Thereafter, the Company will review the Exclusions List and provide the Custodian any Destination Institutions to be added to the Approved Destination Institution List. If Custodian becomes aware that a Destination Institution no longer meets the criteria under Section 13.2(c) of this Agreement, the Custodian agrees to add said Destination Institution to Company’s Exclusions List until such time as the subject Destination Institution meets the criteria of Section 13.2(c). For the purposes of this Section 3.7(g), any capitalized term not defined herein shall be defined according {00120371; v1} - 14 - 49298698.4 to the ICS Deposit Placement Agreement included as Schedule C to this Agreement. 3.8 Foreign Exchange. (a) Upon the receipt of Proper Instructions, the Custodian, its agents or its sub- custodian may (but shall not be obligated to) enter into all types of contracts for foreign exchange on behalf of the Company, upon terms acceptable to the Custodian and the Company (in each case at the Company’s expense), including transactions entered into with the Custodian, its sub-custodian or any Affiliates of the Custodian or the sub-custodian. The Custodian shall have no liability for any losses incurred in or resulting from the rates obtained in such foreign exchange transactions; and absent specific and acceptable Proper Instructions, the Custodian shall not be deemed to have any duty to carry out any foreign exchange on behalf of the Company. The Custodian shall be entitled at all times to comply with any legal or regulatory requirements applicable to currency or foreign exchange transactions. (b) The Company acknowledges that the Custodian, any sub-custodian, or any Affiliates of the Custodian or any sub-custodian involved in any such foreign exchange transactions may make a margin or generate banking income from foreign exchange transactions entered into pursuant to this section for which they shall not be required to account to the Company. 3.9 Collection of Income. The Custodian, its agents or its sub-custodian shall use commercially reasonable efforts to collect on a timely basis all income and other payments with respect to the Securities held hereunder to which the Company shall be entitled, to the extent consistent with usual custom in the securities custodian business in the United States. Such efforts shall include collection of interest income, dividends and other payments with respect to registered domestic securities if on the record date with respect to the date of payment by the issuer the Security is registered in the name of the Custodian or its nominee (or in the name of its agent or sub-custodian, or their nominee); and interest income, dividends and other payments with respect to bearer domestic securities if, on the date of payment by the issuer, such Securities are held by the Custodian or its sub-custodian or agent; provided, however, that in the case of Securities held in Street Name, the Custodian shall use commercially reasonable efforts only to timely collect income. In no event shall the Custodian’s agreement herein to collect income be construed to obligate the Custodian to commence, undertake or prosecute any legal proceedings. 3.10 Payment of Moneys. (a) Upon receipt of Proper Instructions, which may be standing instructions, the Custodian shall pay out from the Cash Accounts (or remit to its agents or its sub- custodian, and direct them to pay out) moneys of the Company on deposit therein in the following cases: {00120371; v1} - 15 - 49298698.4 (i) upon the purchase of Securities for the Company pursuant to such Proper Instructions; and such purchase may, unless and except to the extent otherwise directed by Proper Instructions, be carried out by the Custodian: (A) in accordance with the customary or established practices and procedures in the jurisdiction or market where the transactions occur, including delivering money to the seller thereof or to a dealer therefor (or any agent for such seller or dealer) against expectation of receiving later delivery of such securities; or (B) in the case of a purchase effected through a Securities System, in accordance with the rules governing the operation of such Securities System; (ii) for the purchase or sale of foreign exchange or foreign exchange agreements for the account of the Company, including transactions executed with or through the Custodian, its agents or its sub-custodian, as contemplated by Section 3.7 above; or (iii) for any other purpose directed by the Company, but only upon receipt of Proper Instructions specifying the amount of such payment, wire instructions and naming the Person or Persons to whom such payment is to be made. (b) At any time or times, the Custodian shall be entitled to pay (i) itself from the Cash Accounts, whether or not in receipt of express direction or instruction from the Company, any amounts due and payable to it pursuant to Section 8 hereof, and (ii) as permitted by Section 7.5, Section 9.4 or Section 12.5 below. (c) In the case of any wire transfer to the Company, the Custodian shall set up a wire template in its system (the “Template”) and will, with respect to the initial wire, complete a callback verification based on the instructions contained in the Template. If the instructions contained in the Template have not changed, the Custodian will not be required to complete a callback verification in respect of any subsequent wire transfers to the Company initiated by an Authorized Person. In the event there are any changes to the instructions in the Template, the Custodian will require a callback verification on the first wire being requested by Company after the changes to the Template. 3.11 Proxies. The Custodian will, with respect to the Securities held hereunder, use reasonable efforts to cause to be promptly executed by the registered holder of such Securities proxies received by the Custodian from its agents or its sub-custodian or from issuers of the Securities being held for the Company, without indication of the manner in which such proxies are to be voted, and upon receipt of Proper Instructions shall promptly deliver to the applicable issuer such proxies relating to such Securities. In the absence of such Proper Instructions, or in the event that such Proper Instructions are not received in a timely fashion, the Custodian shall be under no duty to act with regard to such proxies. Notwithstanding {00120371; v1} - 16 - 49298698.4 the above, neither Custodian nor any nominee of Custodian shall vote any of the Securities held hereunder by or for the account of the Company, except in accordance with Proper Instructions. 3.12 Communications Relating to Securities. The Custodian shall transmit promptly to the Company all written information (including proxies, proxy solicitation materials, notices, pendency of calls and maturities of Securities, solicitation of a vote or consent, and expirations of rights in connection therewith) received by the Custodian, from its agents or its sub-custodian or from issuers of the Securities being held for the Company. The Custodian shall have no obligation or duty to exercise any right or power, or otherwise to preserve rights, in or under any Securities unless and except to the extent it has received timely a Proper Instruction from the Company in accordance with the next sentence. The Custodian will not be liable for any untimely exercise of any right or power in connection with Securities at any time held by the Custodian, its agents or sub-custodian unless: (a) the Custodian has received Proper Instructions with regard to the exercise of any such right or power; (b) the Custodian, or its agents or sub-custodian are in actual possession of such Securities; and (c) in each case, at least three (3) Business Days prior to the date on which such right or power is to be exercised. It will be the responsibility of the Company to notify the Custodian of the Person to whom such communications must be forwarded under this Section. Notwithstanding the foregoing, the Custodian does not, and shall not be deemed to, assume any responsibility, and shall not incur any liability, for any act or omission to act with respect to any corporate action affecting the Securities or the rights of the Company in such Securities. 3.13 Records. The Custodian shall create and maintain complete and accurate records relating to its activities under this Agreement with respect to the Securities, cash or other property held for the Company under this Agreement in accordance with its standard practices and procedures, and as stated in Section 31(a)(1) of the 1940 Act. To the extent that the Custodian is able to do so, the Custodian shall provide assistance to the Company (at the Company’s reasonable request made from time to time) by providing sub-certifications regarding certain of its services performed hereunder to the Company in connection with the Company’s certification requirements pursuant to applicable law, including the Xxxxxxxx- Xxxxx Act of 2002, as amended, and to otherwise assist the Company meet its recordkeeping obligations under applicable law, including the 1940 Act and the rules and regulations thereunder. All such records shall be the property of the Company and shall at all times during the regular business hours of the Custodian be open for inspection by duly authorized officers, employees or agents of the Company (including its independent public accountants) and employees and agents of the SEC, upon reasonable request and prior notice and at the Company’s expense. The Custodian shall, at the Company’s request, supply the Company with a tabulation of Securities owned by the Company and held by the Custodian and shall,
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{00120371; v1} - 29 - 49298698.4 (f) any delay or failure of any company, corporation, or other body in charge of registering or transferring Securities in the name of the Custodian, the Company, the Custodian’s sub-custodians, nominees or agents or any consequential losses arising out of such delay or failure to transfer such Securities including non-receipt of bonus, dividends, distributions, and rights and other accretions or benefits; or (g) changes in applicable law, regulation or orders. 10 SECURITY CODES If the Custodian issues to the Company security codes, passwords or test keys in order that it may verify that certain transmissions of information, including Proper Instructions, have been originated by the Company, the Company shall take all commercially reasonable steps to safeguard any security codes, passwords, test keys or other security devices which the Custodian shall make available. 11 TAX LAW 11.1 Domestic Tax Law. The Custodian shall have no responsibility or liability for any obligations now or hereafter imposed on the Company or the Custodian as custodian of the Securities or the Proceeds, by the tax law of the United States or any state or political subdivision thereof or otherwise, including without limitation any obligations related to payment of taxes, withholding, certification and reporting requirements, claims for exemption or refund, additions for late payment interest, penalties and other expenses. The Company shall (or cause its accountants to) prepare and provide the appropriate parties with any tax filings, statements or reports that may be required by law or otherwise. The Custodian shall be kept indemnified by and be without liability to the Company for such obligations including taxes, (but excluding any income taxes assessable in respect of compensation paid to the Custodian pursuant to this Agreement) withholding, certification and reporting requirements, claims for exemption or refund, additions for late payment interest, penalties and other expenses (including legal expenses) that may be assessed against the Company, or the Custodian as custodian of the Securities or Proceeds. 11.2 Foreign Tax Law. It shall be the responsibility of the Company to notify the Custodian of the obligations imposed on the Company, or the Custodian as custodian of any foreign securities or related Proceeds, by the tax law of foreign (e.g., non-U.S.) jurisdictions, including responsibility for withholding and other taxes, assessments or other government charges, certifications and government reporting. The sole responsibility of the Custodian with regard to such tax law shall be to use reasonable efforts to cooperate with the Company with respect to any claims for exemption or refund under the tax law of the jurisdictions for which the Company has provided such information. 12 EFFECTIVE PERIOD, TERMINATION AND AMENDMENT 12.1 Effective Date. This Agreement shall become effective as of its due execution and delivery by each of the parties. This Agreement shall continue in full force and effect until terminated as hereinafter provided. This Agreement may only be amended by mutual written agreement {00120371; v1} - 30 - 49298698.4 of the parties hereto. This Agreement may be terminated by the Custodian or the Company pursuant to Section 12.2. 12.2 Termination. This Agreement shall terminate upon the earliest of (a) occurrence of the effective date of termination specified in any written notice of termination given by either party to the other not later than sixty (60) days prior to the effective date of termination specified therein, (b) such other date of termination as may be mutually agreed upon by the parties in writing and (c) automatically upon the execution of that certain Loan and Security Agreement among the Company, as borrower, New Mountain Guardian IV BDC, L.L.C., as collateral manager, as equityholder and as seller, Xxxxx Fargo Bank, national Association, as administrative agent, Western Alliance Trust Company, N.A., as collateral custodian, and certain other parties thereto (“Loan and Security Agreement”). In the case of termination pursuant to (c) hereof, the Company hereby instructs and authorizes the Custodian to keep the Cash Accounts open and the Cash Accounts will be subject to the Loan and Security Agreement thereafter termination of this Agreement. 12.3 Resignation. The Custodian may at any time resign under this Agreement by giving not less than sixty (60) days’ advance written notice thereof to the Company. Company may at any time remove Custodian under this Agreement by giving not less than sixty (60) days’ written notice thereof to Custodian. 12.4 Successor. Prior to the effective date of termination of this Agreement, or the effective date of the resignation or removal of the Custodian, as the case may be, the Company shall give Proper Instruction to the Custodian designating a successor custodian, if applicable. A successor custodian shall deliver a written acceptance of its appointment to the retiring custodian and to the Company. Thereupon the resignation or removal of the retiring custodian shall become effective, and the successor custodian shall have all the rights, powers, and duties of the Custodian under this Agreement. The retiring custodian shall, upon payment of its fees then unpaid, promptly transfer all property held by the Custodian to the successor custodian, subject to the lien provided for in Section 9.4. All costs incurred in connection with any resignation or removal hereunder shall be borne by the Company. If a successor custodian does not take office within 60 days after the retiring custodian resigns or is removed, the retiring custodian may, at the Company’s expense, petition any court of competent jurisdiction for the appointment of a successor custodian. Notwithstanding the replacement of the Custodian pursuant to this Section 12.4, the Company’s obligations under Section 8 and Section 9.4(a) shall continue for the benefit of the retiring custodian. 12.5 Payment of Fees. Upon termination of this Agreement or resignation of the Custodian, the Company shall pay to the Custodian such compensation, and shall likewise reimburse the Custodian for its costs, expenses and disbursements, as may be due as of the date of such termination or resignation (or removal, as the case may be). All indemnifications in favor of the Custodian under this Agreement shall survive the termination of this Agreement, or any resignation or removal of the Custodian. 12.6 Final Report. In the event of any resignation or removal of the Custodian, the Custodian shall provide to the Company a complete final report or data file transfer of any Confidential Information as of the date of such resignation or removal. {00120371; v1} - 31 - 49298698.4 13 REPRESENTATIONS AND WARRANTIES 13.1 Representations of the Company. The Company represents and warrants to the Custodian that: (a) it has the power and authority to enter into and perform its obligations under this Agreement, and it has duly authorized and executed this Agreement so as to constitute its valid and binding obligation; and (b) in giving any instructions which purport to be “Proper Instructions” under this Agreement, the Company will act in accordance with the provisions of its certificate of formation and operating agreement and any applicable laws and regulations. 13.2 Representations of the Custodian. The Custodian hereby represents and warrants to the Company that: (a) it is qualified to act as a custodian pursuant to Section 26(a)(1) of the 1940 Act; (b) the Company’s Securities and cash are held and administered by Custodian in compliance with the applicable provisions of Section 17(f) of the 1940 Act; (c) each Destination Institution (as defined in the ICS Deposit Placement Agreement attached hereto as Schedule C) in the Deposit Placement Program: (i) is an FDIC-insured depository institution (as defined in Section 3 of the Federal Deposit Insurance Act); and (ii) has total assets not less than $10,000,000; (d) it has the power and authority to enter into and perform its obligations under this Agreement; (e) it has duly authorized and executed this Agreement so as to constitute its valid and binding obligations; and (f) it maintains business continuity policies and standards that include data file backup and recovery procedures that comply with all applicable regulatory requirements. 14 PARTIES IN INTEREST; NO THIRD-PARTY BENEFIT This Agreement is not intended for, and shall not be construed to be intended for, the benefit of any third parties and may not be relied upon or enforced by any third parties (other than successors and permitted assigns pursuant to Section 19). 15 NOTICES Any Proper Instructions shall be given to the following address (or such other address as either party may designate by written notice to the other party), and otherwise any notices, approvals and {00120371; v1} - 32 - 49298698.4 other communications hereunder shall be sufficient if made in writing and given to the parties at the following address (or such other address as either of them may subsequently designate by notice to the other), given by (i) certified or registered mail, postage prepaid, (ii) recognized courier or delivery service, (iii) electronic mail or (iv) confirmed facsimile: (a) if to the Company, (i) for Proper Instructions, to: New Mountain Guardian IV Holdings, L.L.C. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxxx Telephone: (000) 000-0000 Email: xxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx and (ii) for all other notices, approvals and other communications, to: New Mountain Guardian IV Holdings, L.L.C. 0000 Xxxxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxx Xxxxxxxx Telephone: (000) 000-0000 Email: XXxxxxxxx@xxxxxxxxxxxxxxxxxx.xxx (b) if to the Custodian, to: Western Alliance Trust Company, N.A. Xxx Xxxx Xxxxxxxxxx Xxxxxx, Xxx 0000 Xxxxxxx, XX 00000 Attention: Corporate Trust – New Mountain Guardian IV Holdings, L.L.C. Email: XxxXxxxxxxx_XxxxxxxxXX@xxxxxxxxxxxxxxxxxxxx.xxx With copies to (which shall not constitute notice): Western Alliance Trust Company, N.A. 000 Xxxx & Xxxxxxx - Xxx. 000 Xxxxxxx, XX 00000 Attn: Corporate Trust – New Mountain Guardian IV Holdings, L.L.C. Western Alliance Trust Company, X.X. 0 X. Xxxxxxxxxx Xxxxxx, Xxx 0000
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{00120371; v1} - 33 - 49298698.4 Phoenix, AZ 85004 Attention: General Counsel 16 CHOICE OF LAW; JURISDICTION AND WAIVER OF JURY TRIAL 16.1 Choice of Law and Jurisdiction. This Agreement shall be construed, and the provisions thereof interpreted under and in accordance with and governed by the laws of the State of New York for all purposes (without regard to its choice of law provisions); except to the extent such laws are inconsistent with federal securities laws, including the 1940 Act, in which case such federal securities laws govern. 16.2 Waiver of Jury Trial. EACH OF THE CUSTODIAN AND THE COMPANY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 17 ENTIRE AGREEMENT; COUNTERPARTS 17.1 Complete Agreement. This Agreement constitutes the complete and exclusive agreement of the parties with regard to the matters addressed herein and supersedes and terminates as of the date hereof, all prior agreements or understandings, oral or written, between the parties to this Agreement relating to such matters. 17.2 Counterparts. This Agreement may be executed in any number of counterparts and all counterparts taken together shall constitute one and the same instrument. 17.3 Electronic Signatures. The exchange of copies of this Agreement and of signature pages by facsimile or e-mail transmission shall constitute effective execution and delivery of this Agreement as to the parties and may be used in lieu of the original Agreement for all purposes. Signatures of the parties transmitted by facsimile shall be deemed to be their original signatures for all purposes. 18 AMENDMENT; WAIVER 18.1 Amendment. This Agreement may not be amended except by an express written instrument duly executed by each of the Company and the Custodian. 18.2 Waiver. In no instance shall any delay or failure to act be deemed to be or effective as a waiver of any right, power or term hereunder, unless and except to the extent such waiver is set forth in an expressly written instrument signed by the party against whom it is to be charged. 19 SUCCESSOR AND ASSIGNS 19.1 Successors Bound. The covenants and agreements set forth herein shall be binding upon and inure to the benefit of each of the parties and their respective successors and permitted assigns. Neither party shall be permitted to assign their rights under this Agreement without {00120371; v1} - 34 - 49298698.4 the written consent of the other party; provided, however, that the foregoing shall not limit the ability of the Custodian to delegate certain duties or services to or perform them through agents or attorneys appointed with due care as expressly provided in this Agreement. 19.2 Merger and Consolidation. Any corporation or association into which the Custodian may be merged or converted or with which it may be consolidated, or any corporation or association resulting from any merger, conversion or consolidation to which the Custodian shall be a party, or any corporation or association to which the Custodian transfers all or substantially all of its corporate trust business, shall be the successor of the Custodian hereunder, and shall succeed to all of the rights, powers and duties of the Custodian hereunder, without the execution or filing of any paper or any further act on the part of any of the parties hereto. 20 SEVERABILITY The terms of this Agreement are hereby declared to be severable, such that if any term hereof is determined to be invalid or unenforceable, such determination shall not affect the remaining terms. 21 U.S.A. PATRIOT ACT 21.1 In order to comply with laws, rules, regulations and executive orders from time to time applicable to banking institutions, including those relating to the funding of terrorist activities and money laundering (“Applicable Law”), the Custodian is required to obtain, verify and record certain information relating to individuals and entities which maintain a business relationship with the Custodian. Accordingly, each of the parties hereto agrees to provide the Custodian upon its request from time to time such identifying information and documentation as may be available for such party in order to enable the Custodian to comply with Applicable Law. 21.2 IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT. To help the government fight the funding of terrorism and money laundering activities, Federal law requires all financial institutions to obtain, verify and record information that identifies each person who opens an account. For a non-individual person such as a business entity, a charity, a trust or other legal entity the Custodian will ask for documentation to verify its formation and existence as a legal entity. Custodian may also ask to see financial statements, licenses, identification and authorization documents from individuals claiming authority to represent the entity or other relevant documentation. 22 REQUEST FOR INSTRUCTIONS If, in performing its duties under this Agreement, the Custodian is required to decide between alternative courses of action, the Custodian may (but shall not be obliged to) request written instructions from the Company as to the course of action desired by it. If the Custodian does not receive such instructions within two (2) Business Days after it has requested them, the Custodian may, but shall be under no duty to, take or refrain from taking any such courses of action. The Custodian shall act in accordance with instructions received from the Company in response to such {00120371; v1} - 35 - 49298698.4 request after such two (2) Business Day period except to the extent it has already taken, or committed itself to take, action inconsistent with such instructions. 23 OTHER BUSINESS Nothing herein shall prevent the Custodian or any of its Affiliates from engaging in other business, or from entering into any other transaction or financial or other relationship with, or receiving fees from or from rendering services of any kind to the Company or any other Person. Nothing contained in this Agreement shall constitute the Company and/or the Custodian (and/or any other Person) as members of any partnership, joint venture, association, syndicate, unincorporated business or similar assignment as a result of or by virtue of the engagement or relationship established by this Agreement. 24 REPRODUCTION OF DOCUMENTS This Agreement and all schedules, exhibits, attachments and amendments hereto may be reproduced by any photographic, photostatic, microfilm, micro-card, miniature photographic or other similar process. The parties hereto each agree that any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding, whether or not the original is in existence and whether or not such reproduction was made by a party in the regular course of business, and that any enlargement, facsimile or further production shall likewise be admissible in evidence. [PAGE INTENTIONALLY ENDS HERE. 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