Contract
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NEW MOUNTAIN GUARDIAN IV UNLEVERED BDC, L.L.C. AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT Dated as of May 23, 2023 THE UNITS OF LIMITED LIABILITY COMPANY INTERESTS (βUNITSβ) OF NEW MOUNTAIN GUARDIAN IV UNLEVERED BDC, L.L.C. HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE βSECURITIES ACTβ), THE SECURITIES LAWS OF ANY STATE OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. UNITS MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH THE SECURITIES ACT, ANY APPLICABLE U.S. STATE SECURITIES LAWS AND ANY OTHER APPLICABLE SECURITIES LAWS AND THE TERMS AND CONDITIONS OF THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT. THE UNITS MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS AND THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT. THEREFORE, PURCHASERS OF UNITS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. i Table of Contents Page Article I GENERAL PROVISIONS 1.1 Definitions .......................................................................................................................... 1 1.2 Name and Office ............................................................................................................... 10 1.3 Purposes; Powers .............................................................................................................. 10 1.4 Term .................................................................................................................................. 10 1.5 Fiscal Year ........................................................................................................................ 11 1.6 Admission of New Members; Commitments.................................................................... 11 1.7 Expenses ........................................................................................................................... 11 1.8 Size of the Fund ................................................................................................................ 12 1.9 Status of the Fund ............................................................................................................. 12 Article II BOARD OF DIRECTORS 2.1 Management ...................................................................................................................... 12 2.2 Number of Directors and Xxxxxx of Acting ..................................................................... 13 2.3 Newly Created Directorships and Vacancies .................................................................... 13 2.4 Removal of Directors ........................................................................................................ 13 2.5 Meetings of the Board ....................................................................................................... 13 2.6 Committees ....................................................................................................................... 14 2.7 Officers ............................................................................................................................. 14 2.8 Executive Advisory Council ............................................................................................. 14 Article III THE MEMBERS 3.1 No Participation in Management, etc. ............................................................................... 15 3.2 Limitation of Liability....................................................................................................... 15 3.3 No Priority ........................................................................................................................ 15 3.4 Meetings of Members ....................................................................................................... 15 3.5 Quorum ............................................................................................................................. 15 3.6 Member Voting and Consents .......................................................................................... 16 3.7 Bankruptcy, Dissolution or Withdrawal of a Member ...................................................... 16 3.8 Advisory Committee ......................................................................................................... 16 Article IV INVESTMENTS; INDEBTEDNESS 4.1 Investments in Portfolio Companies ................................................................................. 17 4.2 Fund Indebtedness; Borrowings ....................................................................................... 18 ii Article V CLOSINGS, CAPITAL COMMITMENTS AND DRAWDOWNS 5.1 Closings ............................................................................................................................ 19 5.2 Capital Commitments ....................................................................................................... 19 5.3 Drawdowns ....................................................................................................................... 20 5.4 Excluded Investors ............................................................................................................ 21 5.5 Defaulting Investors .......................................................................................................... 20 5.6 Key Person Suspension or Early Termination of Investment Period ................................ 22 5.7 Successor Funds ................................................................................................................ 21 Article VI UNITS; DISTRIBUTIONS 6.1 Units .................................................................................................................................. 24 6.2 Distributions ...................................................................................................................... 24 6.3 Withholding Taxes ............................................................................................................ 24 Article VII THE ADVISER 7.1 Appointment of the Adviser.............................................................................................. 24 Article VIII ADMINISTRATION; BOOKS AND RECORDS; REPORTS; ETC. 8.1 Administrator .................................................................................................................... 25 8.2 Maintenance of Books and Records.................................................................................. 25 8.3 Reports .............................................................................................................................. 25 8.4 Closing Documents ........................................................................................................... 25 8.5 Tax Documents ................................................................................................................. 25 8.6 Valuation ........................................................................................................................... 25 Article IX INDEMNIFICATION 9.1 Limitation of Liability....................................................................................................... 25 9.2 Indemnification ................................................................................................................. 26 9.3 Expenses ........................................................................................................................... 26 9.4 Indemnification Not Exclusive ......................................................................................... 26 9.5 Insurance ........................................................................................................................... 26 iii Article X TRANSFERS; REDEMPTIONS 10.1 Transfers by Common Unitholders ................................................................................... 26 10.2 Redemptions ..................................................................................................................... 27 10.3 Redemptions by the Fund; Withdrawals ........................................................................... 27 Article XI DISSOLUTION AND TERMINATION OF THE FUND 11.1 Dissolution Events ............................................................................................................ 28 11.2 Winding Up ....................................................................................................................... 28 11.3 Time for Liquidation, etc. ................................................................................................. 29 11.4 Cancellation ...................................................................................................................... 29 11.5 Liability ............................................................................................................................. 29 Article XII AMENDMENTS; VOTING; POWER OF ATTORNEY 12.1 Amendments By Consent ................................................................................................. 29 12.2 Amendments Without Consent ......................................................................................... 29 12.3 Consent to Amend Special Provisions .............................................................................. 30 12.4 Power of Attorney ............................................................................................................. 30 Article XIII MISCELLANEOUS 13.1 Notices .............................................................................................................................. 32 13.2 Counterparts ...................................................................................................................... 32 13.3 Table of Contents and Headings ....................................................................................... 32 13.4 Successors and Assigns..................................................................................................... 32 13.5 Severability ....................................................................................................................... 32 13.6 Further Actions ................................................................................................................. 33 13.7 Interpretation ..................................................................................................................... 33 13.8 Non-Waiver ...................................................................................................................... 33 13.9 Applicable Law ................................................................................................................. 33 13.10 Confidentiality .................................................................................................................. 34 13.11 Survival of Certain Provisions .......................................................................................... 36 13.12 Waiver of Partition ............................................................................................................ 36 13.13 Entire Agreement .............................................................................................................. 36 13.14 Fund Counsel .................................................................................................................... 36 13.15 Compliance with Anti-Money Laundering Requirements ................................................ 37 13.16 ERISA Members ............................................................................................................... 37 13.17 Tax Cooperationβ¦β¦β¦β¦β¦β¦β¦β¦...β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦..35 13.18 Initial Memberβ¦β¦β¦β¦β¦β¦β¦β¦...β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦β¦.....35
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1 NEW MOUNTAIN GUARDIAN IV UNLEVERED BDC, L.L.C. THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT of NEW MOUNTAIN GUARDIAN IV UNLEVERED BDC, L.L.C., a Delaware limited liability company (the βFundβ), is made and entered into as of May 23, 2023, by and among the Persons listed in the books and records of the Fund as Members of the Fund and by the Adviser (as defined herein). This Agreement amends and restates in its entirety the Limited Liability Company Agreement of the Fund, dated as of November 4, 2022 (the βOriginal Agreementβ). Capitalized terms used herein without definition have the meanings specified in Section 1.1. R E C I T A L S: WHEREAS, the Fund was formed under the Delaware Limited Liability Company Act (6 Del. C. Β§18-101, et seq.) (as amended from time to time, the βDelaware Actβ) pursuant to a Certificate of Formation filed with the Secretary of State of the State of Delaware on November 4, 2022 and from its formation was governed by the Original Agreement; and WHEREAS, the Members of the Fund wish to amend and restate the Original Agreement in its entirety and enter into this Agreement. NOW, THEREFORE, the parties hereto hereby agree to continue the Fund and hereby amend and restate the Original Agreement, which is replaced and superseded in its entirety by this Agreement, as follows: ARTICLE I GENERAL PROVISIONS 1.1 Definitions. As used herein the following terms have the meanings set forth below: βAdditional Closingβ shall have the meaning set forth in Section 5.1. βAdditional Investorβ shall have the meaning set forth in Section 5.1. βAdministration Agreementβ shall have the meaning set forth in Section 8.1. βAdministratorβ shall mean New Mountain Finance Administration, L.L.C., a Delaware limited liability company, and any successor thereto. βAdverse Consequenceβ shall mean (a) a violation of a statute, rule, regulation or governmental administrative policy applicable to a Member of a U.S. federal or state or non-U.S. governmental authority that is reasonably likely to have a material adverse effect on a Portfolio Company or any Affiliate thereof or on the Fund, the Adviser or any of their respective Affiliates or on any Member or any Affiliate of any such Member or (b) an occurrence that is reasonably likely to subject a Portfolio Company, the Fund, the Adviser any Member or any of their respective Affiliates to any material regulatory requirement or burdensome filing requirement to which it would not otherwise be subject, or that is reasonably likely to materially increase any such regulatory requirement beyond what it would otherwise have been. 2 βAdviserβ shall mean New Mountain Finance Advisers BDC, L.L.C., a Delaware limited liability company, and any successor thereto. βAdviser Expensesβ shall mean the costs and expenses of the Adviserβs normal operating overhead, including salaries of the Adviserβs employees and Senior Advisors (excluding salary, benefits, directorsβ fees, stock options and other compensation received by Senior Advisors for serving in Portfolio Company Roles) and other expenses incurred in maintaining the Adviserβs place of business, but not including other Organizational and Offering Expenses or Fund Expenses; provided that, for the avoidance of doubt, Adviser Expenses shall not include any amounts paid to New Mountain or its Affiliates for administrative services pursuant to the final sentence of the first paragraph of Section 1.7; provided further that, the Adviser will undertake to reduce and/or waive its management fee, or otherwise reimburse expenses to the Fund, in the amount of Excess Organizational and Offering Expenses and Excess Specified Expenses pursuant to the last paragraph of Section 1.7. βAdvisers Actβ shall mean the U.S. Investment Advisers Act of 1940, as amended from time to time. βAdvisory Committeeβ shall have the meaning set forth in Section 3.8(a). βAffiliateβ shall mean, with respect to any specified Person, (a) a Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, the Person specified, (b) a Person with respect to which such Person acts as a discretionary investment adviser and (c) any relative or spouse of such Person who has the same home as such Person; provided that Portfolio Companies shall be deemed not to be βAffiliatesβ of the Adviser or the Fund; and provided, further, that each of the Key Persons shall be deemed to be an βAffiliateβ of the Adviser for so long as such Key Person is an employee of the Adviser or any of its Affiliates. βAggregate Committed Capitalβ shall mean the aggregate Capital Commitments (whether funded or unfunded) of all Common Unitholders. βAgreementβ shall mean this Amended and Restated Limited Liability Company Agreement, as amended, supplemented or restated from time to time. βAIFM Directiveβ shall mean Directive 2011/61/EU of the European Parliament and of the European Council of 8 June 2011 on Alternative Investment Fund Managers and amending Directives 2003/41/EC and 2009/65/EC and Regulations (EC) No 1060/2009 and (EU) No 1095/2010. βAlternative Key Person Eventβ shall have the meaning set forth in Section 5.6. βBoardβ or βBoard of Directorsβ shall mean the Fundβs board of directors. Each director is hereby designated as a βmanagerβ of the Fund within the meaning of Section 18-101(12) of the Delaware Act. βBroken Deal Expensesβ shall have the meaning set forth in the definition of βFund Expenses.β βBusiness Dayβ shall mean any day other than (a) Saturday and Sunday and (b) any other day on which banks located in New York City are required or authorized by law to remain closed. 3 βCapital Commitmentβ shall mean, with respect to any Common Unitholder, the amount of capital committed to purchase Common Units as set forth as such in such Common Unitholderβs accepted Subscription Agreement and reflected in the books and records of the Fund, as amended from time to time pursuant to this Agreement. βClosingβ shall mean the Initial Closing Date and any date as of which the Adviser shall admit one or more further Common Unitholders to the Fund pursuant to this Agreement and one or more Subscription Agreements. βClosing Periodβ shall mean the period starting with the Initial Closing Date and ending eighteen (18) months thereafter. With consent of the Adviser, the Closing Period may be extended to a later date. βCodeβ shall mean the Internal Revenue Code of 1986, as amended from time to time. βCommon Unitholderβ shall mean any Person who holds Common Units and/or a Capital Commitment to purchase Common Units, each in its capacity as a member of the Fund. βCommon Unitsβ shall mean common units of limited liability company interests in the Fund. βConfidential Informationβ shall have the meaning set forth in Section 13.10(a). βCovered Personβ shall mean any person who has served as a director, officer or employee of the Fund, the Adviser, each Key Person, and each of their respective Affiliates; each of the current and former shareholders, officers, directors, employees, partners, members, managers and Senior Advisors of any of the Adviser and each of its Affiliates and any other person who serves at the request of the Board or on behalf of the Fund as a shareholder, officer, director, employee, partner, member, manager or senior advisor of any other entity; each Person serving, or who has served, as a member of the Executive Advisory Council or the Advisory Committee (and, with respect to claims or damages arising out of or relating to service on the Advisory Committee only, the Member that such Person represents and each of such Memberβs shareholders, officers, directors, employees, partners, members and managers). βDefaulting Investorβ shall have the meaning set forth in Section 5.5. βDelaware Actβ shall have the meaning set forth in the preamble hereto. βDisabling Conductβ shall have the meaning set forth in Section 9.1. βDOLβ shall mean the U.S. Department of Labor, or any governmental agency that succeeds to the powers and functions thereof. βDOL Regulationsβ shall mean the regulations of the DOL included within 29 C.F.R. Section 2510.3-101, modified by Section 3(42) of ERISA, as the same may be amended from time to time. βDrawdown Dateβ shall have the meaning set forth in Section 5.3(a). βDrawdown Noticeβ shall have the meaning set forth in Section 5.3(a). 4 βDrawdown Purchase Priceβ shall have the meaning set forth in Section 5.2. βDrawdown Purchasesβ shall mean the capital contributions made to the Fund to purchase Common Units pursuant to Section 5.2 from time to time by the Common Unitholders pursuant to a Drawdown Notice. βDrawdown Unit Amountβ shall have the meaning set forth in Section 5.2. βElectronic Signatureβ shall have the meaning set forth in Section 13.2. βERISAβ shall mean the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time. βEvent of Dissolutionβ shall have the meaning set forth in Section 11.1. βExcess Organizational and Offering Expensesβ shall mean the amount of Organizational and Offering Expenses (other than Placement Fees, except any fees and expenses and any interest on deferred fees charged by any locally licensed intermediary or distributor that the Fund, the Adviser or an Affiliate thereof is required to engage in order to offer Units in particular jurisdictions) in excess of, at the end of the Closing Period, the lesser of: (i) $2.0 million or (ii) 0.25% of the Aggregate Committed Capital. βExcess Specified Expensesβ shall mean the amount of Specified Expenses payable by the Fund for any calendar year in excess of the Specified Expenses Cap (giving effect to the adjustment in the last sentence of the definition of Specified Expenses Cap in the calendar year in which the Closing Period ends). βExchange Actβ shall mean the U.S. Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. βExcluded Investorβ shall have the meaning set forth in Section 5.4. βExecutive Advisory Councilβ shall have the meaning set forth in Section 2.8(a). βFATCAβ shall mean Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code, any intergovernmental agreements, treaties or conventions entered into in connection with the implementation of such Sections, and any laws, rules, guidance notes and practices adopted by a non-U.S. jurisdiction to effect any such intergovernmental agreement or any similar provisions of non-U.S. law (including, for the avoidance of doubt, any law that implements any such agreement or that implements the Organization for Economic Co-operation and Developmentβs Common Reporting Standard). βFiscal Yearβ shall mean the fiscal year of the Fund, as determined pursuant to Section 1.5. βFollow-On Investmentβ shall mean an investment (other than a Follow-Up Investment) by the Fund in a Portfolio Company or a Person whose business is related or complementary to that of (and will be under common management with) a Portfolio Company in which the Adviser determines that it is appropriate or necessary for the Fund to invest for the purpose of preserving, protecting or enhancing the Fundβs prior investment in such Portfolio Company.
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5 βFollow-Up Investmentβ shall mean any Portfolio Investment in which on or prior to the end of the Investment Period the Fund (or the Adviser or one of its Affiliates, on behalf of the Fund) or any acquisition vehicle thereof has delivered an indication of interest letter, entered into a letter of intent (which may or may not be binding), written agreement in principle, definitive agreement to invest or has otherwise committed in writing thereto and any Portfolio Investment that the Fund (or the Adviser or one of its Affiliates, on behalf of the Fund) has committed to make pursuant to the terms of Portfolio Investments held by the Fund prior to the end of the Investment Period. βFundβ shall have the meaning set forth in the preamble hereto. βFund Counselβ shall have the meaning set forth in Section 13.14. βFund Expensesβ shall mean all costs, expenses and liabilities that in the good faith judgment of the Adviser are incurred by or arise out of the operation and activities of the Fund, including, without limitation: (a) the management fee and incentive fees payable under the Investment Management Agreement and the Fundβs allocable portion of compensation, overhead (including office equipment and utilities) and other expenses incurred by the Administrator in performing its administrative obligations under the Administration Agreement; (b) out-of-pocket fees and expenses relating to consummated Portfolio Investments, proposed but unconsummated Portfolio Investments (such fees and expenses, βBroken Deal Expensesβ), including (i) the sourcing, bidding, financing, evaluating, making deposits on, purchasing, trading, syndication of co-investments, settling, maintaining custody, holding, monitoring, acquisition, disposition and sale of thereof, (ii) origination fees, syndication fees, research costs, due diligence costs, bank service fees, (iii) fees and expenses related to the organization or maintenance of any intermediate entity used to acquire, hold or dispose of any Portfolio Investment or otherwise facilitating the Fundβs investment activities including without limitation any overhead expenses related to such entity, (iv) travel, meal and lodging expenses incurred in connection with the preliminary evaluation of potential investment opportunities and (v) travel, meal, lodging and other ordinary course of business expenses of monitoring of Portfolio Investments; (c) an amount equal to 100% of all premiums for insurance protecting the Fund and any Covered Persons from liabilities to third persons in connection with Fund affairs to the extent such premiums cover liabilities with respect to actions or omissions of the Fund or of any Covered Person that would otherwise be subject to indemnification by the Fund pursuant to the terms of this Agreement, the Investment Management Agreement or the Administration Agreement and for any fidelity bonds; (d) out-of-pocket legal, custodial, Portfolio Company-related and Fund investment-related public relations, and accounting expenses of third-party service providers, including fees, costs and expenses associated with the preparation of amendments to this Agreement and the solicitation of consent to such amendments, the preparation, printing and distribution of the Fundβs financial statements, tax information and any Fund-Related Compliance Obligation Expenses (it being understood that, where such Fund- Related Compliance Obligation Expenses relate to the Fund and other clients of New Mountain, such costs and expenses shall mean the Fundβs allocable share thereof as determined in good faith by the Adviser), and out-of-pocket expenses related to data rooms, investor portals, board reporting portals or other websites and accounting systems; (e) interest on and fees and expenses arising out of all Fund Indebtedness, including, but not limited to, the arranging thereof and the costs and expenses of any lenders, investment banks and other financing sources; (f) out-of-pocket auditing, accounting, appraisal, banking, brokerage commissions, consulting, operating and valuation expenses of third-party service providers (including compliance, accounting and technology, environmental, social and governance consultants); (g) out-of-pocket appraisal expenses of third- party service providers; (h) out-of-pocket fees, costs and expenses of any third-party administrators and deal finders, experts, advisers, consultants, engineers and other professionals and service providers; (i) expenses of the Advisory Committee (including the reasonable costs of legal counsel, 6 accountants, financial advisors and/or such other advisors and consultants engaged by the Advisory Committee, if the Board agrees to permit such engagement); (j) extraordinary costs and expenses (including, but not limited to, indemnification and contribution expenses); (k) subject to Section 6.3, taxes and other governmental charges, fees and duties payable by the Fund, and costs and expenses associated with third party tax advisors, tax return preparation or tax audits; (l) costs of any litigation and damages (including the costs of any indemnity or contribution right granted to any placement agent or third-party finder for Units engaged by the Fund or its Affiliates); (m) the costs and expenses associated with preparing, filing and delivering to Members periodic and other reports and filings required under federal securities laws as a result of the Fundβs status as a business development company; (n) costs of any meeting of Members (including proxy statements and solicitation in connection therewith); (o) costs associated with any third-party examinations or audits (including other similar services) of the Fund or the Adviser that are attributable to the operation of the Fund or requested by Members; (p) costs of winding up, liquidating, dissolving and terminating the Fund; (q) expenses incurred in connection with complying with this Agreement and provisions in side letter agreements entered into with Members, including βmost favored nationsβ provisions, as well as any costs and expenses incurred in connection with any Transfer of Units (to the extent not reimbursed by the parties to such transfer); but not including Adviser Expenses; (r) cost of software (including the fees, costs, and expenses of third-party software developers and software utilized in connection with the Fundβs investment, operational, legal, compliance, tax, treasury and accounting activities and related expenses, including as related to risk, research and market data, operations, accounting, treasury and the tracking and monitoring of investments (e.g., portfolio management software, general ledger software, environmental, social and governance monitoring software, subscription management software and automation tools (e.g., bots and RPA)) used by the Adviser and its Affiliates; (s) risk, research and market data related expenses (including software and hardware); (t) expenses related to the engagement of and ongoing obligations of the Fundβs transfer agent, including any annual fees and fees related to maintaining Member records, among others; (u) expenses related to the engagement of any rating agency (i.e., Moodys, Fitch, S&P, Kroll, etc.) and any fees and expenses associated with the ongoing responsibilities related to maintaining any rating from such agency; (v) expenses of the Board (including independent director fees, the reasonable costs of legal counsel, accountants, financial advisors and/or such other advisors and consultants engaged by the Board, as well as travel and out-of-pocket expenses related to the attendance by directors at Board meetings); (w) expenses related to the valuation or appraisal of the Fundβs Portfolio Investments and the calculation of the Fundβs net asset value; (x) travel, out-of-pocket and meal expenses related to the attendance of any employee of the Adviser who acts as a board member or board observer (or similar function) and (y) the Organizational and Offering Expenses (subject to the Adviserβs obligation in Section 1.7 to waive and/or reduce its management fee, or otherwise reimburse expenses to the Fund, in the amount of Excess Organizational and Offering Expenses). βFund Indebtednessβ shall mean any borrowings of, guarantees by, repurchase arrangements or other credit or leverage obligations of the Fund. βFund Informationβ shall have the meaning set forth in Section 13.10(b). βFund-Related Compliance Obligation Expensesβ shall mean the costs and expenses of all legal and regulatory compliance obligations under U.S. federal (including the Investment Company Act), state, local, non-U.S. or other laws and regulations directly related to managing the Fund or the making, holding or disposing of Portfolio Investments by the Fund (whether such compliance obligations are imposed on the Adviser, its Affiliates or the Fund), including, without limitation, the preparation and filing of (a) Form PF and Form ADV under the Advisers Act, (b) Form 13F, Form 13H, Section 16 filings, Schedule 13D filings, Schedule 13G filings and other beneficial 7 ownership filings, in each case under the Exchange Act, (c) TIC Form SLT filings, (d) materials required under FATCA and FinCEN reporting requirements applicable to the Fund, (e) CFTC Form 4.13(a)(3), CPO-PQR, CTA PR and NFA Form PQR filings, (f) any fees and expenses associated with hiring and maintaining a local distribution agent or administrative agent in any non-U.S. jurisdictions and (g) any other forms, schedules or other filings with governmental and self- regulatory agencies directly related to the making, holding or disposing of Portfolio Investments by the Fund (including blue sky filings and registration statement filings, as applicable), and the costs and expenses of any administrator, custodian and/or depositary (including, for the avoidance of doubt, the performance of any functions of a custodian, administrator and/or depositary contemplated by the AIFM Directive) appointed by the Adviser and its Affiliates in relation to the safeguarding, administering and/or holding (or similar) of Portfolio Investments and/or registrations, licenses, notices, reports and/or filings prepared in connection with the laws and/or regulations of jurisdictions in which the Fund engages in activities, including any registrations, licenses, notices, reports and/or filings required in accordance with the AIFM Directive and any related regulations, and other notices or disclosures of the Adviser and/or its Affiliates relating to the Fund and their activities or any national private placement regime in any jurisdiction and incurred in connection with the Adviserβs or any of its Affiliatesβ initial registration and compliance with ongoing registration (including annual, quarterly or similar fees), disclosure, reporting and other similar obligations or under the AIFM Directive or any national private placement regime in any jurisdiction (including, for the avoidance of doubt, the preparation and filing of any reporting required in connection with, or prescribed by, the AIFM Directive), including the preparation of prescribed information included in the Fundβs annual report, and the capture, processing and submission of relevant data in the form of Xxxxx XX reports) and costs and expenses in relation to the appointment of third-party alternative investment fund managers in respect of the Fund, as well as costs and expenses associated with operating foreign domiciled entities formed in connection with the Fundβs activities. βIndependent Directorsβ shall have the meaning set forth in Section 2.2. βInitial Closing Dateβ shall mean the date on which Capital Commitments are first accepted by the Fund. βInitial Drawdown Dateβ shall mean the date of the initial Drawdown Purchase from Common Unitholders. βInvestment Company Actβ shall mean the U.S. Investment Company Act of 1940, as amended from time to time, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. βInvestment Management Agreementβ shall have the meaning set forth in Section 7.1. βInvestment Objectivesβ shall have the meaning set forth in Section 4.1(a). βInvestment Periodβ shall mean the period commencing at the Initial Closing Date and ending on the earliest to occur of (a) the fourth anniversary of the end of the Closing Period and (b) the date of any early termination of the Investment Period pursuant to Section 5.6. βInvestor Requestsβ shall mean requests received by the Adviser and its Affiliates from Unitholders (or their consultants or advisors) with respect to legal, tax, accounting, reporting, administrative and similar matters, including, without limitation, requests relating to the terms of this Agreement, side letters or documentation related to Portfolio Investments, data room access, 8 fees and expenses, performance metrics, capital call and distribution projections, cash flows, updates on Portfolio Companies and properties (and the performance thereof), quarterly Fund reporting, quarterly investor certifications, valuations, capital call and distribution notices, wire instructions, withholding taxes, tax refunds, quarterly tax estimates, taxable income and tax structuring with respect to the Fund and its Portfolio Companies. βKey Personβ shall have the meaning set forth in Section 5.6. βKey Person Eventβ shall have the meaning set forth in Section 5.6. βKey Person Suspension Periodβ shall have the meaning set forth in Section 5.6. βLegal Requirementsβ shall have the meaning set forth in Section 13.10(a). βLimited Exclusion Rightβ shall have the meaning set forth in Section 5.4. βManagement Company Related Investorβ shall mean the Adviser, its Affiliates and their respective families and friends (including any investment vehicles wholly-owned by, or established for the benefit of, members of the Adviserβs investment team and their respective families and friends), collectively. βMembersβ shall mean, collectively, the Common Unitholders, holders of any other class of Units or any other member of the Fund, in their capacity as such. βMember Recipientsβ shall have the meaning set forth in Section 13.10(a). βNew Mountainβ shall mean the Adviser and its Affiliates. βOrganizational and Offering Expensesβ shall mean all legal and other expenses incurred in connection with the Fundβs formation and organization and the offering of the Common Units, including (other than any Placement Fees, which will be borne by the Adviser directly or pursuant to waivers of the management fee, except any fees and expenses and any interest on deferred fees charged by any locally licensed intermediary or distributor that the Fund, the Adviser or an Affiliate thereof is required to engage in order to offer Units in particular jurisdictions) all out-of-pocket legal, tax, accounting, printing, data room, consultation, administrative, travel, entertainment, meal, accommodation, marketing material preparation expenses (including third-party marketing material compliance reviews), costs and expenses of online subscription documents, and U.S. and non-U.S. filing fees and expenses of the Fund or the Adviser (including with respect to any registration or licensing of the Fund or the Adviser for marketing under any national passport, private placement or similar regime outside of the United States including those in member states of the European Union), and payments to any Required Agent. βOriginal Agreementβ shall have the meaning set forth in the preamble hereto. βPer Unit NAVβ shall have the meaning set forth in Section 5.2. βPer Unit Priceβ shall have the meaning set forth in Section 5.2. βPersonβ shall mean any individual or entity, including a corporation, partnership, association, limited liability company, limited liability partnership, joint-stock company, trust, unincorporated association, government or governmental agency or authority.
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9 βPlacement Feesβ shall mean the fees and expenses and any interest on deferred fees charged by any placement agent designated by the Adviser or the Fund for the marketing and sale of interests in the Fund. For the avoidance of doubt, Placement Fees shall not include any payment to a Required Agent. βPlan Asset Regulationsβ shall mean the regulations issued by the Department of Labor at Section 2510.3-101 of Part 2510 of Chapter XXV, Title 29 of the Code of Federal Regulations, as modified by Section 3(42) of ERISA, as amended from time to time. βPortfolio Companyβ shall mean an entity in which a Portfolio Investment is made by the Fund. βPortfolio Company Rolesβ shall mean serving on Portfolio Company boards of directors, serving in executive management roles at Portfolio Companies or performing the functional equivalent of such roles. βPortfolio Investmentsβ shall mean debt or equity investments made by the Fund. βQualified Replacementβ shall have the meaning set forth in Section 5.6. βRemaining Capital Commitmentβ shall have the meaning set forth in Section 5.2. βRequired Agentβ shall mean any locally licensed intermediary or distributor required to market the Fund in particular jurisdictions. βRequired Involvementβ shall have the meaning set forth in Section 5.6. βSecurities Actβ shall mean the U.S. Securities Act of 1933, as amended from time to time, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder. βSenior Advisorβ shall mean any employee or non-employee senior advisor of the Adviser or its Affiliates, in each case only for so long as such Person is employed or engaged by the Adviser or its Affiliates. βSimilar Lawβ shall mean any U.S. or non-U.S. federal, state, local, or other law or regulation that is similar to the fiduciary responsibility or prohibited transaction provisions contained in Title I of ERISA or Section 4975 of the Code. βSpecified Expensesβ means all Fund Expenses incurred in the operation of the Fund with the exception of: (i) the management fee, (ii) any incentive fees, (iii) Organizational and Offering Expenses, (iv) placement fees, (v) interest on and fees and expenses arising out of all Fund Indebtedness and other financing, (vi) costs of any litigation and damages (including the costs of any indemnity or contribution right granted to any placement agent or third-party finder engaged by the Fund or its Affiliates) and (vii) for the avoidance of doubt, if applicable, any investor level withholding or other taxes. βSpecified Expenses Capβ shall mean an amount of Specified Expenses for any calendar year equal to (prorated for partial years and portions of years for which each applicable prong of the cap applies): (1) during the Closing Period, 0.40% of the greater of (A) $500 million and (B) actual Aggregate Committed Capital as of the end of such calendar year, (2) at the end of the Closing Period until the end of the Investment Period, 0.40% of aggregate Capital Commitments 10 and (3) after the end of the Investment Period, 0.40% of NAV. Further, if the actual Aggregate Committed Capital of the Fund at the end of the Closing Period is less than $500 million, the prong of the Specified Expenses Cap in clause (1) above will be retroactively adjusted to equal 0.40% of Aggregate Committed Capital at the end of the Closing Period. βSponsorβ shall have the meaning set forth in Section 5.2. βSponsor Commitmentβ shall have the meaning set forth in Section 5.2. βSubscription Agreementsβ shall mean the Subscription Agreements entered into by the Common Unitholders in connection with their purchases of Common Units of the Fund. βSuccessor Fundβ shall mean a closed-ended commingled investment vehicle organized by the Adviser or its Affiliates with investment criteria (including a return profile, security focus and leverage terms), objectives and focus substantially similar to those of the Fund. Successor Funds shall not include: (i) existing funds, accounts or portfolios of investments owned, sponsored or managed by the Adviser or its Affiliates, (ii) new or existing business development companies and Affiliates thereof, (iii) new or existing managed accounts or funds of one (including managed accounts or funds of one that are also BDCs), (iv) new or existing funds focused on investing in or issuing collateralized loan obligations and similar securities, or (v) new funds or accounts through which the Adviser or its Affiliates may make investments that are prohibited under Section 4.1(a). βTermβ shall have the meaning set forth in Section 1.4. βTransferβ shall have the meaning set forth in Section 10.1. βUnitsβ shall mean Common Units and any other class of units of limited liability company interests in the Fund. 1.2 Name and Office. (a) Name. The name of the Fund is New Mountain Guardian IV Unlevered BDC, L.L.C. (b) Office. The Fund shall have its principal place of business at c/o New Mountain Finance Advisers BDC, L.L.C., 0000 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other place as the Fund may determine from time to time. The registered office of the Fund in the State of Delaware is located at c/o The Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and the registered agent for service of process on the Fund at such address is The Corporation Trust Company. At any time, the Fund may designate another registered agent and/or registered office. 1.3 Purposes; Powers. The Fund may engage in any lawful act or activity for which limited liability companies may be formed under the laws of the State of Delaware and shall have all the powers available to it as a limited liability company formed under the laws of the State of Delaware. 1.4 Term. The term of the Fund is six years from the end of the Closing Period, subject to, unless the Fund is sooner dissolved, (i) a one-year extension as determined by the Adviser in its sole discretion and (ii) an additional one-year extension as determined by the Board (the six year period and any successive extensions, the βTermβ). The Fund will be dissolved and its affairs wound up in an orderly manner upon the first to occur of the following: (i) the expiration of its Term (as such Term may be extended pursuant to the above), (ii) at any time upon a decision of the Board, subject to any necessary Unitholder 11 approvals and applicable requirements of the Investment Company Act or (iii) as otherwise provided in Section 11.1. Notwithstanding the dissolution of the Fund, the Fund shall continue in existence as a separate legal entity until cancellation of the Certificate of Formation of the Fund in accordance with Section 11.4. Prior to the end of the Term, the Fund may give a Common Unitholder the opportunity to elect (with no obligation) to exchange their Common Units for interests in another investment vehicle managed by the Adviser or its Affiliates. Any such exchange would be required to be structured in a manner so as not cause dilution to Common Unitholders who do not elect to exchange their Common Units and to comply with applicable law, including the Investment Company Act. The Fund will give Common Unitholders sufficient information and a reasonable amount of time to make an informed decision about any potential exchange option. There is no requirement for the Fund to provide such opportunity to exchange Common Units. Any Common Units so exchanged shall, upon consummation of such exchange, be cancelled. The Fund will not list its securities on a public exchange. 1.5 Fiscal Year. The Fiscal Year of the Fund shall end on the 31st day of December in each year. The taxable year of the Fund shall be the calendar year or such other taxable year as is required under the Code. 1.6 Admission of New Members; Commitments. Each Person acquiring Common Units will enter into a Subscription Agreement pursuant to which such Person will agree to purchase Common Units for an aggregate purchase price equal to its aggregate Capital Commitment, subject to the Limited Exclusion Right. Each such Person shall be admitted as a member of the Fund at the time that such Subscription Agreement or a counterpart thereof is executed by or on behalf of such Person and accepted by the Fund. 1.7 Expenses. All Fund Expenses shall be paid by the Fund. To the extent that the Adviser or any of its Affiliates pays any Fund Expenses on behalf of the Fund, the Fund shall reimburse the Adviser or such Affiliate, as the case may be, upon request. All Adviser Expenses shall be paid by the Adviser or its Affiliates. The Adviser shall allocate any expenses that benefit the Fund and other New Mountain funds or co-investors among the Fund and the applicable Persons in a manner that the Adviser determines is fair and equitable. The Adviser shall endeavor where appropriate to cause each potential co-investor that is considering an investment alongside the Fund prior to the signing of the Fundβs Portfolio Investment to bear its proportionate share of Broken Deal Expenses related to such potential Portfolio Investment, but to the extent not reimbursed by co-investors or other parties that may have invested in an unconsummated Portfolio Investment had it been consummated, Broken Deal Expenses may be borne entirely by the Fund and no share of such expense shall be required to be allocated to any such co-investors or other party; provided that no share of any break-up fees shall be allocated to any co-investor that is not bearing Broken Deal Expenses. In addition, Broken Deal Expenses may include all or a portion of such amounts related to proposed but unconsummated Portfolio Investments that have also been considered for investment (either alone or in conjunction with the Fund) by other New Mountain vehicles or accounts and not ultimately consummated by such vehicles or accounts. There may be circumstances when the Adviser has considered a potential investment in a portfolio company on behalf of the Fund, has determined not to make such investment and an investment is eventually made in such portfolio company by other investment vehicles or accounts sponsored by New Mountain. In these circumstances, such vehicles or accounts may benefit from research by the Adviserβs investment team and/or from costs borne by the Fund related to this research or otherwise incurred in pursuing the potential portfolio investment, but may not be required to reimburse the Fund for expenses incurred in connection with such investment. Travel and related expenses described herein include, without limitation, airfare at first class and/or business class rates, lodging, ground transportation, travel and meals (including, as applicable, closing dinners and mementos, cars and meals (outside normal business hours), and social and entertainment events with Portfolio Company management, customers, clients, borrowers, brokers and service providers). Travel and related expenses in connection with a trip taken by employees of the Adviser for purposes of multiple matters will be allocated by the 12 Adviser in a manner that the Adviser determines is fair and equitable. The Adviser may cause the Fundβs Portfolio Companies to enter into agreements regarding group procurement, benefits management, insurance policies (which will from time to time be pooled across Portfolio Companies and discounted due to scale) and other operational, administrative or management related matters from a third party or a New Mountain affiliate, and shall notify the Board of any such agreements with a New Mountain affiliate no later than the next regularly scheduled meeting thereof. Fund Expenses, including certain consultant expenses, may be charged directly to the Fund or may be borne by both the Adviser and one or more Portfolio Companies. The Administrator will provide legal and tax services, administrative and accounting services (including the provision of valuation, shadow accounting, investor reporting, meeting preparation, corporate and tax structuring and related services), treasury, leveraged purchasing, IT system support, system implementation, anti-money laundering and know-your-customer services and monitoring and compliance, all other compliance services provided by the Administratorβs compliance personnel with respect to the Fund, its Portfolio Companies and their activities (including, without limitation, services related to legal and regulatory compliance obligations (e.g., reporting and filing obligations) under U.S. federal, state, local, non-U.S. or other laws and regulations related to the Fundβs activities and the making, holding or disposing of Portfolio Investments by the Fund), local and state filing services, asset management and operations, hedging, fund finance, fund borrowing and currency management and compliance, environmental, social and governance services and services related to transfers of Units, and to respond to Investor Requests, for the Fund or its Portfolio Companies (that could otherwise be performed by third parties), and will be entitled to the reimbursement of the fully allocated costs of the Administrator and its Affiliates of providing such services, including the costs of employee compensation and related taxes, health insurance and other benefits, and such employeesβ allocable portion of overhead, rent and utilities; provided that the amount paid under the Administration Agreement shall be reported in the Fundβs annual reports. Other fees, costs and expenses may be deemed Fund Expenses to the extent the Advisory Committee consents to such treatment. The Adviser shall enter into an expense limitation and reimbursement agreement whereby the Adviser agrees to reduce and/or waive the management fee it would otherwise be entitled to, or otherwise reimburse expenses to the Fund, in the amount of Excess Organizational and Offering Expenses and Excess Specified Expenses. 1.8 Size of the Fund. The Fund intends that total Capital Commitments (excluding the Capital Commitments of the Adviser or its Affiliates and any Common Unitholder who is a member of the Executive Advisory Council) shall be approximately $500 million. 1.9 Status of the Fund. The Fund intends to make an election to be classified as a corporation for U.S. federal income tax purposes (a βCorporationβ) and to be regulated as a business development company and intends to elect to be treated and is authorized to take any such action as it determines necessary to qualify annually (including investing in a Portfolio Company through a Corporation), as a regulated investment company within the meaning of Section 851 of the Code. ARTICLE II BOARD OF DIRECTORS 2.1 Management. The business and affairs of the Fund shall be managed by or under the direction of the Board of Directors. The Board of Directors may exercise all such authority and powers of the Fund and do all such lawful acts and things as are not by statute or this Agreement directed or required