Silver Capital Holdings LLC Fourth Amended and Restated Limited Liability Company Agreement Dated as of December 17, 2024

Exhibit 3.3

Execution Version

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Silver Capital Holdings LLC

Fourth Amended and Restated

Limited Liability Company Agreement

Dated as of December 17, 2024

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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TABLE OF CONTENTS

 

				Page
ARTICLE 1. — DEFINITIONS				1
1.1.		Definitions		1
ARTICLE 2. — ORGANIZATION; POWERS				1
2.1.		Formation of Limited Liability Company		1
		2.1.1.	Formation	1
		2.1.2.	Admission	1
		2.1.3.	Name	2
		2.1.4.	Address	2
2.2.		Purpose, Powers		2
2.3.		Representations and Warranties of the Company		2
ARTICLE 3. — MEMBERS, VOTING, AND CONSENTS				2
3.1.		Names, Addresses, Subscriptions and Certificates		2
		3.1.1.	Name and Addresses of Members	2
		3.1.2.	Certificates	3
3.2.		Status of Members		3
		3.2.1.	Limited Liability	3
		3.2.2.	Effect of Death, Dissolution or Bankruptcy	3
		3.2.3.	No Control of Company	3
		3.2.4.	Dual Status	4
3.3.		[Reserved.]		4
3.4.		Capital Contributions, Commitments, Admission of New Members		4
		3.4.1.	Initial Capital Contributions	4
		3.4.2.	Drawdowns	4
		3.4.3.	Additional Capital Contributions	6
		3.4.4.	Additional Interests	6
3.5.		Management and Control of Company		6
		3.5.1.	Board of Directors	6
		3.5.2.	Committees of Board of Directors	8
		3.5.3.	Management by the Board	9
		3.5.4.	Powers of Board	10
		3.5.5.	Related Party Transactions	11

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3.6.		Activities of Members		11
3.7.		Meetings of Members		12
		3.7.1.	Place of Meetings	12
		3.7.2.	Meetings	12
		3.7.3.	Business at Meetings	12
		3.7.4.	Quorum; Adjournments	12
3.8.		Waiver of Notice		12
3.9.		Member Voting and Consents		13
		3.9.1.	General	13
		3.9.2.	Member Voting Threshold	13
ARTICLE 4. — INVESTMENTS AND ACTIVITIES				13
4.1.		Investment Objectives		13
		4.1.1.	Current Investments	13
		4.1.2.	New Investments	14
4.2.		Borrowing		14
		4.2.1.	General	14
		4.2.2.	Member Acknowledgements	15
		4.2.3.	Beneficiary Rights	15
4.3.		Preferred Units		15
4.4.		Distributions, Recycling		16
		4.4.1.	Distributions	16
		4.4.2.	Returns of Capital Contributions	17
		4.4.3.	Recycling	17
ARTICLE 5. — FEES AND EXPENSES; ADVISORY AGREEMENT				17
5.1.		Company Expenses		17
5.2.		Investment Advisory Agreement		18
ARTICLE 6. — CAPITAL OF THE COMPANY				18
6.1.		Obligation to Contribute		18
		6.1.1.	General	18
		6.1.2.	No Interest	19

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6.2.		Failure To Make Required Payment		19
		6.2.1.	Default	19
ARTICLE 7. — DURATION OF THE COMPANY				20
7.1.		Term and Termination of the Company		20
ARTICLE 8. — LIQUIDATION OF ASSETS ON DISSOLUTION				20
8.1.		General		20
8.2.		Liquidation Distributions, Priority		20
8.3.		Duration of Liquidation		21
8.4.		Liability for Returns		21
8.5.		Post Dissolution Investments and Drawdowns		21
ARTICLE 9. — LIMITATIONS ON TRANSFERS OF UNITS; REQUIRED TRANSFERS				21
9.1.		Transfers of Units		21
		9.1.1.	General	21
		9.1.2.	Consent of Company	21
		9.1.3.	Required Representations by Parties	22
		9.1.4.	Other Prohibited Legal Consequences	22
		9.1.5.	Required Transfers	22
		9.1.6.	Opinion of Counsel	22
		9.1.7.	Reimbursement of Transfer Expenses	22
9.2.		Admission of Substituted Members		23
		9.2.1.	General	23
		9.2.2.	Effect of Admission	23
		9.2.3.	Non-Compliant Transfer	23
ARTICLE 10. — LIMITATION OF LIABILITY AND INDEMNIFICATION				24
10.1.		Limitation of Liability		24
10.2.		Indemnification		24
10.3.		Right to Advancement of Expenses		24
10.4.		Right to Indemnified Person to Bring Suit		24
10.5.		Indemnification Not Exclusive		25
10.6.		Company Obligations, Reliance		26
10.7.		Nature of Rights		26
10.8.		Insurance		26
10.9.		Limitation by Law		27

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ARTICLE 11. — AMENDMENTS				27
11.1.		Amendments		27
		11.1.1.	By Consent	27
		11.1.2.	Without Consent	27
		11.1.3.	Consent to Amend Special Provisions	28
ARTICLE 12. — ADMINISTRATIVE PROVISIONS				28
12.1.		Keeping of Accounts and Records; Certificate of Formation Administrator		28
		12.1.1.	Accounts and Records	28
		12.1.2.	Certificate of Conversion and Formation	28
		12.1.3.	Administrator	28
12.2.		Information Rights		29
		12.2.1.	Inspection of Books and Records	29
		12.2.2.	Financial Reports	29
		12.2.3.	Notice of Member Litigation	29
		12.2.4.	Disclosure of Confidential Information	29
12.3.		Valuation		29
12.4.		Notices		30
12.5.		Accounting Provisions		30
		12.5.1.	Fiscal Year	30
		12.5.2.	Independent Auditors	30
12.6.		Tax Provisions		30
		12.6.1.	Classification of the Company as Corporation for Tax Purposes	30
		12.6.2.	RIC Requirements	31
		12.6.3.	Tax Information	31
		12.6.4.	Information Disclosure Obligation	31
12.7.		General Provisions		31
		12.7.1.	Power of Attorney	31
		12.7.2.	Binding on Successors	32
		12.7.3.	Governing Law	32
		12.7.4.	Submission to Jurisdiction; Venue; Waiver of Jury Trial	33
		12.7.5.	Waiver of Partition	33
		12.7.6.	Securities Law Matters	33
		12.7.7.	Confidentiality	34
		12.7.8.	Compliance with Laws	38
		12.7.9.	Fixing the Record Date	38

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		12.7.10.	Notices to Members	38
		12.7.11.	Contract Construction; Headings; Counterparts	38
ARTICLE 13. — RESTRICTIONS ON CERTAIN INVESTORS				39
13.1.		ERISA Members		39

 

Appendix I		Definitions
Appendix II		Member Acknowledgments
Schedule A		Schedule of Directors
Schedule B		Schedule of Officers
Exhibit 1		Investment Advisory Agreement
Exhibit 2		Form of Drawdown Notice
Exhibit 3		Form of Notice of Distributions

 

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SILVER CAPITAL HOLDINGS LLC

Fourth Amended and Restated Limited Liability Company Agreement

This FOURTH AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Silver Capital Holdings LLC, a Delaware limited liability company (f/k/a ▇▇▇▇▇▇▇ ▇▇▇▇▇ Private Middle Market Credit LLC) (the “Company”), is entered into as of December 17, 2024, by and among (a) Pantheon Silver Holdings LLC, a Delaware limited liability company (“Pantheon” or “Pantheon Member”), and those other Persons who have entered into Subscription Agreements with the Company for the purchase of common units and are identified as Members therein and (b) each other Person who becomes a party hereto pursuant to and in accordance with the terms of this Agreement (each of the Persons described in clauses (a) and (b) of this preamble, a “Member” and, all such Persons collectively, the “Members”). This Agreement amends and restates in its entirety the Third Amended and Restated Limited Liability Company Agreement of the Company, dated as of December 16, 2021.

WHEREAS, effective as of the effective time of the merger contemplated by the Agreement and Plan of Merger, dated as of October 31, 2024 (the “Merger Agreement”), by and among the Company, Pantheon and Silver Merger Sub LLC, a Delaware limited liability company, the parties desire to enter into this Agreement to govern, among other things, their rights, duties and obligations with respect to their ownership of Units and the governance of the Company as set forth herein.

NOW, THEREFORE, in consideration of the premises and of the covenants and agreements hereinafter set forth, the Members do hereby agree as follows:

ARTICLE 1.— DEFINITIONS

Capitalized terms used herein and not otherwise defined have the meanings assigned to them in Appendix I hereto. Appendix I also indicates other sections of this Agreement in which certain other terms used in this Agreement are defined.

ARTICLE 2.— ORGANIZATION; POWERS

The Company was formed as a limited partnership on December 23, 2015 and converted to a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §18-214, et seq.) (as amended from time to time, the “Delaware Act”) pursuant to a Certificate of Conversion from a Limited Partnership to a Limited Liability Company and Certificate of Formation of the Company, which were filed with the Secretary of State of the State of Delaware on April 4, 2016 (as amended from time to time hereafter, the “Certificate”).

Each Person who is to be admitted as a Member pursuant to this Agreement shall (a) accede to this Agreement by, and shall be admitted to the Company as a Member upon, executing a Subscription

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Agreement or other written document pursuant to which such Person agrees to become a Member and be bound by this Agreement following the Company’s acceptance of such document and (b) comply with Section 3.4.4 or Section 9.2.1, as applicable, of this Agreement. The Company shall make any necessary filings with the appropriate governmental authorities and take such actions as are necessary under applicable law to effectuate such admission. Each such agreement and/or document described in this Section 2.1.2 may be executed on behalf of a Member by an authorized representative of the Company, as attorney-in-fact for such Member, with the same force and effect as if executed directly by the Member.

The name of the Company is “Silver Capital Holdings LLC”.

The Company shall maintain a registered office at c/o Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The principal place of business of the Company shall be ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or such other place as the Company may determine from time to time. The name and address of the Company’s registered agent is Corporation Trust Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.

In furtherance of the investment objectives of the Company, the Company 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 and authority available to it as a limited liability company formed under the laws of the State of Delaware to take any and all actions necessary, appropriate, proper, advisable, incidental or convenient to or for the furtherance such purpose.

The Company hereby represents and warrants to each Member that except for noncompliance or violations that have been fully remedied or would not be material, individually or in the aggregate, to the business of the Company, the Company is not in violation of any law applicable to the conduct of the business of the Company as presently conducted, including, for the avoidance of doubt, all anti- money laundering, anti-terrorism laws and anti-bribery laws, as well as applicable rules and regulations imposed by applicable securities laws.

ARTICLE 3.— MEMBERS, VOTING, AND CONSENTS

The name, address and e-mail address, the number and class of Units held and the Commitment and Undrawn Commitment of each Member are set forth in the books and records of the Company. The Company shall maintain such books and records in a manner consistent with this Agreement and shall cause such books and records to be revised to reflect (a) the admission of any additional or substituted Member occurring pursuant to, and in accordance with, the terms of this Agreement, (b) the withdrawal, or partial withdrawal, of any Member pursuant to, and in accordance with, the terms

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of this Agreement, (c) any change in the information of a Member set forth in the books and records of the Company, pursuant to, and in accordance with, the terms of this Agreement, including with respect to the identity, address or e-mail address of a Member, the number of Units owned or the Member’s Commitment occurring pursuant to the terms of this Agreement.

The Company will not issue any certificates representing a Member’s ownership interest in the Company but will, at the written request of a Member, provide a statement of the total number and class of Units owned by the requesting Member as well as the total number of Units of such class outstanding as of the date the statement is provided.

Upon the death, incompetence, bankruptcy, insolvency, liquidation or dissolution of a Member, the rights and obligations of such Member under this Agreement, to the maximum extent permitted by law, shall inure to the benefit of, and shall be binding upon, such Member’s successor(s), estate or legal representative. Each such Person shall be treated as provided in the second sentence of Section 9.2.2 unless and until such Person is admitted as a substituted Member pursuant to Section 9.2. Any Transfer of the Units so acquired by such successor, estate or legal representative shall be subject to the requirements of Article 9.

Except as otherwise provided herein, no Member shall have the right or power to: (a) withdraw its contribution to the capital of the Company or reduce its Commitment; (b) cause the dissolution and winding up of the Company (except to the extent permitted by law) or (c) demand property in return

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for its capital contributions. No Member, in its capacity as such, shall take any part in the control of the affairs of the Company, undertake any transactions on behalf of the Company, or have any power to sign for or otherwise to bind the Company.

A Member may hold both Common Units and, if issued, Preferred Units. A Member who holds both Common Units and Preferred Units shall be treated separately as a Common Unitholder with respect to such Member’s Common Units and as a Preferred Unitholder with respect to such Member’s Preferred Units, except as otherwise provided in this Agreement.

Each Member has entered into a Subscription Agreement pursuant to which such Member will receive Common Units in exchange for such Member’s Capital Contribution to the Company in an amount equal to such Member’s Initial Commitment.

“Capital Contribution” means, with respect to each Member, the amount of cash, property or other assets received by the Company from such Member with respect to the Units of limited liability company interest owned by such Member, including, with respect to the Pantheon Member, the amount of cash, property or other assets received by the Company in connection with the transactions contemplated by the Contribution Agreement and the Merger Agreement. The amount of Capital Contribution (as applicable to Pantheon Member) shall be the “Contributed Capital” for purposes of the “Incentive Fee” under, and as defined in, the Investment Advisory Agreement.

“Initial Commitment” means, with respect to each Member, the amount of the “Initial Commitment” for such Member as set forth in the books and records of the Company next to such Member’s name. The Initial Commitment for the Pantheon Member will give effect to the consideration paid by the Pantheon Member pursuant to the Merger Agreement and the contribution pursuant to that certain Contribution Agreement, dated as of October 31, 2024, by and among the Pantheon Member, the Company and, solely for certain specified purposes thereunder, Silver Merger Sub LLC, a Delaware limited liability company.

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“Drawdown Purchase Price” shall mean, for each Drawdown Date, an amount in U.S. dollars equal to the aggregate amount of Undrawn Commitments being drawn down by the Company on that Drawdown Date.

“Drawdown Unit Amount” shall mean, for each Drawdown Date, a number of Common Units determined by dividing (i) the applicable Drawdown Purchase Price for that Drawdown Date by (ii) the applicable then-current NAV per Unit.

For the avoidance of doubt, “then-current NAV per Unit” as set forth in this Section 3.4.2 will consist of the NAV per Unit determined in accordance with the requirements of the Investment Company Act.

“Undrawn Commitment” shall mean, with respect to the Pantheon Member, the sum of (x) “Unfunded Commitment Amount” (reduced by the aggregate amount of all contributions made by the Pantheon Member after the date of this Agreement in accordance with this Section 3.4.2 to satisfy an Unfunded Commitment), (y) “Defensive Funding Commitment Amount” (reduced by the aggregate amount of all contributions made by the Pantheon Member after the date of this Agreement in accordance with this Section 3.4.2 to satisfy a Defensive Funding), and (z) the Working Capital Funding Commitment Amount, in each case, as set forth next to such Member’s name in the books and records of the Company under the headings “Unfunded Commitment Amount,” “Defensive Funding Commitment Amount,” and Working Capital Funding Commitment Amount, respectively.

“Working Capital Funding Commitment Amount” means a commitment to fund working capital, including Company Expenses, in the amount set forth Company’s books records under the heading “Working Capital Funding Commitment Amount.”

“Commitment” means, with respect to each Member, such Member’s Initial Commitment plus, solely with respect to the Pantheon Member, its Undrawn Commitment.

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Except for the Capital Contributions contemplated by Section 3.4.1 and Section 3.4.2 hereof with respect to the Pantheon Member, no Member shall be required or have any obligation or right to make any additional Capital Contributions to the Company, and no Member shall be permitted to make any additional Capital Contributions to the Company without the prior written consent of the board of directors of the Company (the “Board”). The Board, subject to Section 3.4.1 and Section 3.4.2, shall have the authority to accept additional Capital Contributions to the Company in such amount as determined by the Board in its sole and absolute discretion.

Subject to the applicable provisions of this Agreement, and approval by the Board and, except for Units to be issued pursuant to Section 3.4.2, the prior written consent of the Pantheon Member, the Company shall have the right to issue or sell to any Person any of the following (which for purposes of this Agreement shall be referred to as “Additional Interests”): additional (a) Common Units, (b) Preferred Units, (c) any other class of membership interests, and (d) warrants, options, or other rights to purchase or otherwise acquire Common Units, Preferred Units, or any other class of membership interest. Subject to the provisions of this Agreement, and approval by the Board and, except for Units to be issued pursuant to Section 3.4.2, the prior written consent of the Pantheon Member, the Company shall determine the number of each class or series of membership interests to be issued or sold and the contribution, if any, required in connection with the issuance of such Additional Interests. In order for a Person to be admitted as a new Member of the Company with respect to an Additional Interest, such Person shall have delivered to the Company (i) a joinder to this Agreement in the form acceptable to the Board and the Pantheon Member to the effect that such Person shall be fully bound by the terms and conditions of this Agreement applicable to such Additional Interest as a party hereto, and (ii) such other documents and instruments as the Board determines to be necessary or appropriate in connection with the issuance of such Additional Interest to such Person or to effect such Person’s admission as a Member.

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Except as otherwise explicitly provided herein, the Board shall have the power on behalf and in the name of the Company to implement the objectives of the Company and to exercise any rights and powers the Company may possess, including the power to cause the Company to (a) make any elections available to the Company under applicable tax or other laws, (b) make any investments permitted under this Agreement, (c) satisfy any Company obligations (such as payment of the Management Fee and Incentive Fee (as each is defined in the Investment Advisory Agreement), and Company Expenses), (d) make any disposition of Company assets, subject to Section 3.5.3(b), or (e) to take all actions necessary to maintain the Company’s status as a RIC. Notwithstanding any other provision of this Agreement, without the consent of any Member or other Person being required, subject to the Investment Company Act and applicable law, the Company is hereby authorized to execute, deliver and perform, and the Board on behalf of the Company is hereby empowered to authorize an Officer of the Company or other representative to execute and deliver, (x) a Subscription Agreement with each Member, (y) the Investment Advisory Agreement, and (z) any amendment of any such document (to the extent such amendment is approved in accordance with the terms of the relevant agreement and is consistent with the terms of this Agreement) and any other agreement,

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document or other instrument contemplated thereby or related thereto (to the extent that such other agreement, document or other instrument is consistent with the terms of the relevant agreement or this Agreement). Such authorization shall not be deemed a restriction on the power of the Board to cause the Company to enter into other documents.

Notwithstanding any duty otherwise existing at law or in equity, but subject to the provisions of this Agreement and applicable laws (including the Investment Company Act), any Member and its respective direct and indirect partners, members, stockholders, officers, directors, managers, trustees, employees, agents and Affiliates may invest, participate, or engage in (for their own accounts or for the accounts of others), or may possess an interest in, other financial ventures and investment and professional activities of every kind, nature and description, independently or with others, whether now existing or hereafter acquired or initiated, including but not limited to: management of other investment vehicles; investment in, financing, acquisition or disposition of securities; investment and management counseling; providing brokerage and investment banking services; or serving as officers, directors, managers, consultants, advisers or agents of other companies, partners of any partnership, members of any limited liability company or trustees of any trust (and may receive fees, commissions, remuneration or reimbursement of expenses in connection with these activities), whether or not such activities may conflict with any interest of the Company or any of the Members. The fact that a Member may encounter opportunities to purchase, otherwise acquire, lease, sell or otherwise dispose of investment assets, other assets or other business ventures and may take advantage of such opportunities itself or introduce such opportunities to entities in which it has or does not have any interest shall not subject such Member to liability to the Company or to any of the other Members on account of the lost opportunity. Nothing in this Agreement shall be deemed to prohibit any Member or any Affiliate of any Member from dealing with, or otherwise engaging in business with, any other Member or any Person transacting business with the Company or any Portfolio Company. Neither the Company nor any Member shall have any rights, solely by virtue of this Agreement, in or to any activities permitted by this Section 3.6 or to any fees, income, profits or goodwill derived from such activities.

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All meetings of the Members for any purpose shall be at any such place as shall be designated from time to time by the Board and stated in the notice of meeting or in a duly executed waiver of notice thereof.

Meetings of Members may be called by the Board, the Chair of the Board or the Chief Executive Officer(s). The Board of Directors may postpone, adjourn, reschedule or cancel any meeting of Members previously scheduled by the Board of Directors, the Chair of the Board or the Chief Executive Officer(s).

For each meeting, only business specified in the Company’s notice of meeting (or any supplement thereto) may be conducted at such meeting.

A written waiver of any notice, signed by a Member or Director, or waiver by electronic transmission by such person, whether given before or after the time of the event for which such notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting (in person or by remote communication) shall constitute waiver of notice, except attendance for the express purpose at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.

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Any Member whose consent, vote, or approval is required or permitted under any provision of this Agreement may give or withhold such consent, vote, or approval in the sole discretion of such Member, whether reasonably or unreasonably unless otherwise provided herein. The Members (whether individually or in any combination) shall not be entitled to consent to, vote on, or approve any matter for which the action of such Members is not expressly required by the Delaware Act or this Agreement or is not requested by the Board. In the case of any matter for which the action of the Members is expressly required by the Delaware Act or this Agreement, or is requested by the Board, such action shall be effective against and binding on all Members and the Company if taken with the consent of the Board and the consent, vote, or approval of Members then representing a majority-in- interest of Members, unless a different standard or percentage is required by the Delaware Act or this Agreement.

Whenever action is required by this Agreement to be taken by a specified percentage in interest of the Members (or any class or group of Members), such action shall be deemed to be valid if taken upon the written vote or written consent of those Members (or those Members included in such class or group) whose Units represent the specified percentage of the aggregate outstanding Units of all Members (or, if applicable, all Members included in such class or group) at the time. Each Member shall be entitled to one vote for each Unit held on all matters submitted to a vote of the Members. For these purposes, a “majority-in-interest” shall mean Units representing more than 50% of the Common Units, Preferred Units, or Units, as applicable.

If at any time Preferred Units have been issued and are outstanding, any proposal:

ARTICLE 4.— INVESTMENTS AND ACTIVITIES

The primary objective of the Company is to generate current income and, to a lesser extent, capital appreciation, primarily through investing in first lien, first lien/last-out unitranche and second

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lien debt, and unsecured debt, including mezzanine debt, as well as through select equity investments, primarily through direct originations. Each investment currently held by the Company (including investments acquired pursuant to the Contribution Agreement dated as of October 31, 2024, by and among the Company, Pantheon and Silver Merger Sub LLC), is referred to herein as an “Investment” and collectively, the “Investments.”

Except with respect to Defensive Funding and to fund Undrawn Commitments, the Company shall not make any new investments in any entity or any additional investments in the Portfolio Companies. Any determination by the Company to cancel any Unfunded Commitment with respect to any Portfolio Company shall be subject to prior consultation with the Pantheon Member.

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To facilitate the Company’s ability to incur and maintain Financings, other obligations and guarantees and to otherwise make available Credit Support for Financings, other obligations and guarantees, each Member hereby agrees to and acknowledges the acknowledgements, agreements and representations set forth in Appendix II.

Notwithstanding anything herein to the contrary, any Lender or other Person granted a lien with respect to any of the Assigned Rights and/or the right to exercise any Lender Power shall be an intended beneficiary of this Section 4.2 and shall be entitled to enforce the provisions of this Section 4.2 and Appendix II.

Subject to Section 3.4.4, the Board may cause the Company to issue one class of Preferred Units, which Preferred Units would have rights senior to those of the Common Units, and such other characteristics as the Board may determine, but, for so long as the Company operates as a BDC, in a

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manner that complies with the legal requirements applicable to a BDC. Prior to the issuance of a series of Preferred Units, the Board shall set the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms or conditions of redemption. For the avoidance of doubt, no Preferred Units are issued or outstanding as of the date of this Agreement.

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For the avoidance of doubt, any portion of distributions made by the Company to the Common Unitholders which represents a return of such Common Unitholders’ capital contributions to the Company, as determined by the Board (each such amount, “Returned Capital”), shall not increase the Pantheon Member’s Undrawn Commitment.

Proceeds realized by the Company from the sale or repayment of any Investment shall be distributed to Members in accordance with Section 4.4.1 and shall not be retained and reinvested by the Company, except as permitted by Section 4.4.1, Section 5.1(c) or as otherwise agreed in writing between the Pantheon Member and the Company (as directed by the Board).

ARTICLE 5.— FEES AND EXPENSES; ADVISORY AGREEMENT

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The Company shall enter into the Amended and Restated Investment Management and Advisory Agreement (the “Investment Advisory Agreement”) with the Investment Adviser for assistance in providing management services to the Company, in the form attached hereto as Exhibit 1.

ARTICLE 6.— CAPITAL OF THE COMPANY

The Company will issue Common Units to investors from time to time at the NAV per Common Unit. Such Common Units will be issued through drawdowns on specific Drawdown Dates, with the Pantheon Member required to contribute all or a portion of its Undrawn Commitments in exchange for Common Units as set forth in this Agreement. Other than the Pantheon Member as required under Section 3.4.2, no Common Unitholder shall be obligated to make any Capital Contributions other than such Common Unitholder’s Initial Contribution.

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No interest shall accrue on any Common Unitholder’s Capital Contribution, and any interest actually received by reason of investment of any part of the Company’s funds shall be included in the Company’s property.

Except as otherwise provided in this Agreement, if a Common Unitholder fails to make a required capital contribution or other required payment to the Company, in part or in full, and such default remains uncured for a period of ten calendar days, the Company shall be permitted to declare such Common Unitholder (any such Common Unitholder, a “Defaulting Unitholder”) to be in default of its obligations and shall be permitted to pursue one or any combination of the following remedies:

Upon a default, the Company may, in its discretion, require each non-Defaulting Unitholder to make an additional capital contribution (not to exceed its then Undrawn Commitment) in respect of such overdue capital contribution. The funding of the overdue capital contribution by the non- Defaulting Unitholders will not alter the Defaulting Unitholder’s obligations to the Company, including any obligation to make future capital contributions or other required payments. The amounts

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that are paid by non-Defaulting Unitholders will reduce the remaining Undrawn Commitments of the non-Defaulting Unitholders.

Notwithstanding anything to the contrary in this Agreement, the Company will hold the Defaulting Unitholder responsible for all fees and expenses, including without limitation, attorneys’ fees or sales commissions, incurred as a result of the default.

ARTICLE 7.— DURATION OF THE COMPANY

ARTICLE 8.— LIQUIDATION OF ASSETS ON DISSOLUTION

Subject to Section 18-804 of the Delaware Act, the proceeds of liquidation shall be applied in the following order of priority:

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A reasonable time shall be allowed for the winding up of the affairs of the Company in order to minimize any losses otherwise attendant upon such a winding up.

None of the liquidator, the Directors, the Officers, the Investment Adviser or their respective partners, members, stockholders, officers, directors, managers, employees, agents and Affiliates shall be personally liable to any Member for the return of the capital contributions of any Member.

Notwithstanding anything to the contrary set forth in this Article 8, but subject to the other limitations on investments set forth in this Agreement and the Delaware Act, the liquidator may, at any time or times after dissolution, cause the Company to make additional investments in entities which were Portfolio Companies on the date of dissolution (including any successor to, or subsidiary of, a Portfolio Company), if the liquidator believe that such additional investments are in the best interest of the Members and in furtherance of the winding up of the affairs of the Company.

ARTICLE 9.— LIMITATIONS ON TRANSFERS OF UNITS; REQUIRED TRANSFERS

No assignment, pledge, mortgage, hypothecation, gift, sale or other disposition or encumbrance (collectively, “Transfer”) of a Member’s Units, including a Transfer of solely an economic interest, in whole or in part, shall be made other than pursuant to this Section 9.1. Any attempted Transfer of all or any part of a Member’s Units in violation of this Agreement will be void to the maximum extent permitted by law, and any intended recipient of the Units will acquire no rights in such and will not be treated as a Member for any purpose. Each Transfer shall be subject to all of the terms, conditions, restrictions and obligations set forth in this Agreement and shall be evidenced by an assignment agreement executed by the transferor, the transferee(s) and the Company, in form and substance satisfactory to the Company. No Transfer will be effectuated except by registration of the Transfer on the Company’s books.

Other than any Transfer to such Member’s Permitted Transferee on prior written notice to the Company (but subject to Sections 9.1.3 through 9.1.7 and Section 9.2.1), the prior written consent of

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the Board shall be required for any Transfer of all or part of any Member’s Units, including a Transfer of solely an economic interest in the Company.

The transferor and transferee(s) shall provide such additional written representations as the Company reasonably may request.

No Transfer of Units shall be permitted, subject to the discretion of the Board, if such Transfer or the admission of the transferee to the Company as a substituted Member, would:

In the event any Person is or becomes the owner of Units in the Company and such ownership would result in a violation of any of the provisions of Section 9.1.4, the Company may repurchase the Units of such Person, or require such Person to Transfer their Units to another Person, and each Member consents to such required repurchase or Transfer of Units as set forth in this Section 9.1.5.

The Company may, but is not required to, condition its consent to any Transfer hereunder upon receipt by the Company of a written opinion of counsel for the Company, or of other counsel reasonably satisfactory to the Company, in form and substance satisfactory to the Company, as to such legal matters as the Company reasonably may request. No opinion will be required for any Transfer that is merely an assignment of Units to any successor trustee of an ERISA Member. For all purposes of this Agreement, opinions of counsel referred to herein to be delivered in connection with a Transfer may be delivered by an in-house counsel of the Member (or an affiliate of the Member) whom the Member reasonably believes to have expertise in the area of law which is the subject matter of the opinion.

Any Member who requests or otherwise seeks to effect a Transfer of all or a portion of its Units hereby agrees to reimburse the Company, at its request, for any expenses reasonably incurred by the Company in connection with such Transfer, including the costs of seeking and obtaining the legal opinion required by Section 9.1.6 and any other legal, accounting and miscellaneous expenses

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(“Transfer Expenses”), whether or not such Transfer is consummated. At its election, and in any event if the transferor has not reimbursed the Company for any Transfer Expenses incurred by the Company in preparing for or consummating a proposed or completed Transfer within 30 days after the Company has delivered to such Member written demand for payment, the Company may seek reimbursement from the transferee of such interest (or portion thereof). If the transferee does not reimburse the Company for such Transfer Expenses within a reasonable time (or, in the case of a Transfer not consummated, the prospective transferor does not reimburse the Company within a reasonable time), the Company may withhold such amount from distributions that would otherwise be made with respect to such interest (with such withheld amount treated as having been distributed to the holder of such interest for all other purposes of this Agreement).

Any transferee of a Member’s Units transferred in accordance with the provisions of this Article 9 shall be admitted as a substituted Member upon its execution (whether on its own behalf or via an attorney-in-fact) of an assignment agreement, a Subscription Agreement and a joinder to this Agreement in the form reasonably acceptable to the Board. Any transfer of Units in violation of the foregoing will be void, and any intended transferee will acquire no rights in such Units and will not be treated as a Member for any purpose.

The transferee of Units transferred pursuant to this Article 9 that is admitted to the Company as a substituted Member shall succeed to the rights and liabilities of the transferor Member with respect to such interest and, after the effective date of such admission, the Commitment of the transferor with respect to the applicable class of Unit being transferred shall become the applicable Commitment of the transferee, to the extent of the Unit transferred. If a transferee is not admitted to the Company as a substituted Member, (a) such transferee shall have no right to participate with the Members in any votes taken or consents granted or withheld by the Members hereunder, and (b) the transferor shall remain liable to the Company for all contributions and other amounts payable with respect to the transferred interest to the same extent as if no Transfer had occurred.

If a Transfer has been proposed or attempted but the requirements of this Article 9 have not been satisfied, the Company shall not admit the purported transferee as a substituted Member but, to the contrary, shall ensure that the Company (a) continues to treat the transferor as the sole owner of the Units purportedly transferred, (b) makes no distributions to the purported transferee and (c) does not furnish to the purported transferee any tax or financial information regarding the Company. The Company shall also not otherwise treat the purported transferee as an owner of any Units (either legal or equitable), unless required by law to do so. To the maximum extent permitted by law, the Company shall be entitled to seek injunctive relief, at the expense of the purported transferor, to prevent any such purported Transfer.

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ARTICLE 10.— LIMITATION OF LIABILITY AND INDEMNIFICATION

To the fullest extent permitted by applicable law, none of the Company’s Officers, Directors or employees (each, an “Indemnified Person”) will be liable to the Company or to any Member for any act or omission performed or omitted by any such Indemnified Person (including any acts or omissions of or by another Indemnified Person), in the absence of willful misfeasance, gross negligence, bad faith, reckless disregard of the duties involved in the conduct of such Indemnified Person’s respective position or criminal wrongdoing on its part (“Disabling Conduct”).

The Company shall indemnify each Indemnified Person for any loss or damage incurred by it in connection with any matter arising out of, or in connection with, the Company, including the operations of the Company and the offering of Units, except for losses incurred by an Indemnified Person arising solely from the Indemnified Person’s own Disabling Conduct.

In addition to the right to indemnification conferred in Section 10.2, an Indemnified Person shall also have the right to be paid by the Company the expenses (including attorney’s fees) incurred in appearing at, participating in or defending any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses under this Article 10 (which shall be governed by Section 10.4 (hereinafter an “advancement of expenses”)); provided, however, that, if applicable laws require or in the case of an advance made in a proceeding brought to establish or enforce a right to indemnification or advancement, an advancement of expenses incurred by an Indemnified Person in his or her capacity as a Director or Officer shall be made solely upon delivery to the Company of an undertaking (hereinafter an “undertaking”), by or on behalf of such Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a “final adjudication”) that such Indemnified Person is not entitled to be indemnified or entitled to advancement of expenses under Section 10.2 and this Section 10.3 or otherwise.

If a claim under Section 10.2 or Section 10.3 is not paid in full by the Company within (a) 60 days after a written claim for indemnification has been received by the Company, or (b) 20 days after a claim for an advancement of expenses has been received by the Company, the Indemnified Person may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim or to obtain advancement of expenses, as applicable. To the fullest extent permitted by law, if successful in whole or in part in any such suit, or in a suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnified Person shall be entitled to be paid also the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnified Person to enforce a right to indemnification hereunder (but not in a suit brought by the Indemnified Person to enforce a right to an advancement of expenses) it shall be a defense that, and (b) any suit brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the Company shall be entitled to recover such expenses upon a final adjudication that, the Indemnified Person has not met any applicable standard for indemnification set forth in the

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Delaware Act. Neither the failure of the Company (including its Directors who are not parties to such action, a committee of such Directors, independent legal counsel, or the Members) to have made a determination prior to the commencement of such suit that indemnification of the Indemnified Person is proper in the circumstances because the Indemnified Person has met the applicable standard of conduct set forth in the Delaware Act, nor an actual determination by the Company (including its Directors who are not parties to such action, a committee of such Directors, independent legal counsel, or the Member) that the Indemnified Person has not met such applicable standard of conduct, shall create a presumption that the Indemnified Person has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnified Person, be a defense to such suit. In any suit brought by the Indemnified Person to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Company to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnified Person is not entitled to be indemnified, or to such advancement of expenses, under this Article 10 or otherwise shall be on the Company.

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For purposes of this Section 10.5(b), the following terms shall have the following meanings:

The rights granted pursuant to the provisions of this Article 10 shall vest at the time a person becomes a Director, Officer or employee of the Company and shall be deemed to create a binding contractual obligation on the part of the Company to the persons who from time to time are elected as Officers, Directors or employees of the Company, and such persons in acting in their capacities as Officers, Directors or employees of the Company (including any Officer, Director or employee of the Company acting at the request of the Company as a director, officer, employee, agent or trustee of another limited liability company, corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan) shall be entitled to rely on such provisions of this Article 10 without giving notice thereof to the Company.

The rights conferred upon Indemnified Person in this Article 10 shall be contract rights and such rights shall continue as to an Indemnified Person who has ceased to be a Director, Officer and shall inure to the benefit of the Indemnified Person’s heirs, executors and administrators. Any amendment, alteration or repeal of this Article 10 that adversely affects any right of an Indemnified Person or its successors shall be prospective only and shall not limit, eliminate, or impair any such right with respect to any proceeding involving any occurrence or alleged occurrence of any action or omission to act that took place prior to such amendment or repeal.

The Company may maintain insurance, at its expense, to protect itself and any Director, Officer or employee of the Company or another corporation, partnership, joint venture, trust or other enterprise

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against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under applicable law.

If any Indemnified Person or the Company itself is subject to any federal or state law, rule or regulation which restricts the extent to which any Person may be exonerated or indemnified by the Company, the limitation of liability provisions set forth in Section 10.1 and the indemnification provisions set forth in Section 10.2 shall be deemed to be amended, automatically and without further action by the Members, to the minimum extent necessary to conform to such restrictions. Without limiting the foregoing, for so long as the Company is regulated under the Investment Company Act, the limitation of liability and indemnification provisions shall be the limited to the extent provided by the Investment Company Act and by any valid rule, regulation or order of the SEC thereunder.

ARTICLE 11.— AMENDMENTS

Except as otherwise provided in this Agreement, the terms and provisions of this Agreement may be amended with the consent of the Board (which term includes any waiver, modification, or deletion of this Agreement) during or after the term of the Company, together with the prior written consent of the Pantheon Member.

Notwithstanding the provisions of Section 11.1.1 the following amendments may be made with the consent of the Board and without the need to seek the consent of any Member:

provided, however, that no amendment shall may be made pursuant to clauses (a) through (d) above if such amendment would (1) subject any Member to any adverse economic consequences (which amendment shall require the consent of each such Member), (2) diminish the rights or protections of

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one or more Members (including, for the avoidance of doubt, provisions intended to protect one or more Members from suffering certain adverse tax consequences) (which amendment shall require the consent of each such Member), or (3) diminish or waive in any material respect the duties and obligations of the Board to the Company or the Members (which amendment shall require the consent of each such Member).

Notwithstanding the provisions of Section 11.1.1, any provision in this Agreement that requires the consent, action or approval of a specified Member or a specified percentage in interest of the Members may not be amended without the consent of such specified Member or such specified percentage in interest of the Members, as applicable.

ARTICLE 12.— ADMINISTRATIVE PROVISIONS

At all times the Company shall keep proper and complete books of account, in which shall be entered fully and accurately the transactions of the Company. Such books of account shall be kept on the accrual method of accounting for both tax and accounting purposes, and shall be maintained in accordance with U.S. generally accepted accounting principles (“GAAP”). The Company shall also maintain: (a) an executed copy of this Agreement (and any amendments hereto); (b) the Certificate (and any amendments thereto); (c) executed copies of any powers of attorney pursuant to which any document described in clause (a) or (b) has been executed by the Company; (d) a current list of the name, address, Commitments and taxpayer identification number, if any, of each Member; (e) copies of all tax returns filed by the Company; and (f) all financial statements of the Company. These books and records shall at all times be maintained in accordance with the Company’s record retention policy.

The Company shall file for record with the appropriate public authorities and, if required, publish the Certificate and any amendments thereto.

The Company will continue to receive the services of State Street Bank and Trust Company (the “Administrator”) pursuant to the Administration and Custodial Services Agreement, dated as of May 31, 2016 (the “Administration Agreement”). Upon expiration or termination of the Administration Agreement, the Board may in its sole discretion select any other service provider experienced in providing such services to investment funds similar to the Company to serve as administrator of and provide custodial services to the Company.

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At any time before the Company’s complete liquidation, the Pantheon Member, upon reasonable written demand, at its own expense and for purposes reasonably related to its interest as a Member, may (a) fully examine and audit the Company’s books, records, accounts and assets, including bank account balances and (b) examine, or request that the Company furnish, such additional information as is reasonably necessary to enable the Pantheon Member to review the state of the investment activities of the Company; provided that the Company can obtain such additional information without unreasonable effort or expense; provided, further, that the Company may redact confidential information relating to another Member. Any such examination or audit shall be made (1) only upon ten (10) Business Days’ prior written notice to the Company, (2) during normal business hours and (3) without undue disruption.

In the event of any Member Litigation (as defined in the Merger Agreement) arising after the date of this Agreement, the Company shall notify the Pantheon Member promptly after becoming aware of such Member Litigation.

Notwithstanding the foregoing provisions of Sections 12.2.1, 12.2.2 and 12.2.3, the Company shall have the benefit of the confidential information provisions of Section 18-305(c) of the Delaware Act and the obligation to make company information available or to furnish company information shall be subject to Section 12.7.7.

The fair value of the Company’s assets will be determined pursuant to a valuation policy approved by the Board.

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For U.S. federal income tax purposes, the Company’s year is the calendar year, unless otherwise required by the Code or permitted by applicable law. For financial reporting purposes, the Company’s fiscal year is a calendar year ending December 31.

The Company’s independent public auditors shall be PricewaterhouseCoopers LLP, or another public accounting firm of similar standing, as determined by the Board of Directors.

The Company has made an election to be classified as an association that is taxable as a corporation and the Company shall maintain such classification.

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The Company will use reasonable best efforts to maintain its status as a RIC for U.S. federal income tax purposes, and the Board shall seek to cause the Company to meet any requirements necessary to maintain RIC qualification, including source-of-income and asset diversification requirements and distributing annually an amount equal to at least 90% of its “investment company taxable income” and taking any other steps as the Board determines in respect of any requirements necessary to maintain RIC qualification.

The Company currently as of the date hereof is taxable as a RIC and will cause to be delivered after the end of each calendar year to each Member who was a Member at any time during such calendar year, such information as may be necessary for the preparation of such Member’s U.S. federal, state, and local tax returns.

Each Member agrees that such Member will, upon request by the Company, execute any forms or documents (including a power of attorney or settlement or closing agreement), provide any information and take any further action requested by the Company, and that the Company may execute any forms or documents or obtain any information on such Member’s behalf that relate to such Member’s investment in the Company, in connection with any tax matter affecting the Company.

Each Member agrees to promptly provide the Company with information about such Member that the Company reasonably requests to comply with any regulatory, tax or legal requirement, to give effect to any tax election or for any other tax purpose related to the business of the Company.

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This Agreement shall be binding upon and shall inure to the benefit of the respective heirs, successors, permitted assigns and legal representatives of the parties hereto.

THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. In particular, it shall be construed to the maximum extent possible to comply with all of the terms and conditions of the Delaware Act. If, nevertheless, it shall be determined by a court of competent jurisdiction that any provision or wording of this Agreement shall be invalid or unenforceable under said Delaware Act or other applicable law, such invalidity or unenforceability shall not invalidate the entire Agreement. In that case, this Agreement shall be construed so as to limit any term or provision so as to make it enforceable or valid within the requirements of any applicable law, and, in the event such term or provision cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable provisions.

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Unless the Company otherwise agrees in writing, any legal action or proceeding with respect to this Agreement may be brought in the courts of the State of Delaware, and, by execution and delivery of this Agreement, each Member hereby irrevocably accepts for him or herself and in respect of his or her property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Such Member hereby further irrevocably waives any claim that any such courts lack personal jurisdiction over such Member, and agrees not to plead or claim, in any legal action proceeding with respect to this Agreement in any of the aforementioned courts, that such courts lack personal jurisdiction over such Member. To the fullest extent permitted by applicable law, any legal action or proceeding with respect to this Agreement by a Member seeking any relief whatsoever against the Company shall be brought only in the Chancery Court of the State of Delaware (or other appropriate state court in the State of Delaware), and not in any other court in the United States of America, or any court in any other country. Such Member hereby irrevocably waives any objection that such Member may now or hereafter have to the laying of venue of any of the aforesaid actions or proceedings arising out of or in connection with this Agreement brought in the aforesaid courts and hereby further irrevocably, to the extent permitted by applicable law, waives his or her rights to plead or claim and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum. UNLESS THE COMPANY OTHERWISE AGREES IN WRITING, THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT SUCH PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION DIRECTLY OR INDIRECTLY BASED UPON OR ARISING OUT OF THIS AGREEMENT.

Each Member hereby irrevocably waives any and all rights that it may have to maintain an action for partition of any of the Company’s property.

Each Member understands that in addition to the restrictions on transfer contained in this Agreement, it must bear the economic risks of its investment for an indefinite period because the interests in the Company have not been registered under the Securities Act or under any applicable securities laws of any state or other jurisdiction and, therefore, may not be sold or otherwise transferred unless they are registered under the Securities Act and any such other applicable securities laws or an exemption from such registration is available.

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provided that (A) the Pantheon Member shall advise its underlying investors of the confidential nature of the information prior to any disclosure and (B) the Pantheon Member specifies that such information was not prepared, reviewed, or approved by the Company or the Investment Adviser.

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The Company will use reasonable best efforts to comply with all laws, rules and regulations applicable to the Company, including, for the avoidance of doubt, all applicable anti-money laundering, anti-terrorism laws and anti-bribery laws, as well as applicable rules and regulations imposed by applicable securities laws; provided, that the Company will have no liability under this Section 12.7.8 in the event that noncompliance with an applicable law does not, or would not reasonably be expected to, have an adverse effect on the Company, other than a de minimis adverse effect. The Company has established and will maintain internal controls, policies and procedures reasonably designed to ensure compliance with all applicable anti-money laundering, anti-terrorism laws and anti-bribery laws, as well as applicable rules and regulations imposed by applicable securities laws.

In order for the Company to determine the Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, the Board may fix a record date which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall, unless otherwise required by law, be no more than sixty (60) nor less than ten (10) days prior to the date of such meeting. If the Board so fixes a date, such date shall also be record date for determining the Members entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining Members entitled to notice of or to vote at a meeting of Members shall be the close of business on the day next preceding the day on which notice is give or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held. A determination of Members of record entitled to notice of or to vote at a meeting of Members shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

The Company will notify the Members within 45 Business Days of a change in the independent auditors of the Company (including in the notification a general description of the reasons therefore and the name of the new independent auditors).

Whenever the context of this Agreement permits, the masculine gender shall include the feminine and neuter genders (and vice versa), and reference to singular or plural shall be

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interchangeable with the other. The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the other provisions, and the parties intend that this Agreement shall be construed and reformed in all respects as if any such invalid or unenforceable provision(s) were omitted or, at the direction of a court, modified in order to give effect to the intent and purposes of this Agreement. References in this Agreement to particular sections or provisions of the Code or the Delaware Act or any other statute, regulation or other governmental rule shall be deemed to refer to such sections or provisions as they may be amended, modified, codified, replaced or re-enacted, in whole or in part, after the date of this Agreement, and including rules, regulations, enforcement procedures and any interpretations promulgated thereunder. Captions in this Agreement are for convenience only and do not define or limit any term of this Agreement. It is the intention of the parties that every covenant, term, and provision of this Agreement shall be construed simply according to its fair meaning and not strictly for or against any party (notwithstanding any rule of law requiring an Agreement to be strictly construed against the drafting party), it being understood that the parties to this Agreement are sophisticated and have had adequate opportunity and means to retain counsel to represent their interests and to otherwise negotiate the provisions of this Agreement. This Agreement together with the related Subscription Agreement and with any other agreement (if any) between the Company and any Member (“Other Agreement”), shall constitute the entire agreement and understanding among the respective parties to such agreements with respect to the subject matter hereof and thereof. There are no representations, warranties or agreements made by the Company except to the extent set forth in this Agreement, the Subscription Agreements and any such other agreement (if applicable). This Agreement or any amendment hereto may be signed in any number of counterparts, each of which shall be an original, but all of which taken together shall constitute one agreement or amendment, as the case may be.

ARTICLE 13.— RESTRICTIONS ON CERTAIN INVESTORS

The Company shall use reasonable best efforts to ensure that “benefit plan investors” hold less than twenty five percent (25%) of each class of equity interests in the Company (determined in accordance with the Plan Assets Regulation).

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IN WITNESS WHEREOF, the undersigned has executed this Fourth Amended and Restated Limited Liability Company Agreement of Silver Capital Holdings LLC as of the day, month and year first above written.

 

MEMBER:
PANTHEON SILVER HOLDINGS LLC
By:	Pantheon Ventures (US) LP, its investment adviser
By:	Pantheon (US) LLC, its general partner
By:	/s/ ▇▇▇▇▇▇ ▇▇▇▇
	Name: ▇▇▇▇▇▇ ▇▇▇▇
	Title: Managing Director
	/s/ ▇▇▇▇▇▇ ▇▇▇▇
	▇▇▇▇▇▇ ▇▇▇▇

 

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SILVER CAPITAL HOLDINGS LLC
By:	/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
	Name: ▇▇▇▇▇ ▇▇▇▇▇▇
	Title: Co-Chief Executive Officer and Co-President

 

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APPENDIX I

SILVER CAPITAL HOLDINGS LLC

DEFINITIONS

For purposes of this Agreement, the following terms shall have the respective meanings set forth below (such meanings to be equally applicable to both singular and plural forms of the terms so defined). Additional defined terms are set forth in the provisions of this Agreement to which they relate.

 

Administration Agreement	As set forth in Section 12.1.3.
Administrator	As set forth in Section 12.1.3.
Affiliate	With respect to the Person to which it refers, a Person that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such subject Person. For this purpose, each Officer shall be deemed to be an Affiliate of the Investment Adviser, but Portfolio Companies or portfolio companies of the Existing Fund shall not be considered Affiliates of the Board, the Investment Adviser, any Officer, any member of the Board or any member or manager of the Investment Adviser. “Affiliated” shall have the corresponding meaning.
Agreement	As set forth in the introductory paragraph to this Agreement.
Assets	As set forth in Section 4.2.1.
Assigned Rights	As set forth in Section 4.2.1.
Audit Committee	As set forth in Section 3.5.2(a).
BDC	A business development company as defined in Section 2(a)(48) of the Investment Company Act.
Board	As set forth in Section 3.5.1(a).
Business Day	A “business day” as defined in Rule 14d-1 of the Exchange Act.
Certificate	As set forth in Section 2.1.1.
Chair of the Board	As set forth in Section 3.5.1(a).
Chief Executive Officer(s)	As set forth in Section 3.5.1(c).

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Cause	(i) a final judicial determination by a court of competent jurisdiction that a Director has committed any action relating to the performance of his or her duties as a director of PMMC that constitutes gross negligence, fraud or willful misconduct, or (ii) that a Director has been indicted or convicted in a court of competent jurisdiction of a felony for (A) a crime involving fraud, moral turpitude or violence; or (B) an intentional or material violation of applicable securities or regulatory laws.
Code	The United States Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto.
Commitment	As set forth in Section 3.4.2.
Common Unitholder	Any Member who has acquired the Common Units pursuant to a Subscription Agreement with the Company.
Common Units	Common units of limited liability company interest in the Company.
Company	As set forth in the introductory paragraph of this Agreement.
Company Expenses	As set forth in Section 5.1.
Compliance Committee	As set forth in Section 3.5.2(a).
Contract Review Committee	As set forth in Section 3.5.2(a).
Credit Support	As set forth in Section 4.2.1.
Defaulting Unitholder	As set forth in Section 6.2.1.
Defensive Funding	Provision by the Company or any of its controlled Affiliates of financing to Portfolio Companies to address present or anticipated potential future challenges or uncertainties to ensure such Portfolio Companies have sufficient liquidity to weather adverse conditions, including those related to economic downturns, market volatility, or unexpected operational disruptions.
Delaware Act	As set forth in Section 2.1.1.
Director	As set forth in Section 3.5.1.
Disabling Conduct	As set forth in Section 10.1.
Disclosure Laws	As set forth in Section 12.7.7(e).

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Drawdown Date	As set forth in Section 3.4.2.
Drawdown Notice	As set forth in Section 3.4.2.
Drawdown Purchase Price	As set forth in Section 3.4.2.
Drawdown Unit Amount	As set forth in Section 3.4.2.
ERISA Member	Any Member that is (a) an “employee benefit plan” within the meaning of Section 3(3) of ERISA and subject to Part 4 of Title I of ERISA, (b) a “plan”, as defined in Section 4975(c)(1) of the Code, to which the provisions of Section 4975 of the Code are applicable, or (c) any other entity or account, any of the assets of which constitute “plan assets”, within the meaning of ERISA, of a plan described in (a) or (b) above.
Exchange Act	The U.S. Securities Exchange Act of 1934, as amended.
Existing Fund	▇▇▇▇▇▇▇ ▇▇▇▇▇ BDC, Inc.
Family Group	With respect to any Person who is an individual, (i) such Person’s lineal descendants (whether natural or adopted) and any spouse of such descendants, and such Person’s spouse, former spouse and parents (collectively, “relatives”), (ii) the trustee, fiduciary or personal representative of such Person and any trust solely for the benefit of such Person or such Person’s relatives or (iii) any limited partnership or limited liability company the governing instruments of which provide that such Person shall have the exclusive, nontransferable power to direct the management and policies of such entity and of which the sole owners of partnership interests, membership interests or any other equity interests are, and will remain, limited to such Person and such Person’s relatives.
Financing	As set forth in Section 4.2.1.
GAAP	As set forth in Section 12.1.1.
Governance and Nominating Committee	As set forth in Section 3.5.2(a).
Indemnified Person	As set forth in Section 10.1.
Independent Director	As set forth in Section 3.5.1(h).
Investment	As set forth in Section 4.1.

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Investment Adviser	▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P., a Delaware limited partnership, or any successor thereto.
Investment Advisory Agreement	As set forth in Section 5.2.
Investment Company Act	The Investment Company Act of 1940, as amended.
Lender	(i) any lender, issuer of letters of credit or provider of other Financings, (ii) any holder of indebtedness, assignments, guarantees or other obligations relating to any of the foregoing, and (iii) any of their respective agents, trustees, successors and assigns.
Lender Power	As set forth in Section 4.2.1.
NAV	The net asset value of the Company.
Other Agreement	As set forth in Section 12.7.11.
Pantheon Member	Pantheon Silver Holdings LLC
Permitted Transferee	(a) In the case of a Member that is a natural person, a member of such Member’s Family Group (whether inter vivos or upon death); provided, however, that, prior to any such Transfer, such Member has demonstrated to the reasonable satisfaction of the Board that such Member will retain, until his or her death, all rights to vote and Transfer the Units that are proposed to be Transferred to the member of Member’s Family Group; and (b) in the case of a Member that is not a natural person, an Affiliate of such Member.
Person	Any individual, general partnership, limited partnership, limited liability partnership, limited liability company, corporation, joint venture, trust, statutory or business trust, cooperative or association or any governmental body or agency, and the heirs, executors, administrators, legal representative, successors and assigns of such Person where the context so permits.
Placement Agent	Any person who has been engaged by the Company as a finder, solicitor, marketer, consultant, broker, or other intermediary to assist in the placement of the securities.

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Plan Assets Regulation	The regulation concerning the definition of “plan assets” under ERISA adopted by the United States Department of Labor and codified in 29 C.F.R. §2510.3-101, as modified by Section 3(42) of ERISA.
Portfolio Company	Any entity in which the Company or any of its controlled Affiliates holds an Investment.
Preferred Appointed Directors	As set forth in Section 3.5.1.
Preferred Unitholder	Any Member that owns Preferred Units.
Preferred Units	Preferred units of limited liability company interest in the Company.
Returned Capital	As set forth in Section 4.4.2.
RIC	A regulated investment company as defined in the Code.
SEC	As set forth in Section 3.5.2(b).
Secretary	As set forth in Section 3.5.1(c).
Securities Act	The U.S. Securities Act of 1933, as amended.
Subscription Agreement	The subscription agreement by which any Member agreed to purchase such Member’s Units.
Transfer	As set forth in Section 9.1.1.
Transfer Expenses	As set forth in Section 9.1.7.
Undrawn Commitment	As set forth in Section 3.4.2.
Unfunded Commitments	Investments by the Company or any of its controlled Affiliates in the Portfolio Companies that have been committed but not yet satisfied.
Unitholder	A Common Unitholder or a Preferred Unitholder, as the context requires.
Units	Common Units and/or Preferred Units, as the context requires.

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APPENDIX II

Member Acknowledgements

In connection with the Financings, other obligations and guarantees by the Company contemplated in Section 4.2, each Member hereby makes available as Credit Support the following acknowledgements, agreements and representations for the benefit of the Company and any Lender or other holder of other obligations or guarantees:

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EXHIBIT 1

Investment Advisory Agreement

[See attached]

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Execution Version

AMENDED AND RESTATED INVESTMENT MANAGEMENT

AND ADVISORY AGREEMENT

This AMENDED AND RESTATED INVESTMENT MANAGEMENT AND ADVISORY AGREEMENT (this “Agreement”) is made as of the 17th day of December between ▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT, L.P. (the “Investment Adviser”), a limited partnership formed under the laws of the state of Delaware, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIVATE MIDDLE MARKET CREDIT LLC, a Delaware limited liability company (the “Company”), and amends and restates the Investment Management and Advisory Agreement, dated as of April 11, 2016, between the Company and the Investment Adviser (the “Original Investment Advisory Agreement”).

WHEREAS, the Company has elected to be regulated as a business development company under the Investment Company Act of 1940, as amended (the “Investment Company Act”);

WHEREAS, the Investment Adviser is an investment adviser that is registered with the Securities and Exchange Commission (the “SEC”) under the Investment Advisers Act of 1940, as amended (the “Advisers Act”);

WHEREAS, pursuant to the Original Investment Management and Advisory Agreement, the Company has engaged the Investment Adviser to furnish investment advisory services to the Company pursuant to the terms and conditions set forth in the Original Investment Advisory Agreement, and the Investment Adviser has served as the investment adviser to the Company; and

WHEREAS, the Company and the Investment Adviser desire to amend and restate the Original Investment Advisory Agreement in the form of this Agreement.

NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the parties hereby agree as follows:

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Company expenses borne by the Company in the ordinary course on an annual basis (excluding the Management Fee, the Incentive Fee, organizational and start-up expenses, and leverage-related expenses (including among other things, participation-related expenses)) shall not exceed an amount equal to $4,250,000, provided, however, that expenses incurred outside of the ordinary course, including litigation and similar expenses, are not subject to such cap.

To the extent that expenses to be borne by the Company pursuant to this Section 3 are paid by the Investment Adviser, the Company shall reimburse the Investment Adviser for such expenses, provided, however, that the Investment Adviser may elect, from time to time and in its

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sole discretion, to bear certain of the Company’s expenses set forth above, including organizational and other expenses.

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Any termination of this Agreement pursuant to this Section 7 shall be without penalty or other additional payment save that (i) the Company shall pay the Management Fee referred to in Appendix I prorated to the date of termination and the Final Incentive Fee Payment referred to in Appendix II; and (ii) the Company shall honor any trades entered but not settled before the date of any such termination. Sections 3, 4, 6, 7, 9 and 10 hereof shall survive the termination of this Agreement.

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If to the Investment Adviser:

▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management, L.P.

▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇

New York, New York 10282

Attention: President

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

If to the Company:

▇▇▇▇▇▇▇ ▇▇▇▇▇ Private Middle Market Credit LLC

c/o Goldman ▇▇▇▇▇ Asset Management, L.P.

▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇

New York, New York 10282

Attention: Chief Executive Officer

Fax: (▇▇▇) ▇▇▇-▇▇▇▇

or to such other address as to which the party receiving the notice shall have notified the other party in writing.

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly appointed agents.

 

	▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSET MANAGEMENT, L.P.
	By:
		Name:
		Title: Authorized Signatory
	▇▇▇▇▇▇▇ ▇▇▇▇▇ PRIVATE MIDDLE MARKET CREDIT LLC
	By:
		Name:
		Title: Authorized Signatory

 

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APPENDIX I

Management Fee

The Company will pay the Investment Adviser the Management Fee, payable quarterly in arrears, equal to 0.25% (i.e., an annual rate of 1.00%) of the average net asset value of the Company at the end of the then-current calendar quarter and the prior calendar quarter. The Management Fee for any partial quarter will be appropriately prorated.

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APPENDIX II

Incentive Fee

The amount of Incentive Fees payable in respect of such calendar year or upon termination, as applicable, shall equal the Incentive Fees calculated based on the methodology above, less the aggregate amount of any previously paid Incentive Fees, in each case determined on a cumulative basis from the Lookback Date through the end of such calendar year (or, if terminated, until the date of termination). For the avoidance of doubt the Incentive Fee payable in such calendar year shall be no less than zero.

For purposes of this Agreement,

“Contributed Capital” shall mean the aggregate amount of capital contributions that have been made by all Unitholders in respect of their Units to the Company. All distributions consisting of proceeds attributable to the repayment or disposition of any Investment to Unitholders (including for the avoidance of doubt, capital gains) will be considered a return of Contributed Capital. For the avoidance of doubt, unreturned Contributed Capital at any time shall equal aggregate Contributed Capital minus cumulative distributions (excluding, for the avoidance of doubt, any distributions of interest, dividends and fees) but shall never be less than zero.

“Cumulative Pre-Incentive Fee Net Return” for the relevant calendar year (or, if terminated, until the date of termination) shall mean (x) Pre-Incentive Fee Net Investment Income determined on a cumulative basis for the period from the Lookback Date through the end of such calendar year (or, if terminated, until the date of termination), plus (y) realized capital gains, computed net of all realized capital losses and unrealized capital depreciation determined on a cumulative basis for the period from the Lookback Date through the end of such calendar year (or, if terminated, until the date of termination). In no event will Cumulative Pre-Incentive Fee Net Return include unrealized capital

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appreciation. The Company will accrue for unrealized capital appreciation but will not pay any Incentive Fee with respect to unrealized capital appreciation. Capital appreciation would be includable in Cumulative Pre-Incentive Fee Net Return with respect to a given investment if the Company were to sell the investment and realize a capital gain.

“Hurdle Amount” shall mean an amount equal to 7.0%, per annum, compounded annually, on aggregate unreturned Contributed Capital, from the date each capital contribution is made through the date such capital has been returned.

“Lookback Date” shall mean December 17, 2024.

“Pre-Incentive Fee Net Investment Income” means, with respect to the relevant period, interest income, dividend income and any other income (including, without limitation, any accrued income that the Company has not yet received in cash and any other fees such as commitment, origination, structuring, diligence and consulting fees or other fees that the Company receives from portfolio companies) accrued during such period, minus the Company’s operating expenses accrued during such period (including, without limitation, the Management Fee, administration expenses and any interest expense and dividends paid on any issued and outstanding preferred Units in the Company, but excluding the Incentive Fee). For the avoidance of doubt, Pre-Incentive Fee Net Investment Income does not include any realized capital gains, realized capital losses or unrealized capital appreciation or depreciation.

Notwithstanding anything to the contrary herein, in no event will an amount be paid with respect to the Incentive Fee to the extent it would cause the aggregate amount of the Incentive Fee to be in excess of the amount permitted by the Advisers Act, including Section 205 thereof.

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EXHIBIT 2

 

Form of Drawdown Notice

[See attached]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[Insert Fund Name]

STRICTLY CONFIDENTIAL

 

Notice Date:		[November 20, 2024]
Notice Type:		ACTION REQUIRED CAPITAL CALL DUE [December 4, 2024]
Investor:		[ ]
Fund:		[ ]

 

Dear Investor,

In accordance with Section 2.01(b) of the Subscription Agreement of [ ] (“Fund”), you are hereby given notice of a call for capital contribution. Capitalized terms used but not defined in this Funding Notice shall have the meanings set forth in the Subscription Agreement.

 

Transaction Summary	TOTAL
Capital Call	USD$XX.XX

 

Funding Instructions
Fund: Bank: ABA #: Account #: Reference:	[ ]

 

Capital Commitment Summary

 

	Current Capital Call	Inception to date
Commitment before this notice	$[ ]	$[ ]
Capital Contributions	$[ ]	$[ ]
Remaining Commitment after this notice	$[ ]	$[ ]

 

Should you have any questions regarding the information in this correspondence, please contact your ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Professional.

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EXHIBIT 3

Form of Notice of Distributions

[See attached.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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[Insert Fund Name]

STRICTLY CONFIDENTIAL

 

Notice Date:		[November 15, 2024]
Notice Type:		NO ACTION REQUIRED – DISTRIBUTION PAYABLE
Investor:		[ ]
Fund:		[ ]

 

We are pleased to inform you that the Board of Directors of [ ](“Fund”) declared a total dividend distribution equal to an amount up to the Fund’s taxable earnings per unit, which is payable to holders of records of common unit at the close of business on [October 2, 2024.]

Distribution Details

Please find enclosed a summary of your pro rata unit of the total distribution.

 

Transaction Summary	Units Owned	Gross Distribution	Withholding Tax	Net Distribution
Income Dividend	[ ]	$[ ]	$[ ]	$[ ]

 

Your gross distribution may be adjusted by any applicable withholding tax you are subject to. Your net distribution is effective as of [November 1, 2024.] If you elected to participate in the reinvestment program, your distribution will be held and reinvested in the Fund as of [November 1, 2024.]

The Fund’s taxable income for each period is an estimate and will be determined upon filing of its tax return. Therefore, final taxable income and the taxable income earned in each period, may be different than this estimate. The amount of distributions paid by the Fund may vary from time to time. Past amounts of dividends are no guarantee of future dividend payment amounts. This distribution is from Net Investment Income.1

Breakdown of the Current Distribution

Ordinary Income: [ ]

Should you have any questions regarding the information in this correspondence, please contact your ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Professional.

We appreciate your continued support.

Sincerely,

[ ]

1 This should not be treated as an official tax designation. Investors should refer to their 1099.

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SCHEDULE A

Schedule of Directors

Name

▇▇▇▇▇ ▇▇▇▇▇▇

▇▇▇▇ ▇. ▇▇▇▇

▇▇▇▇▇ ▇. ▇▇▇▇▇

▇▇▇▇▇▇▇▇▇ (“▇▇▇▇▇▇”) ▇▇▇▇▇▇▇

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SCHEDULE B

Schedule of Officers

 

Name	Title
▇▇▇▇ ▇▇▇	Co-Chief Executive Officer and Co-President
▇▇▇▇▇ ▇▇▇▇▇▇	Co-Chief Executive Officer and Co-President
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇	Chief Financial Officer and Treasurer
▇▇▇▇ ▇▇▇▇▇	Principal Accounting Officer
▇▇▇▇▇▇ ▇▇▇	Chief Compliance Officer
▇▇▇▇▇▇▇▇ ▇▇▇▇▇	Chief Legal Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇	Chief Operating Officer
▇▇▇▇▇▇ ▇▇▇▇▇▇	Vice President
▇▇▇▇ ▇▇▇▇▇	Vice President
▇▇▇▇▇▇▇▇ ▇▇▇▇	Vice President

 

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