Term and Condition

Term and Conditions

Terms and Conditions of Use

Effective Date: June 1, 2017

Thank you for visiting this website, which has been provided to you solely for informational purposes by Business Development Corporation of America (“BDCA”) and BDCA Adviser, LLC (“BDCA Adviser”, and together with BDCA, “we” or “us”). These terms and conditions (“Terms of Use”) are a contract between users (“you”), on the one hand, and BDCA and BDCA Adviser, on the other hand, and apply to the website located as www.bdcofamerica.com, its content and any other webpages owned and operated by us that link back to, or otherwise display, these Terms of Use, including any password-protected areas (collectively, the “Website”).

By using the Website, you agree to abide by these Terms of Use. If you do not agree to abide by these Terms of Use, your sole and exclusive remedy is to discontinue using the Website. Your compliance with these Terms of Use and any Other Agreements (as defined below) is a condition to your right to access the Website. This document affects your legal rights, including limiting your damages if you sue us, so please read it carefully.

We reserve the right, in our sole discretion, to change, modify, add or remove any portion of the Website, including the Terms of Use, in whole or in part, at any time, without prior notice to you. Changes to these Terms of Use will be effective when posted. For this reason, we encourage you to visit and review this page regularly to ensure that you are familiar with the then current Terms of Use that apply to your use of the Website. The date of the last revision or update appears at the top of the Terms of Use under the title. Nothing contained in these Terms of Use is intended to modify or amend any other written agreement you may have with us (including without limitation any customer agreement, participation agreement or account agreement) (“Other Agreements”) if any, that may currently be in effect. In the event of any inconsistency between these Terms of Use and any Other Agreements, the Other Agreements will govern. To the extent these Terms of Use conflict with the terms and conditions of use relating to any password-protected area of the Website (“Other Terms of Use”), the more specific Other Terms of Use relating to such password-protected area shall control.

Acceptable Use of the Website

All materials, including but not limited to images, text, data, illustrations, designs, icons, photographs, programs, downloads, services and content (“Content”) that are part of the Website are intended solely for personal, non-commercial use. We authorize you to view and access a single copy of the Content available on the Website for your own use. You agree to only use the Website and the Content for the purposes for which it has been designed. You further agree to comply with these Terms of Use and all applicable local, state, national, and international laws, rules, and regulations. Please be advised that we may record certain usage information, such as the number and frequency of visitors to the Website.

Restrictions on Use

As a condition of your use of the Website, you agree that you will not, under any circumstances:

  • Reproduce, publish, transmit, distribute, display, modify, create derivative works from, sell or participate in any sale of or exploit in any way, in whole or in part, any Content;
  • Use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with proper functioning of the Website, including making automated use of the Website or taking any action that we deem to impose or potentially impose an unreasonable or disproportionately large load on our servers or network infrastructure;
  • Use the Website for any unlawful purpose or for the promotion of illegal activities;
  • Interfere with or disrupt or attempt to interfere with or disrupt the Website or servers or networks connected to the Website, or disobey any requirements, procedures, policies, or regulations of networks connected to the Website, including bypassing any measure we take to restrict access to the Website;
  • Use any software, technology or device to scrape, spider, or crawl the Website or harvest or manipulate data on the Website;
  • Reverse engineer, decompile, disassemble, or otherwise attempt to extract or discover the source code of the Website or any part thereof, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; or

If we believe you are using or attempting to use the Website in breach of any one or more of these restrictions, we reserve the right to suspend or terminate your ability to use the Website (or any portion thereof).

Linked Sites

The Website may provide links to websites operated by other entities. These links are provided strictly for your convenience. In addition, third-party sites may be linked to this Website, with or without our consent. We make no warranty or representation regarding, do not endorse, and do not accept any responsibility for, any websites linked to or from the Website or the information appearing thereon or any of the products or services described thereon. You acknowledge and agree that use of third party websites is strictly at your own risk.

Intellectual Property

The Website is the exclusive property of and owned by us. The Website contains and is protected by intellectual property rights, including copyrights, trademarks, logos, and service marks (whether registered or not, and wherever in the world those rights may exist) owned by us or third parties that have licensed their materials or provided services to us. Access to the Website does not confer any license under any of our or any third party’s intellectual property rights or otherwise authorize you to use any trademark, logo, service mark, copyright, or other intellectual property, except as explicitly provided herein or permitted under applicable law.

No Offers or Advice/Forward-Looking Statements/Historical Information

THE CONTENT PROVIDED ON THE WEBSITE IS FOR INFORMATIONAL PURPOSES ONLY. THIS IS NEITHER AN OFFER TO SELL NOR A SOLICITATION OF AN OFFER TO BUY SECURITIES IN BDCA. AN OFFERING OR SOLICITATION IS MADE ONLY THROUGH A FINAL PRIVATE PLACEMENT MEMORANDUM, SUBSCRIPTION AGREEMENT, PROSPECTUS OR OTHER RELATED DOCUMENT WITH RESPECT TO A PARTICULAR INVESTMENT OPPORTUNITY (EACH, AN “OFFERING DOCUMENT” AND COLLECTIVELY, THE “OFFERING DOCUMENTS”) AND WILL BE SUBJECT TO THE TERMS AND CONDITIONS IN THE OFFERING DOCUMENTS, INCLUDING THE QUALIFICATIONS NECESSARY TO BECOME AN INVESTOR. THE LITERATURE ON THE WEBSITE MUST BE PRECEDED OR ACCOMPANIED BY THE CURRENT OFFERING DOCUMENTS, OUR ANNUAL REPORT AND THE MOST RECENT FORM 10-K OR 10-Q, AS APPLICABLE. AS SUCH, A COPY OF THE CURRENT OFFERING DOCUMENTS MUST BE MADE AVAILABLE TO YOU IN CONNECTION WITH ANY OFFERING. YOU SHOULD READ THE CURRENT OFFERING DOCUMENTS AND THE MOST RECENT FORM 10-K OR 10-Q, AS APPLICABLE, IN ORDER TO MORE FULLY UNDERSTAND THE IMPLICATIONS AND RISKS OF ANY INVESTMENT IN SECURITIES IN BDCA. AN INVESTMENT IN BDCA SHOULD BE MADE ONLY AFTER A CAREFUL REVIEW OF THE CURRENT OFFERING DOCUMENTS AND THE MOST RECENT FORM 10-K OR 10-Q, AS APPLICABLE. No offering is made to New York residents except by a prospectus filed with the Department of Law of the State of New York. Neither the Attorney-General of the State of New York nor any other state or federal regulator has passed on or endorsed the merits of any offering or any securities in BDCA or confirmed the adequacy or accuracy of the prospectus. Any representation to the contrary is unlawful. All information contained on this Website is qualified in its entirety by the terms of the current Offering Documents.

Nothing contained herein constitutes professional, tax, accounting, legal, ERISA or financial advice nor does any information contained herein constitute a comprehensive or complete statement of the matters discussed or the law relating thereto. Any decision to invest or take any other action with respect to the securities or investments discussed in this commentary may involve risks not discussed herein and no such decisions should be made based on the information contained herein. It should not be assumed that any securities or investments discussed in this commentary will increase in value.

An investment in BDCA is subject to significant risks that are described in more detail in the current Offering Documents and the most recent Form 10-K or 10-Q, as applicable, including the loss of principal amount invested. Investments in BDCA are not suitable for all investors and are not obligations of or guaranteed by BDCA or any of its affiliates. The investments are not bank deposits and are not insured by the Federal Deposit Insurance Corporation or any other entity. You are solely responsible for evaluating the risks and merits regarding use of the Website and should obtain relevant and specific professional advice before making any investment decision.

Certain information contained on the Website (including financial information) has been obtained from published sources. Such information has not been independently verified by BDCA, BDCA Adviser, Benefit Street Partners L.L.C. (“BSP”) or their affiliates, and BDCA, BDCA Adviser, BSP and their affiliates make no representations concerning and do not assume responsibility for the accuracy of such information. Except where otherwise indicated on the Website, the information provided on the Website is based on matters as they exist as of the date of the Website’s publication and not as of any future date.

Certain information on the Website may contain forward-looking statements that are subject to risks and uncertainties. Actual outcomes and results could differ materially from those suggested on the Website due to the impact of many factors beyond the control of BDCA and members of our management team, including those listed in the “Risk Factors” section of our filings with the SEC. Any such forward-looking statements are made pursuant to the safe harbor provisions available under applicable securities laws and we assume no obligation to update or revise any such forward looking statements. We have based these forward-looking statements on its current expectations and projections about future events. We believe that the expectations and assumptions that have been made with respect to these forward-looking statements are reasonable. However, such expectations and assumptions may prove to be incorrect. A number of factors could lead to results that may differ from those expressed or implied by the forward-looking statements. Given this level of uncertainty, investors should not place undue reliance on any forward-looking statements.

Any transactions described on the Website as having been engaged in by us are included for illustrative purposes only and are not necessarily reflective of overall results of any of our businesses. Past performance is not indicative of future results; no representation is being made that any investment or transaction will or is likely to achieve profits or losses similar to those achieved in the past, or that significant losses will be avoided. This commentary has not been reviewed or approved by any regulatory authority and has been prepared without regard to the individual financial circumstances or objectives of persons who may receive it. The appropriateness of a particular investment or strategy will depend on an investor’s individual circumstances and objectives. No representation is being made as to the suitability of any investment.

An affiliate of BSP acquired BDCA Adviser on November 1, 2016. Notwithstanding the acquisition, BDCA Adviser will remain the adviser of BDCA. The financial metrics, performance and portfolio characteristics shown for BDCA for periods prior to this date were achieved by a completely different investment committee for BDCA Adviser. Following the acquisition, all of the members of the investment committee with respect to BDCA changed and while nearly all employees have remained associated with BDCA Adviser as employees of BSP, none of these persons remain on the investment committee following the acquisition. As a result, there is no guarantee that the current BDCA investment committee would have made similar investments or achieved similar financial metrics, performance or portfolio characteristics as those shown on the Website.

Compliance with Applicable Law

Unless otherwise expressly set forth herein, we make no representation that materials on the Website are appropriate or available for use in any particular location. If it is illegal or prohibited in your country of origin to access or use the Website, then you agree not to do so. Those who choose to access the Website do so on their own initiative and are responsible for compliance with local laws.

ERISA Considerations

The information provided on the Website (including any separate documents that may be accessed through the Website) is not directed at any investor or category of investors and is provided solely as general information about our products and services and to otherwise provide general investment education. No information contained on the Website should be regarded as a suggestion to engage in or refrain from any investment-related course of action as none of BDCA, BDCA Adviser or BSP or any of their affiliates is undertaking to provide investment advice, act as an adviser to any plan or entity subject to the Employee Retirement Income Security Act of 1974, as amended, individual retirement account or individual retirement annuity, or give advice in a fiduciary capacity with respect to the materials presented on the Website. If you are an individual retirement investor, contact your financial advisor or other fiduciary unrelated to BDCA, BDCA Adviser or BSP about whether any given investment idea, strategy, product or service described on the Website may be appropriate for your circumstances.

Password and Security Notification

Certain additional information and services available on the Website may be accessible to you only if you have been provided with a username and password (“Password User”). Use of such additional information and services shall be subject to additional terms and conditions. You may not attempt to access any password-protected areas of the Website without authorization. If you have been issued a password for the Website, you agree that we have granted you limited access to specific files pertaining to investments relevant to you, and you agree not to attempt to access other computer files. All information that we provide to Password Users is confidential and intended solely for the information of its intended recipient and/or such recipient’s financial, legal or tax advisors, provided that such advisors agree not to disclose any information that is confidential. You, as a Password User, are solely responsible for (1) maintaining the confidentiality of the password and user ID and (2) all activities that occur under your user ID. If, in the process of obtaining a user ID and password, you provide us with any information that is untrue, inaccurate, not current, or incomplete, or if we have reason to suspect that such information is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your user ID and password and refuse any and all current or future use of the Website (or any portion thereof). The Password User shall immediately notify us of any loss or theft of the password, or if the confidentiality of the password has otherwise been compromised in any way. We will not be responsible or liable for any loss, expense or damage arising in any way from use of the password and user ID and/or the accessing of information or materials therewith.

Disclaimer and Indemnity

The Website and the information and materials on the Website are provided “as is” and without warranties or representations of any kind either expressed or implied and we and our affiliates disclaim all warranties, expressed or implied, including but not limited to, implied warranties of merchantability and fitness for a particular purpose. We do not warrant the accuracy, completeness, reliability, security, availability at all times or timeliness of any information on the Website or that the Website will operate “error free.” In no event shall we or our affiliates, or any of our or their respective partners, stockholders, members, managers, officers, directors, employees, agents, funds and such funds’ limited partners (collectively, the “BDCA Parties”), be responsible for any damages, liabilities or injury, including indirect, incidental, special, punitive, multiple, consequential or other damages, however caused or arising out of your use of (or inability to use) the Website. If your use of the Website gives rise to any third party complaint, charge, claim, loss, expense, damage, cost, liability or demand, including attorneys’ fees (“Claim”), against you or any BDCA Party, you agree to (i) indemnify and hold harmless the BDCA Parties with respect to any such Claim, (ii) release the BDCA Parties from any such Claim and (iii) waive all laws that may limit the efficacy of such release.

Limitation of Liability

To the maximum extent permitted by law, we disclaim all liability arising out of your use of the Website, even if we have been advised of the possibility of the damages, liability or injury that you suffer, including any damages, defect, interruption, delay in operation, computer virus, line failure or other computer malfunction.

Notice of Copyright Infringement

The Digital Millennium Copyright Act of 1998 provides recourse for copyright owners who believe that material posted on Internet sites infringes their rights under U.S. copyright law. If you believe in good faith that items, information or other materials appearing on the Website infringe your copyright, please send us a notice containing the following information:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
  • Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activities and that is to be removed or access to which is to be disabled, and information sufficient to permit us to locate the material;
  • Contact information for the notifying party, including name, address, telephone number, and email address;
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; and
  • Please submit this notice to us at info@bdca.com.

Termination

We may at any time, terminate these Terms of Use and your access to the Website, including access to your user ID and password: (1) if we believe you have breached or attempted to breach any provision of these Terms of Use; (2) if we are required to do so by law; (3) if we are transitioning to no longer providing the Website to users in the country or state in which you reside or from which you use the Website; (4) the provision of the Website to you by us is, in our opinion, no longer commercially viable; or (5) in our sole discretion, at any time and for any other reason. Your continued use of the Website following such termination may result in your liability for conversion, misappropriation, trespass to chattels and all other claims and causes, regardless of the identity of claimant or injured party, arising from or relating to your continued use of the Website. Any suspected fraudulent, abusive, or illegal activity that may be grounds for termination of your use of the Website, may be referred to appropriate law enforcement authorities.

When these Terms of Use are terminated, any of the legal rights, obligations, and liabilities that by their nature should continue shall survive such termination.

Miscellaneous

Governing Law. These Terms of Use shall be governed by the laws of the State of New York, without giving effect to its conflict of laws provisions. Any dispute relating to these Terms of Use shall be brought solely in the state or federal courts located in New York and you agree that such courts shall have jurisdiction over you in connection with any such dispute.

Term for Cause of Action. Regardless of any statute or law to the contrary, you must commence any cause of action you may have with respect to your use of the Website within one (1) year after the claim or cause of action arises.

Severability and Waiver. If, for any reason, a court of competent jurisdiction finds any provision in these Terms of Use to be unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of these Terms of Use, and the remainder of these Terms of Use shall continue in full force and effect. Our failure to act with respect to a breach of these Terms of Use by you or others does not constitute a waiver and will not limit our rights with respect to such breach or any subsequent breaches.

Arbitration. By using the Website, you agree that we, at our sole discretion, to the maximum extent permitted by applicable law, may require you to submit any disputes arising from the use of the Website, related services or these Terms of Use, including disputes arising from or concerning their interpretation, violation, nullity, invalidity, non-performance or termination, as well as disputes about filling gaps in this contract or its adaptation to newly arisen circumstances, to final and binding arbitration under the International Rules of Arbitration of the American Arbitration Association (the “Rules”), by one or more arbitrators appointed in accordance with the said Rules and to be held in the State of New York. Notwithstanding these Rules, however, such proceeding shall be governed by the laws of the State of New York. Arbitration costs and reasonable documented attorneys’ costs of both parties shall be borne by the non-prevailing party.

Entire Agreement. Other than with respect to Other Agreements and Other Terms of Use, these Terms of Use constitute the entire agreement between you and us regarding the subject matter hereof and govern your use of the Website, superseding any prior agreement between you and us on this subject.

Contact. If you have any questions or comments or need to provide us notice of any sort related to these Terms of Use, you may contact us in the following ways:

Mailing Address:

9 west 57th Street

Suite 4920

New York, NY 10019

Email Address: info@bdca.com

Phone Number: 212-588-6770