Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period: (i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have; (ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and (iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently. (b) Notwithstanding any provision of this Agreement to the contrary, (i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and (ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 4 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Solar Capital Ltd.), Limited Liability Company Agreement (Solar Senior Capital Ltd.)
Defaulting Members. (a) Upon the failure of any Member (a “"Defaulting Member”") to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ days written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ Member's election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that and
(iii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 3 contracts
Samples: Limited Liability Company Agreement (Golub Capital BDC 3, Inc.), Limited Liability Company Agreement (Golub Capital Investment Corp), Limited Liability Company Agreement (Golub Capital BDC, Inc.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment the Drawdown within ten (10) the 10 calendar days after written notice from any other Member the Due Date (the “Default Date”) that such payment is overdue), each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) cause the Defaulting Member to (A) not share in any Profits or related net proceeds realized by the Company on any disposition of an Investment occurring after the Default Date (regardless of when the Investment was made) and (B) continue to share in any Losses realized by the Company on any disposition of an Investment in which the Defaulting Member participated, in each case until such time as the Defaulting Member funds the unpaid portion of the Drawdown;
(ii) collect such unpaid portion of the Drawdown (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) 30 days’ written notice (which period may shall commence during on the ten-day notice period provided above), Due Date) and provided that the overdue Drawdown payment has not been mademade and no legal action for collection is pending, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one terms of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequentlythis Agreement.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) , a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, except that the Company any distributions to which a Member otherwise would be entitled shall have the right, but not the obligation, be applied to apply cure any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault.
Appears in 3 contracts
Samples: Limited Liability Company Operating Agreement, Operating Agreement (Medley Capital Corp), Operating Agreement (Sierra Income Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-ten (10) day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay have to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon collect such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member)portion; and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day ten (10)-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(iii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Business Development Corp of America), Securities Purchase Agreement (Horizon Technology Finance Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten the time period specified in the related Capital Call Notice (10the Business Day next succeeding the tenth (10th) days after written notice from any other Member (Business Day immediately following the expiration of such time period being the “Default Date”) that such payment is overduein accordance with Section 3.1(a), each of the other Membersnon-Defaulting Member, in its sole discretion, shall have the right right, without notice to the Defaulting Member, to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay contribute such unpaid portion to the Company, which amount shall be deemed a Temporary Advance and returned to the non-defaulting Member pursuant to Section 3.2 hereof;
(iii) charge interest on the unpaid balance of any overdue Capital Commitment at a rate equal to the Default Rate, from the date such balance was due and payable through the date full payment for such Capital Commitment is actually made; and/or
(iv) exercise all rights of a secured creditor at law or in equity, including the right to sell all of the interest in the Company held by the Defaulting Member to the Company or another Person (including, without limitation, an existing Member) at a price equal to the Capital Account of the Defaulting Member adjusted to reflect the Value of the Company as determined as of the date of the last valuation pursuant to Section 9.4 (and be required to assume the Defaulting Member’s unpaid portion remaining Capital Commitment), with the proceeds from such sale to be applied in the following order: first, to the payment of the capital call (andexpenses of the sale; second, upon such paymentto the payment of the expenses of the Company resulting from the default, a corresponding portion including court costs and penalties, if any, and reasonable attorneys’ fees and costs; third, to the payment of all amounts due from the Defaulting Member to the Company, including the amount of the Defaulting Member’s Capital Contribution required pursuant to the related Capital Call Notice and interest in due thereon pursuant to Section 3.3(a)(iii); fourth, to the Defaulting Member, an amount up to fifty percent (50%) of the amount the Defaulting Member previously contributed to the Company shall be transferred less any distributions previously made to such the Defaulting Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during and thereafter, any remainder to the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Company; Except as set forth below, the non-defaulting Members’ Defaulting Member’s election to pursue any one of such remedies shall not be deemed to preclude the Company or such Members non-Defaulting Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently. For the avoidance of doubt, if applicable, a Member shall not be deemed to be a Defaulting Member until the resolution of any dispute as to whether the Member failed to pay in full any portion of such Member’s Capital Commitment within the time period specified in the related Capital Call Notice in accordance with Section 3.1(a).
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured;
(iii) a default may be cured by a Defaulting Member within ten days by contribution to the Company of an amount equal to the sum of the unpaid balance of any overdue Capital Commitment plus interest accrued therein at the Default Rate; provided, however, that and
(iv) the Company shall have not make new Investments after the rightDefault Date until the default is cured, but not the obligation, except as permitted pursuant to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companyclauses (ii) through (viii) of Valid Company Purposes.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (New Mountain Finance Corp), Limited Liability Company Agreement (New Mountain Finance Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten Contribution by the last day of the five-day (10or other longer) days after period specified in the written notice from the Administrative Agent (or any other Member Person with the power and authority to call Capital Contributions) pursuant to Section 3.02 and such failure is continuing on the second day following demand by the Administrative Agent for cure of such default (the “Default Date”) such that such payment is remains overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day specified period:
(i) collect Collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon Upon thirty (30) days’ written notice (which period may commence during the ten-day demand notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8XII; and
(iii) Upon thirty (30) days’ written notice (which period may commence during the demand notice period provided above) and if such failure has not been cured in full within such thirty-day period, compel the Defaulting Member to transfer all of a portion of its interest in whole or in part subject to the following:
(A) If the non-Defaulting Member notifies the Defaulting Member to transfer all of a part of its interest, such Defaulting Member shall do so within sixty (60) days after the expiration of such thirty-day period; provided, however, that the non-Defaulting Member must consent, in its sole discretion, to such transfer and such transfer must otherwise be in accordance with Section 8.01.
(B) Upon any failure of the Defaulting Member, for any reason, to transfer all or part of its interests that are required to be sold within such sixty (60) day period, the non-Defaulting Member may purchase such interest or direct the transfer of such interest to a third party or, subject to applicable law, to an Affiliate of the non-Defaulting Member or the Company. The price for such transfer shall be not less than the minimum cash purchase price for the Defaulting Member’s interest in the Company as determined by an independent valuation firm selected by the non-Defaulting Member for a hypothetical sale of such interest to an unaffiliated third party willing to purchase such interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Defaulting Member’s interest at such minimum price or a higher price, then the non-Defaulting Member may direct the transfer of the Defaulting Member’s interest at a price and subject to such terms and conditions as the non-Defaulting Member deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member of a promissory note issued by the purchaser thereof.
(C) To the extent any amounts are owed by a Defaulting Member to the non- Defaulting Member with respect to a Default Loan (as defined below), any purchase price that would otherwise be payable to the Defaulting Member under this Section 3.08(a)(iii)(C) shall instead first be paid to the non-Defaulting Member pursuant to the terms of Section 3.08(b)(iii) until each such Default Loan (and accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member. Except as set forth below, the non-defaulting Members’ Defaulting Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that cured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be credited against the Percentage Interest of the Defaulting Member so as to reduce the remaining amount of the default;
(ii) the Company shall have not seek Capital Contributions from Members after the rightDefault Date until the default is cured except for the purposes of (i) making protective investments (including making protective advances and/or exchanges), but not which may require capital commitments and ongoing obligations of the obligationCompany or any Subsidiary, (ii) making, at the Members’ election, Capital Contributions to apply avoid or cure any borrowing base deficiency, default, event of default, potential termination event or termination event relating to any indebtedness incurred by the Company or a Subsidiary and repaying such distributions towards indebtedness, or (iii) paying Company expenses and such other costs and expenses as set forth herein; and
(iii) the non-Defaulting Member, in its sole discretion, may elect to fund all or any portion of the defaulted amount otherwise on behalf of the Defaulting Member or recall its own Capital Contribution with notice to the Defaulting Member, if applicable. The Members agree and acknowledge that any amount funded by the non-Defaulting Member pursuant to this Section 3.08 shall be treated as a loan from the non-Defaulting Member to the Defaulting Member (a “Default Loan”), the proceeds of which are used by the Defaulting Member to make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such Defaulting Member. A Default Loan shall (A) bear interest from the date of such funding until repaid by the Defaulting Member at a rate equal to the lower of 15% per annum or the maximum rate permitted by applicable law, (B) be pre-payable by the Defaulting Member at any time and (C) be fully recourse to the Defaulting Member. Until such time that any Default Loan (including any accrued interest thereon) has been fully repaid, (x) any amounts that would otherwise be distributable to the Defaulting Member under Section 6.01 shall instead be distributed to the non-Defaulting Member and (y) any purchase price payable to the Defaulting Member in connection with any sale of its interests in the Company shall first be payable to the non-Defaulting Members until the repayment in full of the Default Loan (including any accrued interest thereon) proportionate to the amount of Default Loan so extended by the non-Defaulting Member to such Defaulting Member. Any amounts distributed to the non-Defaulting Member pursuant to the previous sentence shall be treated as for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member notwithstanding the Company’s distribution of such amounts to the non-Defaulting Member and any amounts distributed or payable to the non-Defaulting Member pursuant to the previous sentence shall reduce the amounts owed to the non-Defaulting Member under the related Default Loan, first as to interest and then as to principal.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Great Elm Capital Corp.), Limited Liability Company Agreement (Great Elm Capital Corp.)
Defaulting Members. A Committed Member that fails to make a Capital Contribution as prescribed in Section 5.3 (aa “Defaulted Contribution”) Upon and does not cure such failure within five business days after notice from the Company of such failure of any Member (a “Defaulting Member”) shall be in default of this Agreement but shall remain fully obligated to pay make such Capital Contribution to the Company, shall cease to have the rights (but shall remain subject to the obligations, as applicable) set forth in full any portion Sections 7.4, 7.6 and 7.8, and shall be subject to all such other rights and remedies as the Company may have against such Committed Member, including rights and remedies arising from its breach of such Member’s Capital Commitment within ten (10) days after written notice from any other this Agreement and rights and remedies the Company may have at law or in equity. Furthermore, if the Defaulting Member is a Committed Member (the “Default Date”) that such payment is overdue, each other than a member of the other MembersWarburg Pincus Group), in its sole discretionat the election of the Company, shall have the right to pursue Company may take any one or more of the following remedies on behalf remedial actions (to the extent not mutually exclusive with any other remedy described in this Section 5.4):
(a) cause such Defaulting Member to (i) sell such Member’s Preferred Units at a price equal to 75% of such Member’s Capital Contributions that were made in exchange for Preferred Units made prior to the default (net of expenses, Losses and prior distributions) to the Company or a designee or designees of the Company and (ii) forfeit such Member’s Profits Units to the Company or a designee or designees of the Company, and at the Company’s expense, if unless such Member cures such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy 30 days after notice from the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.failure;
(b) Notwithstanding any provision of this Agreement to the contrary,
charge interest on such Member’s Defaulted Contributions at (i) a Defaulting Member shall remain fully liable to rate that is the creditors lower of (A) 14% per annum, compounded quarterly or (B) the Company to the extent provided by maximum rate permitted under applicable law as if such default had not occurred; and
or (ii) such other lower rate determined by the Board;
(c) loan such Member an amount equal to such Member’s Defaulted Contributions and charge interest on such amount at a rate that is the lower of (i) 14% per annum, compounded quarterly or (ii) the maximum rate permitted under applicable law;
(d) reduce such Defaulting Member’s Remaining Commitment (including the Remaining Commitment related to the Defaulted Contribution) to zero and permit each Committed Member that is not a Defaulting Member to increase its Additional Commitment by its pro rata portion of such Defaulting Member’s Remaining Commitment (including the Remaining Commitment related to the Defaulted Contribution) pursuant to this Section 5.4(d). In such event, the Company shall notify each Committed Member who is not a Defaulting Member of the aggregate amount of the Remaining Commitment (including all Defaulted Contributions) of such Defaulting Member (the “Defaulted Commitments”). Each non- Defaulting Committed Member will then have the right to elect to fund a pro-rata percentage of all Defaulted Commitments based on the relative Remaining Commitments of the non- Defaulting Committed Members less any amounts required to be funded by such Committed Members pursuant to then outstanding Capital Calls. To exercise the right to fund Defaulted Commitments, a non-Defaulting Committed Member must notify the Company in writing within five days after the receipt of notice from the Company that such non-Defaulting Committed Member elects to fund its pro-rata percentage of the Defaulted Commitments. Such election by a non-Defaulting Committed Member will automatically increase its Remaining Commitment on a dollar-for-dollar basis by the amount of its pro rata percentage of such Defaulted Commitments. If there are any Defaulted Commitments remaining after such five day notice period, the Warburg Pincus Group may elect to increase its Remaining Commitment on a dollar-for-dollar basis by the amount of such remaining Defaulted Commitments. The delivery of a notice of election under this Section 5.4(d) by a non-Defaulting Committed Member shall constitute an irrevocable commitment to fund such Defaulted Commitments. Unless otherwise determined by the Board, the Defaulted Commitment shall not include the amount of any unexercised option to increase such Defaulting Member’s Additional Commitment pursuant to Section 5.2(a) and a Defaulting Member shall not be entitled have no further right, if any, to distributions made after the Default Date until the default is curedelect to increase such Defaulted Member’s Additional Commitment pursuant to Section 5.2(a) upon becoming a Defaulting Member; provided, however, that or
(e) pursue any other rights and remedies the Company shall may have the right, but not the obligation, to apply any against such distributions towards the amount otherwise payable by the Defaulting Member to the CompanyMember.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Laredo Petroleum - Dallas, Inc.), Limited Liability Company Agreement (Laredo Petroleum, Inc.)
Defaulting Members. (a) (x) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each the other Member (so long as it is not a Defaulting Member) (a “Non-Defaulting Member”), in its sole discretion, shall have the right to pursue one or more of the other following remedies on behalf of the Company if such failure has not been cured in full within such ten-day period; provided, that, in the case of CGMSF, CGMSF shall be considered a “Defaulting Member” for purposes of this Agreement automatically if CGMSF fails to make such payment within ten (10) days following the date upon which such payment was due by all Members, and the “Default Date” for CGMSF shall be considered the 11th day following the date upon which such payment was due, or (y) on the date that a Member becomes a Pledge Defaulting Member (the “Pledge Default Date”), the Pledge Non-Defaulting Member, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice to the Defaulting Member or the Pledge Defaulting Member, as applicable (which period may commence during the ten-ten (10) day notice period provided aboveabove in the case of the Defaulting Member), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 89 as long as such action is not prohibited by Section 9.2(b); and
(iii) upon thirty (30) days’ written notice to the Defaulting Member or the Pledge Defaulting Member, as applicable (which period may commence during the ten (10) day notice period provided above in the case of the Defaulting Member) and if such failure has not been cured in full within such thirty (30) day period, compel the Defaulting Member or the Pledge Defaulting Member, as applicable, to sell or transfer all or a portion of its Membership Interest in whole or in part subject to the following:
(A) If the other Member notifies the Defaulting Member or the Pledge Defaulting Member, as applicable, to sell or transfer all or a part of its Membership Interest, such Defaulting Member or Pledge Defaulting Member, as applicable, shall do so within sixty (60) days after the expiration of such thirty (30) day period.
(B) Upon any failure of the Defaulting Member or the Pledge Defaulting Member, as applicable, under any circumstances, to sell or transfer all of its Membership Interests that are required to be sold within such sixty (60) day period, the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, may purchase such Membership Interest or sell or transfer such Membership Interest to a third party or, subject to applicable law, to an Affiliate of a Member or the Company. The price for such sale or transfer shall be the lower of (x) the cost of such Membership Interests, and (y) the fair market value of such Membership Interests, as determined by an investment bank selected by the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, for a hypothetical sale of such Membership Interest to an unaffiliated third party willing to purchase such Membership Interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Membership Interest of the Defaulting Member or the Pledge Defaulting Member, as applicable, at such price or a higher price, then the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, may direct the sale or transfer of the Membership Interest of the Defaulting Member or the Pledge Defaulting Member, as applicable, at a price and subject to such terms and conditions as it deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member or the Pledge Defaulting Member, as applicable, of a promissory note issued by the purchaser thereof.
(C) To the extent any amounts are owed by a Defaulting Member to a non-Defaulting Member or by a Pledge Defaulting Member to a Pledge Non-Defaulting Member, as applicable, with respect to a Default Loan, any purchase price that would otherwise be payable to the Defaulting Member or the Pledge Defaulting Member, as applicable, under this Section 4.3(a)(iii) shall instead first be paid to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, pursuant to the terms of Section 4.3(b)(iii) hereof, until each such Default Loan (and any accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member or the Pledge Defaulting Member, as applicable. Except as set forth below, the nonelection of the Non-defaulting Members’ election Defaulting Member or the Pledge Non-Defaulting Member, as applicable, to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law or a Pledge Defaulting Member, as if such default had not occurred; and
(ii) a Defaulting Member applicable, shall not be entitled to distributions made after the Default Date or the Pledge Default Date, as applicable, until the default is cured; providedcured and any such distributions to which such Defaulting Member or Pledge Defaulting Member, howeveras applicable, that would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member or the Pledge Defaulting Member, as applicable, so as to reduce the remaining amount of the default;
(ii) the Company shall have not make new Investments after the rightDefault Date or the Pledge Default Date, but not as applicable, until the obligationdefault is cured except as permitted pursuant to clauses (ii) through (vi) of Valid Company Purposes; and
(iii) the Non-Defaulting Member, in its or their sole discretion, may fund all or any portion of the defaulted amount on behalf of the Defaulting Member with notice to apply the Board and to the other Members. The Members agree and acknowledge that any amount so funded by the Non-Defaulting Member shall be treated as a loan from the Non-Defaulting Member to the Defaulting Member (a “Default Loan”), the proceeds of which are used by the Defaulting Member to make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such distributions towards Defaulting Member. A Default Loan shall (A) bear interest from the amount otherwise date of such funding until repaid by the Defaulting Member or the Pledge Defaulting Member, as applicable, at a rate equal to 20% per annum, (B) be pre-payable by the Defaulting Member or the Pledge Defaulting Member, as applicable, at any time and (C) be fully recourse to the Defaulting Member or the Pledge Defaulting Member, as applicable. Until such time that there is no outstanding balance owed under any Default Loan (including any accrued interest thereon), (x) any amounts that would otherwise be distributable to the Defaulting Member or the Pledge Defaulting Member, as applicable, under Section 6.1(b) hereof shall instead be distributed to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, and (y) any purchase price payable to the Defaulting Member or the Pledge Non-Defaulting Member, as applicable, in connection with any sale of its or their respective Membership Interests in the Company shall first be paid to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, and in each case of (x) and (y), as repayment of the Default Loan(s) until the repayment in full of such Default Loan(s) (including any accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the Non-Defaulting Member to such Defaulting Member or by the Pledge Non-Defaulting Member to such Pledge Defaulting Member, as applicable. Any amounts distributed to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, pursuant to the previous sentence shall be treated for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member or the Pledge Defaulting Member, as applicable, notwithstanding the Company’s distribution of such amounts to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, and any amounts distributed or payable to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, pursuant to the previous sentence shall reduce the amounts owed to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, under the related Default Loan, first as to interest and then as to principal.
(iv) In the event that (I) the Collateral Agent calls capital from a Member pursuant to the Pledge Agreement, (II) one Member pays in full all of such capital call (the “Pledge Non-Defaulting Member”) and (III) the other Member either (x) fails to pay in full all or any portion of a concurrent call of capital by the Collateral Agent or (y) was not required by the Collateral Agent to make a concurrent Capital Contribution (in either case, a “Pledge Defaulting Member”), then at the sole election of the Pledge Non-Defaulting Member, the Pledge Agreement Shortfall Amount shall be treated as a Default Loan. Notwithstanding the foregoing:
(A) if the Pledge Non-Defaulting Member does not elect to treat such called capital as a Default Loan within five (5) days of paying the Pledge Agreement Shortfall Amount, then additional Membership Interests in the Company will be issued to the Pledge Non-Defaulting Member such that each Member’s percentage ownership of the Company is equal to the aggregate Capital Contributions made by such Member divided by the aggregate Capital Contributions made by both Members; and
(B) if the Pledge Non-Defaulting Member is Credit Partners, and Credit Partners does not elect to treat such called capital as a Default Loan within five (5) days of paying the Pledge Agreement Shortfall Amount, then:
(1) (x) the interest earned on the Mezzanine Loan shall be added to the principal amount of such Mezzanine Loan (such principal, the “PIK Principal”), (y) notwithstanding the maturity date provided in the Mezzanine Loan Agreement, the Mezzanine Loan shall be payable on the date that is six (6) months after the Final Maturity Date under the LSA, and (z) at the election of Credit Partners, CGMSF will irrevocably cancel the PIK Principal and such cancellation will be deemed to be a Capital Contribution by CGMSF for all purposes hereunder (it being understood that CGMSF shall execute any and all documentation in connection with such deemed Capital Contribution). In the event the PIK Principal is canceled pursuant to this Section 4.3(b)(iv)(B), additional Membership Interests in the Company will be issued to CGMSF such that each Member’s percentage ownership of the Company is equal to the aggregate Capital Contributions made by such Member divided by the aggregate Capital Contributions made by both Members;
(2) notwithstanding Section 7.2 hereof or any other provision in this Agreement to the contrary, Credit Partners shall have the right to elect, designate or appoint one (1) additional Board Member, upon notice to all Board Members; and
(3) notwithstanding Section 7.4 hereof or any other provision in this Agreement to the contrary, (i) any act or decision done or made by the Board shall require the approval of a majority of Board Members and (ii) a quorum of the Board shall require at least four (4) Board Members as long as at least three (3) Board Members are present that were elected, designated or appointed by Credit Partners; provided that, without limiting Section 7.3 hereof, all Board Members shall be given notice of any meeting of the Board (including the agenda of such meeting which shall be prepared in good faith and with reasonable efforts to describe all actions to be taken by the Board at such meeting); and
(4) notwithstanding Section 7.6 hereof or any other provision in this Agreement to the contrary, Credit Partners shall have the right to elect, designate or appoint one (1) additional Investment Committee Member, upon notice to all Investment Committee Members; and
(5) notwithstanding Section 7.8 hereof or any other provision in this Agreement to the contrary, (i) any act or decision done or made by the Investment Committee shall require the approval of a majority of Investment Committee Members and (ii) a quorum of the Investment Committee shall require at least three (3) Investment Committee Members as long as at least two (2) Investment Committee Members are present that were elected, designated or appointed by Credit Partners provided that, without limiting Section 7.7 hereof, all Investment Committee Members shall be given notice of any meeting of the Investment Committee (including the agenda of such meeting, which shall be prepared in good faith and with reasonable efforts to describe all actions to be taken by the Board at such meeting).
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Carlyle GMS Finance, Inc.)
Defaulting Members. (a) Upon If at any time a Member shall fail to make a required Capital Contribution to the failure of any Member Company when due under a Funding Notice (a “Defaulting Member”), a Majority Vote of Tier One Parallel Investment Vehicles, acting under the Voting Agreement, may subject such Defaulting Member to certain adverse consequences, including, but not limited to: (i) interest accruing on the amount of such default and any costs of collection associated therewith commencing on the date such Capital Contribution was due at the lesser of (A) the rate of twenty percent (20%) per annum and (B) the maximum rate permitted by applicable law (such default amount, together with any associated collection costs, including legal fees and expenses, plus any other liability or obligation incurred by the Company in connection with such default (but specifically excluding punitive and consequential damages) plus interest being the “Default Amount”); and (ii) causing distributions that would otherwise be made to pay the Defaulting Member to be credited against the Default Amount in full a manner to be determined pursuant to the Voting Agreement (which such determination shall be based on the determination of a Majority Vote of Tier One Parallel Investment Vehicles). In addition, while any of the Default Amount remains outstanding, the Defaulting Member shall forfeit its right to vote on matters on which such Defaulting Member or its representative(s) on the Board of Directors would otherwise be entitled to vote and if the Company is a Tier One Parallel Investment Vehicle, the Company shall forfeit such portion of its right to vote under the Voting Agreement attributable to such Defaulting Member’s Consortium Percentage Interest.
(b) If a Defaulting Member shall fail to make a required Capital Contribution as and when due and, except in the case of a Capital Contribution called in connection with the consummation of the transactions contemplated by the Restructuring Proposal, such failure continues for a period of three (3) Business Days following notice of such default, the Tier One Parallel Investment Vehicles (acting in accordance with the Voting Agreement) also shall be entitled, but not required, to (i) reduce the Defaulting Member’s Capital Commitment within ten (10) days after written notice from Account without taking into account any other Member (increase or decrease in the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf value of the Company, in an amount up to fifty percent (50%) of the Capital Account of such Defaulting Member, which amount (A) shall be allocated to the other non-Defaulting Members pro rata in accordance with their relative Company Percentage Interests (as determined with regard to the applicable Funding Notices), and at (B) shall increase the amount to which such non-Defaulting Members are entitled pursuant to Section 6.1 hereof and upon liquidation of the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding reduce all or any portion of the Defaulting Member’s interest in Invested Capital and/or Sharing Percentages, as determined pursuant to the Company Voting Agreement (which such determination shall be transferred based on the determination of a Majority Vote of Tier One Parallel Investment Vehicles), which reduced portion of Invested Capital and/or Sharing Percentages shall increase the Invested Capital and/or Sharing Percentages of the non-Defaulting Members pro rata in accordance with their relative Company Percentage Interests (as determined with regard to such Memberthe applicable Funding Notices); and
, (iii) upon thirty (30) days’ written notice transfer such Defaulting Member’s Interest to any Person (which period Persons may commence during be third parties, Members or Parallel Vehicle Members) at a price equal to fifty percent (50%) of such Defaulting Member’s Capital Account or such other price determined pursuant to the ten-day notice period provided aboveVoting Agreement (which such determination shall be based on the determination of a Majority Vote of Tier One Parallel Investment Vehicles) (with any cash proceeds payable to the Defaulting Member pursuant to such transfer being applied pursuant to the decision made under the Voting Agreement (which such decision shall be based on the decision of a Majority Vote of Tier One Parallel Investment Vehicles) in full or partial satisfaction of such Defaulting Member’s outstanding Default Amount) and/or (iv) reduce all or any portion of the Defaulting Member’s Available Commitment, in each case as determined pursuant to the Voting Agreement (which such determination shall be based on the determination of a Majority Vote of Tier One Parallel Investment Vehicles). If all or any portion of a Defaulting Member’s Available Commitment is reduced pursuant to clause (iv) of this Section 3.6(b), and provided that a Majority Vote of Tier One Parallel Investment Vehicles, acting under the overdue payment has Voting Agreement, may offer any Person the right (x) to subscribe for such Defaulting Member’s reduced Available Commitment and, if such Person is not been madea Non-Managing Member, dissolve and wind down be admitted as a member of the Company in accordance with Article 8Sections 3.3(a) and 10.4 hereof or (y) to subscribe for an amount equal to such Defaulting Member’s reduced Available Commitment in a Parallel Investment Vehicle and, if such Person is not a Parallel Vehicle Member, be admitted as a member of such Parallel Investment Vehicle in accordance with the terms of the applicable Parallel Vehicle Agreement. Except as set forth belowThe Members agree that if a Parallel Vehicle Member elects to acquire a Defaulting Member’s Interest in accordance with this Section 3.6, the Managing Member may, in its discretion, offer to transfer a portion of the Investment to the Parallel Vehicle Member’s respective Parallel Investment Vehicle in lieu of such Parallel Vehicle Member acquiring an Interest in the Company.
(c) A Majority Vote of Tier One Parallel Investment Vehicles, acting under the Voting Agreement, may require the non-defaulting Members’ election Defaulting Members to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement make Capital Contributions to the contrary,
(i) Company to make up any shortfall in Capital Contributions resulting from the failure of a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedfund its required amount; provided, however, that no Member shall be obligated as a result thereof to contribute an amount in excess of such Member’s Available Commitment. If the non-Defaulting Members are required to make additional Capital Contributions pursuant to this Section 3.6(c), the Managing Member shall deliver to such Members an additional Funding Notice in accordance with Section 3.1(c) hereof.
(d) Each Member hereby consents to the application to it of the remedies provided in this Section 3.6 as specified penalties or consequences permitted by the Act. No right, power or remedy conferred upon the Tier One Parallel Investment Vehicles (acting in accordance with the Voting Agreement) in this Section 3.6 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 3.6 or now or hereafter available at law or in equity or by statute or otherwise, all of which are retained. No course of dealing between the Tier One Parallel Investment Vehicles or the Managing Member, in each case, acting in accordance with the Voting Agreement and any Defaulting Member and no delay in exercising any right, power or remedy conferred in this Section 3.6 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. The provisions of this Section 3.6 are not intended to be for the benefit of any creditor or other Person (other than a Member) to whom any debts, liabilities or obligations are owed by, or who otherwise has any claim against, the Company or any of the Members; and no such creditor or other Person shall have the right, but not the obligation, to apply obtain any right under any such distributions towards provision or by reason of any such liability, obligation or otherwise against the amount otherwise payable by Company or any of the Defaulting Member to the CompanyMembers.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Brookfield Retail Holdings LLC), Limited Liability Company Agreement (Brookfield Retail Holdings LLC)
Defaulting Members. (a) Upon If at any time a Member shall fail to make a required Capital Contribution to the failure of any Member Company when due under a Funding Notice (a “Defaulting Member”), then the Managing Member, in its reasonable discretion, may subject such Defaulting Member to certain adverse consequences, including, but not limited to: (i) to pay in full any portion interest accruing on the amount of such default and any costs of collection associated therewith commencing on the date such Capital Contribution was due at the lesser of (A) the rate of twenty percent (20%) per annum and (B) the maximum rate permitted by applicable law (such default amount, together with any associated collection costs, including legal fees and expenses, plus any other liability or obligation incurred by the Company in connection with such default (but specifically excluding punitive and consequential damages) plus interest being the “Default Amount”); and (ii) causing distributions that would otherwise be made to the Defaulting Member to be credited against the Default Amount in a manner to be determined by the Managing Member. In addition, while any of the Default Amount remains outstanding, the Defaulting Member shall forfeit its right to vote on matters on which such Defaulting Member would otherwise be entitled to vote.
(b) If a Defaulting Member shall fail to make a required Capital Contribution as and when due and, such failure continues for a period of three (3) Business Days following notice of such default, then the Managing Member, in its reasonable discretion, also shall be entitled, but not required, to (i) reduce the Defaulting Member’s Capital Commitment within ten (10) days after written notice from Account without taking into account any other Member (increase or decrease in the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf value of the Company, in an amount up to fifty percent (50%) of the Capital Account of such Defaulting Member, which amount (A) shall be allocated to the other non-Defaulting Members pro rata in accordance with their relative Sharing Percentages (as determined with regard to the applicable Funding Notices), and at (B) shall increase the amount to which such non-Defaulting Members are entitled pursuant to Section 6.1 hereof and upon liquidation of the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding reduce all or any portion of the Defaulting Member’s interest Sharing Percentages, as determined in the Company reasonable discretion of the Managing Member, which reduced portion of Sharing Percentages shall be transferred increase the Sharing Percentages of the non-Defaulting Members pro rata in accordance with their relative Sharing Percentages (as determined with regard to such Memberthe applicable Funding Notices); and
, and/or (iii) upon thirty (30) days’ written notice transfer such Defaulting Member’s Interest to any Person (which period Persons may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting be third parties or Members’ election ) at a price equal to pursue any one fifty percent (50%) of such remedies shall not be deemed to preclude Defaulting Member’s Capital Account or such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequentlyprice determined by the Managing Member in its reasonable discretion.
(bc) Notwithstanding Each Member hereby consents to the application to it of the remedies provided in this Section 3.3 as specified penalties or consequences permitted by the Act. No right, power or remedy conferred upon the Managing Member in this Section 3.3 shall be exclusive, and each such right, power or remedy shall be cumulative and in addition to every other right, power or remedy whether conferred in this Section 3.3 or now or hereafter available at law or in equity or by statute or otherwise, all of which are retained. No course of dealing between the Managing Member and any provision Defaulting Member and no delay in exercising any right, power or remedy conferred in this Section 3.3 or now or hereafter existing at law or in equity or by statute or otherwise shall operate as a waiver or otherwise prejudice any such right, power or remedy. The provisions of this Agreement Section 3.3 are not intended to be for the contrary,
benefit of any creditor or other Person (iother than a Member) a Defaulting Member shall remain fully liable to whom any debts, liabilities or obligations are owed by, or who otherwise has any claim against, the creditors Company or any of the Company to the extent provided Members; and no such creditor or other Person shall obtain any right under any such provision or by law as if reason of any such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; providedliability, however, that obligation or otherwise against the Company shall have or any of the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the CompanyMembers.
Appears in 2 contracts
Samples: Limited Liability Company Agreement (Brookfield Asset Management Inc.), Limited Liability Company Agreement (Brookfield Asset Management Inc.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, either (x) dissolve and wind down the Company in accordance with Article 8, or (y) in the event the defaulting Member is West, Solar may acquire West’s membership interest in the Company at the then current Value (and be required to assume West’s remaining Capital Commitment). Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 2 contracts
Samples: Limited Liability Company Agreement, Limited Liability Company Agreement (Solar Capital Ltd.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days on or before the tenth Business Day after written notice from any other Member (the “Default applicable Call Due Date”) that such payment is overdue, each the Board of the other MembersManagers, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day periodFund:
(a) elect to charge the Defaulting Member interest at the Default Rate on the amount due from the Call Due Date until the earlier of (i) collect the date on which such unpaid portion (payment is received by the Fund from the Defaulting Member, and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company date, if any, on which the Defaulting Member’s Membership Interest is sold pursuant to Section 3.3(c);
(b) cause the Fund to cease making distributions to the Defaulting Member, and apply any distributions that would otherwise be made to the Defaulting Member to the unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in Capital Commitment, or distribute such distributions that would otherwise be made to the Company shall be transferred Defaulting Member to such Member); andthe other Members;
(iiic) upon thirty sell to any Person (30including any other Member or any of its Affiliates) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that Defaulting Member’s Membership Interest for consideration at the overdue payment has not been made, dissolve and wind down the Company valuation most recently approved in accordance with Article 8Section 10.5, such consideration to be paid to the Defaulting Member; or
(d) exercise and/or pursue any other legal remedy the Fund may have. Except as set forth below, the non-defaulting MembersThe Board of Managers’ election to pursue any one of such remedies shall not be deemed to preclude such Members the Board of Managers from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) . Notwithstanding any provision of this Agreement to the contrary,
(i) , a Defaulting Member shall remain fully liable to the creditors of the Company Fund to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Capitala Finance Corp.)
Defaulting Members. (a) (x) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Unfunded Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each the other Member (so long as it is not a Defaulting Member) (a “Non-Defaulting Member”), in its sole discretion, shall have the right to pursue one or more of the other following remedies on behalf of the Company if such failure has not been cured in full within such ten-day period; provided, that, in the case of CSL, CSL shall be considered a “Defaulting Member” for purposes of this Agreement automatically if CSL fails to make such payment within ten (10) days following the date upon which such payment was due by all Members, and the “Default Date” for CSL shall be considered the 11th day following the date upon which such payment was due, or (y) on the date that a Member becomes a Pledge Defaulting Member (the “Pledge Default Date”), the Pledge Non-Defaulting Member, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice to the Defaulting Member or the Pledge Defaulting Member, as applicable (which period may commence during the ten-ten (10) day notice period provided aboveabove in the case of the Defaulting Member), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 89 as long as such action is not prohibited by Section 9.2(b); and
(iii) upon thirty (30) days’ written notice to the Defaulting Member or the Pledge Defaulting Member, as applicable (which period may commence during the ten (10) day notice period provided above in the case of the Defaulting Member) and if such failure has not been cured in full within such thirty (30) day period, compel the Defaulting Member or the Pledge Defaulting Member, as applicable, to sell or transfer all or a portion of its Membership Interest in whole or in part subject to the following:
(A) If the other Member notifies the Defaulting Member or the Pledge Defaulting Member, as applicable, to sell or transfer all or a part of its Membership Interest, such Defaulting Member or Pledge Defaulting Member, as applicable, shall do so within sixty (60) days after the expiration of such thirty (30) day period.
(B) Upon any failure of the Defaulting Member or the Pledge Defaulting Member, as applicable, under any circumstances, to sell or transfer all of its Membership Interests that are required to be sold within such sixty (60) day period, the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, may purchase such Membership Interest or sell or transfer such Membership Interest to a third party or, subject to applicable law, to an Affiliate of a Member or the Company. The price for such sale or transfer shall be the lower of (x) the cost of such Membership Interests, and (y) the fair market value of such Membership Interests, as determined by an investment bank selected by the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, for a hypothetical sale of such Membership Interest to an unaffiliated third party willing to purchase such Membership Interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Membership Interest of the Defaulting Member or the Pledge Defaulting Member, as applicable, at such price or a higher price, then the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, may direct the sale or transfer of the Membership Interest of the Defaulting Member or the Pledge Defaulting Member, as applicable, at a price and subject to such terms and conditions as it deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member or the Pledge Defaulting Member, as applicable, of a promissory note issued by the purchaser thereof.
(C) To the extent any amounts are owed by a Defaulting Member to a non-Defaulting Member or by a Pledge Defaulting Member to a Pledge Non-Defaulting Member, as applicable, with respect to a Default Loan, any purchase price that would otherwise be payable to the Defaulting Member or the Pledge Defaulting Member, as applicable, under this Section 4.3(a)(iii) shall instead first be paid to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, pursuant to the terms of Section 4.3(b)(iii) hereof, until each such Default Loan (and any accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member or the Pledge Defaulting Member, as applicable. Except as set forth below, the nonelection of the Non-defaulting Members’ election Defaulting Member or the Pledge Non-Defaulting Member, as applicable, to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law or a Pledge Defaulting Member, as if such default had not occurred; and
(ii) a Defaulting Member applicable, shall not be entitled to distributions made after the Default Date or the Pledge Default Date, as applicable, until the default is cured; providedcured and any such distributions to which such Defaulting Member or Pledge Defaulting Member, howeveras applicable, that would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member or the Pledge Defaulting Member, as applicable, so as to reduce the remaining amount of the default;
(ii) the Company shall have not make new Investments after the rightDefault Date or the Pledge Default Date, but not as applicable, until the obligationdefault is cured except as permitted pursuant to clauses (ii) through (vi) of Valid Company Purposes; and
(iii) the Non-Defaulting Member, in its or their sole discretion, may fund all or any portion of the defaulted amount on behalf of the Defaulting Member with notice to apply the Board and to the other Members. The Members agree and acknowledge that any amount so funded by the Non-Defaulting Member shall be treated as a loan from the Non-Defaulting Member to the Defaulting Member (a “Default Loan”), the proceeds of which are used by the Defaulting Member to make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such distributions towards Defaulting Member. A Default Loan shall (A) bear interest from the amount otherwise date of such funding until repaid by the Defaulting Member or the Pledge Defaulting Member, as applicable, at a rate equal to 20% per annum, (B) be pre-payable by the Defaulting Member or the Pledge Defaulting Member, as applicable, at any time and (C) be fully recourse to the Defaulting Member or the Pledge Defaulting Member, as applicable. Until such time that there is no outstanding balance owed under any Default Loan (including any accrued interest thereon), (x) any amounts that would otherwise be distributable to the Defaulting Member or the Pledge Defaulting Member, as applicable, under Section 6.1(b) hereof shall instead be distributed to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, and (y) any purchase price payable to the Defaulting Member or the Pledge Non-Defaulting Member, as applicable, in connection with any sale of its or their respective Membership Interests in the Company shall first be paid to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, and in each case of (x) and (y), as repayment of the Default Loan(s) until the repayment in full of such Default Loan(s) (including any accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the Non-Defaulting Member to such Defaulting Member or by the Pledge Non-Defaulting Member to such Pledge Defaulting Member, as applicable. Any amounts distributed to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, pursuant to the previous sentence shall be treated for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member or the Pledge Defaulting Member, as applicable, notwithstanding the Company’s distribution of such amounts to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, and any amounts distributed or payable to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, pursuant to the previous sentence shall reduce the amounts owed to the Non-Defaulting Member or the Pledge Non-Defaulting Member, as applicable, under the related Default Loan, first as to interest and then as to principal.
(iv) In the event that (I) the Collateral Agent calls capital from a Member pursuant to the Pledge Agreement, (II) one Member pays in full all of such capital call (the “Pledge Non-Defaulting Member”) and (III) the other Member either (x) fails to pay in full all or any portion of a concurrent call of capital by the Collateral Agent or (y) was not required by the Collateral Agent to make a concurrent Capital Contribution (in either case, a “Pledge Defaulting Member”), then at the sole election of the Pledge Non-Defaulting Member, the Pledge Agreement Shortfall Amount shall be treated as a Default Loan. Notwithstanding the foregoing:
(A) if the Pledge Non-Defaulting Member does not elect to treat such called capital as a Default Loan within five (5) days of paying the Pledge Agreement Shortfall Amount, then additional Membership Interests in the Company will be issued to the Pledge Non-Defaulting Member such that each Member’s percentage ownership of the Company is equal to the aggregate Capital Contributions made by such Member divided by the aggregate Capital Contributions made by both Members; and
(B) if the Pledge Non-Defaulting Member is Credit Partners, and Credit Partners does not elect to treat such called capital as a Default Loan within five (5) days of paying the Pledge Agreement Shortfall Amount, then:
(1) (x) the interest earned on the Mezzanine Loan shall be added to the principal amount of such Mezzanine Loan (such principal, the “PIK Principal”), (y) notwithstanding the maturity date provided in the Mezzanine Loan Agreement, the Mezzanine Loan shall be payable on the date that is six (6) months after the Final Maturity Date under the LSA, and (z) at the election of Credit Partners, CSL will irrevocably cancel the PIK Principal and such cancellation will be deemed to be a Capital Contribution by CSL for all purposes hereunder (it being understood that CSL shall execute any and all documentation in connection with such deemed Capital Contribution). In the event the PIK Principal is canceled pursuant to this Section 4.3(b)(iv)(B), additional Membership Interests in the Company will be issued to CSL such that each Member’s percentage ownership of the Company is equal to the aggregate Capital Contributions made by such Member divided by the aggregate Capital Contributions made by both Members;
(2) notwithstanding Section 7.2 hereof or any other provision in this Agreement to the contrary, Credit Partners shall have the right to elect, designate or appoint one (1) additional Board Member, upon notice to all Board Members; and
(3) notwithstanding Section 7.4 hereof or any other provision in this Agreement to the contrary, (i) any act or decision done or made by the Board shall require the approval of a majority of Board Members and (ii) a quorum of the Board shall require at least four (4) Board Members as long as at least three (3) Board Members are present that were elected, designated or appointed by Credit Partners; provided that, without limiting Section 7.3 hereof, all Board Members shall be given notice of any meeting of the Board (including the agenda of such meeting which shall be prepared in good faith and with reasonable efforts to describe all actions to be taken by the Board at such meeting); and
(4) notwithstanding Section 7.6 hereof or any other provision in this Agreement to the contrary, Credit Partners shall have the right to elect, designate or appoint one (1) additional Investment Committee Member, upon notice to all Investment Committee Members; and
(5) notwithstanding Section 7.8 hereof or any other provision in this Agreement to the contrary, (i) any act or decision done or made by the Investment Committee shall require the approval of a majority of Investment Committee Members and (ii) a quorum of the Investment Committee shall require at least three (3) Investment Committee Members as long as at least two (2) Investment Committee Members are present that were elected, designated or appointed by Credit Partners provided that, without limiting Section 7.7 hereof, all Investment Committee Members shall be given notice of any meeting of the Investment Committee (including the agenda of such meeting, which shall be prepared in good faith and with reasonable efforts to describe all actions to be taken by the Board at such meeting).
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carlyle Secured Lending, Inc.)
Defaulting Members. (a) Upon If a Non-Managing Member fails to pay any amount which it is required to pay to the failure of any Company on or before the date when such amount is due and payable, such Non-Managing Member shall be deemed to be in default hereunder (a “Defaulting Member”) ), and written notice of default shall be given to such Non-Managing Member by the Managing Members. The Company shall be entitled to enforce the obligations of each Non-Managing Member to make the contributions to capital specified in this Agreement, and the Company shall have all remedies available at law or in equity in the event any such contribution is not so made. In the event of any legal proceedings relating to a default by a Defaulting Member, such Defaulting Member shall pay all costs and expenses incurred by the Company, including attorneys’ fees, if the Company shall prevail. Further, such Defaulting Member shall be obligated to pay the Company interest with respect to the amount of any capital contribution not 6 made when required by this Agreement, with such interest commencing on the date such contribution is initially due and ending on the date such contribution is made to the Company. Such interest shall be calculated on the basis of the then current reference rate announced by Xxxxx Fargo Bank, N.A., or by any other U.S. commercial bank with capital in full any portion excess of such Member’s Capital Commitment Five Hundred Million Dollars ($500,000,000) selected by the Managing Members, plus two percent (2%) per annum.
(b) In addition to the remedies provided under Paragraph 5.4(a), if the Defaulting Member does not remedy a default in the payment of a required contribution within ten (10) business days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the receipt of the notice specified in Paragraph 5.4(a): (i) the Defaulting Member shall no longer have the right (if any) to vote on any Company matter, and (ii) if the Managing Members so elect, the other Members, in its sole discretion, Members shall have the right option to pursue one or more pay the remaining capital contributions of the following remedies on behalf Defaulting Member in accordance with any procedures and in such proportions as may be established by the Managing Members. In such event, such Defaulting Member shall be deemed to have withdrawn from the Company and to have forfeited its interest in the Net Income and Net Losses of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Such Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after receive only the Default Date until amount of its Capital Account at the default is cured; providedtime of the def xxxx, howeverwith such amount payable, that the Company shall have the right, but not the obligationwithout interest, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to upon the dissolution of the Company.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (E Trade Group Inc)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such the Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such the payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at Company if the Company’s expense, if such failure has not been cured in full within such the ten-day period:
: (i) collect such the unpaid portion (and all attorneys’ fees and other costs incident theretoto the collection) by exercising and/or or pursuing any legal remedy the Company may have;
; and (ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8IX. Except as set forth belowin Section 4.03(b), the non-defaulting Members’ Member’s election to pursue any one of such those remedies shall not be deemed to preclude such Members the Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
, (i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such the default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that cured and any distributions to which the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.13
Appears in 1 contract
Samples: Limited Liability Company Agreement (Newtek Business Services Corp.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days on or before the tenth Business Day after written notice from any other Member (the “Default applicable Call Due Date”) that such payment is overdue, each the Board of the other MembersManagers, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day periodFund:
(a) elect to charge the Defaulting Member interest at the Default Rate on the amount due from the Call Due Date until the earlier of (i) collect the date on which such unpaid portion (payment is received by the Fund from the Defaulting Member, and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company date, if any, on which the Defaulting Member’s Membership Interest is sold pursuant to Section 3.3(c);
(b) cause the Fund to cease making distributions to the Defaulting Member, and apply any distributions that would otherwise be made to the Defaulting Member to the unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in Capital Commitment, or distribute such distributions that would otherwise be made to the Company shall be transferred Defaulting Member to such Member); andthe other Members;
(iiic) upon thirty sell to any Person (30including any other Member or any of its Affiliates) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that Defaulting Member’s Membership Interest for consideration at the overdue payment has not been made, dissolve and wind down the Company valuation most recently approved in accordance with Article 8Section 10.5, such consideration to be paid to the Defaulting Member; or
(d) exercise and/or pursue any other legal remedy the Fund may have. Except as set forth below, the non-defaulting MembersThe Board of Managers’ election to pursue any one of such remedies shall not be deemed to preclude such Members the Board of Managers from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) . Notwithstanding any provision of this Agreement to the contrary,
(i) , a Defaulting Member shall remain fully liable to the creditors of the Company Fund to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Capitala Finance Corp.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all reasonable and documented attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ days written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, either (x) immediately terminate the Reinvestment Period and dissolve and wind down the Company in accordance with Article 89, or (y) acquire the Defaulting Member’s membership interest in the Company at the then current Value in accordance with Section 9.3(e) (and be required to assume such Member’s remaining Capital Commitment). Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable for its Capital Commitment to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (SLR Investment Corp.)
Defaulting Members. (a) Upon the failure of If any Member (a “"Defaulting Member”") fails ------------------ ----------------- to pay in make full payment of any portion of such Member’s any additional Capital Commitment within ten (10) days after written notice from Contribution called by the Managing Member pursuant to Section 3.5(c), the Managing Member -------------- may undertake any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day periodsteps:
(ia) collect such unpaid portion (The Managing Member may pursue and enforce all attorneys’ fees rights and other costs incident thereto) by exercising and/or pursuing any legal remedy remedies the Company may have;
(ii) pay to the Company the have against such Defaulting Member’s unpaid portion of the capital call (and, upon such payment, including a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred lawsuit to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that collect the overdue payment has not been madeamount, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election interest calculated thereon at a rate equal to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently12%.
(b) Notwithstanding any provision of this Agreement anything herein to the contrary,
, from and after any date on which a Defaulting Member's fails to make any additional Capital Contribution pursuant to Section 3.5(c), if such Defaulting -------------- Member continues to hold Units, (i) a such Defaulting Member shall remain fully liable have no right to receive any distributions from the Company until such time as the amount of distributions that would have been made to the creditors Defaulting Member shall have been reduced by an amount equal to the sum of (A) an amount equal to 18% per annum, compounded annually, of the Company unpaid additional Capital Contribution and (B) an amount equal to the extent provided by law as if unpaid Capital Contribution, and such default had not occurred; and
reduced amount shall have been distributed to the Investors other than the Defaulting Member pursuant to Section 5.2(b), (ii) a -------------- such Defaulting Member Member's Capital Account shall not be entitled credited with such Defaulting Member's share of items of income and gain allocated to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member pursuant to the Company.Article V, and (iii) such Defaulting Member's --------- Capital Account shall continue to be debited for such Defaulting Member's share of items of loss, deduction and expense allocated to such Defaulting Member pursuant to Article V. ---------
Appears in 1 contract
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(iii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 1 contract
Samples: Securities Purchase Agreement (Fifth Street Finance Corp.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such the Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such the payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at Company if the Company’s expense, if such failure has not been cured in full within such the ten-day period:
(i) collect such the unpaid portion (and all attorneys’ fees and other costs incident theretoto the collection) by exercising and/or or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8VIII. Except as set forth belowin section 3.03(b), the non-defaulting Members’ Member’s election to pursue any one of such those remedies shall not be deemed to preclude such Members the Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such the default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any distributions to which the Defaulting Member would otherwise have been entitled if the default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(iii) the Company shall not make new Investments after the Default Date until the default is cured, except for those Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet, or letter of intent, or definitive legal documents under which less than all advances have been made) on or before the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the CompanyDefault Date.
Appears in 1 contract
Samples: Limited Liability Company Agreement (THL Credit, Inc.)
Defaulting Members. (a) Upon the failure of If any Member (a “"Defaulting Member”") fails to pay in ------------------ ----------------- make full payment of any portion of such Member’s any additional Capital Commitment within ten (10) days after written notice from Contribution called by the Managing Member pursuant to Section 3.5(c), the Managing Member may -------------- undertake any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day periodsteps:
(ia) collect such unpaid portion (The Managing Member may pursue and enforce all attorneys’ fees rights and other costs incident thereto) by exercising and/or pursuing any legal remedy remedies the Company may have;
(ii) pay to the Company the have against such Defaulting Member’s unpaid portion of the capital call (and, upon such payment, including a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred lawsuit to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that collect the overdue payment has not been madeamount, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election interest calculated thereon at a rate equal to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently12%.
(b) Notwithstanding any provision of this Agreement anything herein to the contrary,
, from and after any date on which a Defaulting Member's fails to make any additional Capital Contribution pursuant to Section 3.5(c), if such Defaulting Member continues -------------- to hold Units, (i) a such Defaulting Member shall remain fully liable have no right to receive any distributions from the Company until such time as the amount of distributions that would have been made to the creditors Defaulting Member shall have been reduced by an amount equal to the sum of (A) an amount equal to 18% per annum, compounded annually, of the Company unpaid additional Capital Contribution and (B) an amount equal to the extent provided by law as if unpaid Capital Contribution, and such default had not occurred; and
reduced amount shall have been distributed to the Investors other than the Defaulting Member pursuant to Section 5.2(b), (ii) a such Defaulting Member Member's Capital Account -------------- shall not be entitled credited with such Defaulting Member's share of items of income and gain allocated to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member pursuant to the Company.Article V, and (iii) --------- such Defaulting Member's Capital Account shall continue to be debited for such Defaulting Member's share of items of loss, deduction and expense allocated to such Defaulting Member pursuant to Article V. --------- 11
Appears in 1 contract
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) business days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-business day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;; and
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call upon ten (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii10) upon thirty (30) business days’ written notice (which period may commence during the ten-business day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; andoccurred and shall remain subject to Section 2.6;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(iii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 1 contract
Samples: Limited Liability Company Agreement (PennantPark Floating Rate Capital Ltd.)
Defaulting Members. (a) Upon the failure of If any Member (a “Defaulting Member”) fails to pay in make full payment when due (a “Payment Default”) of any portion of its Capital Commitment or any other payment required under this Agreement or such Member’s Capital Commitment Subscription Agreement for its Units in the Company (the amount of such defaulted payments in the aggregate, including all accrued and unpaid interest thereon, and together with any other unpaid amounts that are due and owing by such Member thereunder, the “Defaulted Amounts”) and such Payment Default is not cured within ten (10) business days after written notice to such Defaulting Member from any other the Managing Member (with respect to such Payment Default, the “Default Date”) that such payment is overdue, each of the other Members, Managing Member in its sole discretion, on its own behalf or on behalf of the Company, may (but shall not be obligated to) pursue and enforce any and all rights and remedies the Company and/or the Managing Member may have the right against such Defaulting Member at law, in equity or pursuant to pursue any other provision of this Agreement or otherwise with respect thereto, including taking any one or more of the following remedies on behalf actions in any order of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day periodpriority:
(i) collect such unpaid portion (and In addition to all attorneys’ fees and other costs incident thereto) Defaulted Amounts owed by exercising and/or pursuing any legal remedy the Defaulting Member, the Company may have;(A) accrue and collect interest computed on all Defaulted Amounts and any amount due to the Company or the Managing Member pursuant to this Section 14.3 at an annual compounded rate of ten percentage (10%) points per annum (or if limited by applicable law, the highest rate per annum permitted by applicable law), and/or (B) require reimbursement from the Defaulting Member for all out-of-pocket expenses (including for attorneys’ fees) incurred by the Company and the Managing Member in connection with the collection and other efforts in respect of the Defaulted Amounts (which payment of such interest and expense reimbursement shall not be treated as a Capital Contribution by the Defaulting Member). The Managing Member may require the payment of such interest and expense reimbursement whether or not it exercises any rights or remedies.
(ii) pay So long as any Defaulted Amounts remain unpaid, the Company may withhold all distributions (or portions thereof) that would otherwise be made to the Defaulting Member pursuant to this Agreement and apply such withheld distributions to offset any Defaulted Amounts owing by the Defaulting Member to the Company or the Managing Member under this Agreement or any other agreement.
(iii) The Managing Member may assist the Defaulting Member in finding a buyer for all or any part of the Defaulting Member’s unpaid Units in the Company; provided that the Managing Member shall not have any obligation to contact any particular Member or other Person with regard to such sale and shall have no liability to any Member, including the Defaulting Member, if no such buyer is found.
(iv) The Company and the Managing Member may pursue a lawsuit to collect the Defaulted Amounts due to the Company and the Managing Member including amounts owed pursuant to Section 14.3(a)(i) and/or 14.3(a)(ix). The Managing Member may require the payment of such interest and expense reimbursement whether or not it exercises any rights or remedies.
(v) Subject to Section 14.3(a)(vii), the Managing Member may cause the Defaulting Member to forfeit up to fifty percent (50%) of its Units in the Company without payment or other consideration therefor, and the Managing Member shall offer to transfer, for no consideration, such forfeited Units of the Defaulting Member to the other Members (other than any Defaulting Members) pro rata according to their respective Capital Commitments or the forfeited Units may be cancelled. The Managing Member shall provide a notice to each Member (other than Defaulting Members) setting forth the amount of the forfeited Units of the Defaulting Member offered to such Member. In the event that any Member does not elect to accept its pro rata share of the forfeited Units of a Defaulting Member, such forfeited Units will be offered again by the Managing Member according to the provisions of this Section 14.3(a)(v) as if such forfeited Units had not previously been offered until either all of such Units are acquired or no Member wishes to accept any further portion.
(vi) Subject to Section 14.3(a)(vii), to the extent a Defaulting Member’s Units are not forfeited and reallocated pursuant to Section 14.3(a)(v) (including the remaining portion of such Defaulting Member’s Units not subject to forfeiture), the capital call Managing Member may offer to the other Members (and, upon such payment, a corresponding other than any Defaulting Members) the portion of the Defaulting Member’s Units that are not forfeited and reallocated pursuant to Section 14.3(a)(v) at the applicable NAV per Unit on the effective date such Defaulting Member’s interest is sold. If the remaining portion of the Defaulting Member’s Units are not purchased in the manner set forth herein, the Managing Member in its sole discretion may offer the remaining Units to a third party or parties on terms not more favorable than originally offered to the Members, in which case such third party or parties shall, as a condition of purchasing such interest, become a party to this Agreement.
(vii) The Managing Member may reduce (and such reduction shall be deemed to be effective as of the actual date of the Payment Default, without giving effect to any applicable cure period, or as of such later date as is determined by the Managing Member) any portion of such Defaulting Member’s Capital Commitment (which has not been assumed by another Partner or third party) to the amount of the Capital Contributions (which have not been acquired by another Partner or third party) made by such Defaulting Member and the aggregate Capital Commitments of the Company shall be transferred to such Member)commensurately reduced; and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment no such reduction in a Defaulting Member’s Capital Contribution shall be effective as against a Lender that has not been made, dissolve and wind down advanced funds to the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one on account of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequentlyCapital Commitment.
(b) No consent of any Member shall be required as a condition precedent to any Transfer of a Defaulting Member’s Units, or the admission of a transferee as a substitute Member with respect to such Units, pursuant to this Section 14.3.
(c) The Managing Member shall handle the procedures of making the offers set forth in this Section 14.3 and shall in its discretion set time limits for acceptance. In connection with any purchase of Units pursuant to this Section 14.3, upon the Managing Member’s request, the Defaulting Member shall make customary representations and warranties to each purchaser and will execute a customary transfer agreement.
(d) The failure of any Member to fulfill an obligation hereunder shall not relieve any other Member of any of its obligations under this Agreement.
(e) Notwithstanding the notice requirements of Section 4.2, additional Capital Contributions may be called by the Managing Member on five (5) business days’ notice following a Member failing to fund any provision of amount due pursuant to a Capital Call Notice. In addition, the Managing Member is authorized to apply amounts that would otherwise be distributed to a Member to satisfy such Member’s obligation to make a Capital Contribution pursuant to Section 4.2 or any other payment required under this Agreement. Such amounts applied shall be deemed distributed to such Member by the Company and then contributed by such Member to the Company as Capital Contributions or paid by such Partner to the Company, as applicable.
(f) Notwithstanding anything in this Agreement to the contrary,
(i) contrary and unless otherwise determined by the Managing Member in its sole discretion, during any period of time that a Member is a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if Member, such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after receive any of the Default Date until reports, or information contained therein, or any other information regarding the Company or any investment, other than (i) a statement of such Defaulting Member’s closing Capital Account balance as and when provided by the Managing Member to the other Members, (ii) the Defaulting Member’s Schedule K-1s, as and when provided by the Managing Member to the other Members, and (iii) any additional reports and information that are required by applicable law.
(g) Each Member hereby acknowledges that certain provisions of this Agreement (including this Section 14.3) provide for specific consequences in the event of a breach of this Agreement by a Partner. Each Partner hereby agrees that the default provisions of this Agreement are fair and reasonable and, in light of the difficulty of determining actual damages, represent a prior agreement among the Partners as to appropriate liquidated damages. Without limiting the general effect of the preceding sentence, the Partners hereby specifically acknowledge and agree that the enforceability of this Section 14.3 is cured; providedessential to the stability of the Company as an organization and to the ability of the Company to effectively serve its purpose and conduct its business operations.
(h) Each Member hereby specifically agrees that, howeverin the event such Member becomes a Defaulting Member, regardless of the reason therefor, such Member shall not be entitled to claim that the Company shall have or any of the rightother Members are precluded, but not on the obligationbasis of any fiduciary or other duty arising in respect of such Member’s status as such or other equitable claim or theory, to apply from seeking any such distributions towards of the amount otherwise payable by the Defaulting Member to the Companypenalties or other remedies permitted under this Agreement or applicable law.
Appears in 1 contract
Samples: Limited Liability Company Agreement
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, either (x) dissolve and wind down the Company in accordance with Article 8, or (y) in the event the defaulting Member is a Voya Member, Solar may acquire such Voya Member’s membership interest in the Company and any outstanding Junior Loans at the then current Value (and be required to assume such Voya Member’s remaining Capital Commitment). Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Solar Capital Ltd.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, either (x) dissolve and wind down the Company in accordance with Article 8, or (y) in the event the defaulting Member is a Voya Member, Solar Senior may acquire such Voya Member’s membership interest in the Company and any outstanding Junior Loans at the then current Value (and be required to assume such Voya Member’s remaining Capital Commitment). Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Solar Senior Capital Ltd.)
Defaulting Members. (a) Upon Notwithstanding Section 6.4, in the failure event of any Member (a “Defaulting Member”) Funding Shortfall, the Company may, in addition to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each or instead of the other Membersremedies in Section 6.4, in its sole discretion, shall have the right to pursue exercise any one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day periodrights or remedies:
(ia) collect Taking such unpaid portion action as the Managers (and all attorneys’ fees and other costs incident thereto) voting without consideration of any Managers designated by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid ) deem appropriate to obtain payment by the Defaulting Member of that portion of its agreed contribution that is in default, together with interest thereon at the capital call (andInterest Rate, upon from the date that such paymentcontribution was due until the date that such contribution is made, a corresponding portion at the cost and expense of the Defaulting Member’s interest ;
(b) Permitting those Members that desire to do so to advance that portion of the contribution that is in default, with the Company result that, the sum thus advanced shall be transferred deemed to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, be a loan from the non-defaulting Members’ election Members to pursue any one the Defaulting Member and a contribution of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement sum to the contrary,
(i) a Company by the Defaulting Member shall remain fully liable pursuant to this Article 6; provided the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member expressly consents in writing to such loan(s). Notwithstanding such deemed contribution, for the avoidance of doubt, the Defaulting Members shall not continue to be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company considered hereunder as a “Defaulting Member”. The loan shall have the rightfollowing terms: (A) the principal balance of such loan and all accrued unpaid interest thereon shall be due and payable in whole within thirty days after written demand therefor has been given to the Defaulting Member by the non-defaulting Members providing the loan; (B) the loan shall bear interest at the Interest Rate, but not from the obligationdate that the loan was made until the date that such loan, together with all interest accrued thereon, is repaid to apply any such the non-defaulting Members providing the loan; (C) all distributions towards from the amount Company that would otherwise payable be made to the Defaulting Member are hereby assigned by the Defaulting Member to the non-defaulting Members providing the loan (whether before or after dissolution of the Company) until the loan and all interest accrued thereon has been repaid in full to the non-defaulting Members providing the loan (with all such payments being applied first to interest earned and unpaid and then to principal); and (D) the non-defaulting Members providing the loan shall have the right, in addition to the other rights and remedies granted to them pursuant to this Agreement or available to them at law or in equity, to take such action as the non-defaulting Members providing the loan deem appropriate to obtain payment from the Defaulting Member of the principal balance of such loan and all accrued and unpaid interest thereon, at the cost and expense of the Defaulting Member. Upon payment of all such amounts and any other amounts owed and payable to the Company, such Member shall no longer be a Defaulting Member;
(c) Permitting those Members that desire to do so to lend all or a portion of the contribution that is in default to the Company, on such terms as the non-Defaulting Members may approve in accordance with Section 6.3(b); provided that there shall be no distributions of Net Distributable Revenue to any Members until loans made as a result of this provision have been repaid in full; and
(d) By vote of a majority of the Managers designated by the Members other than the Defaulting Member, expand or contract the number of Managers of the Company and fill such vacancies as determined by such Managers.
Appears in 1 contract
Samples: Operating Agreement (Global Linguist Solutions LLC)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten three (103) days after written Business Days following notice from any other Member the Administrative Agent (the calendar day immediately following such three (3) Business Day grace period being the “Default Date”) that such payment is overduein accordance with Sections 3.1(a) and (d), each of the other MembersMember, in its sole discretion, shall have the right right, without notice to the Defaulting Member, to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay contribute such unpaid portion to the Company the Defaulting Member’s unpaid portion of the capital call (andCompany, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company which amount shall be transferred deemed a Temporary Advance and returned to such Member)the non-defaulting Member pursuant to Section 3.2 hereof; and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down wind-up the Company in accordance with Article 88 as long as such action is not prohibited by Section 8.2(b). Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member the Company shall not be entitled to distributions made make new Investments after the Default Date until the default is cured; provided, however, that the cured except as permitted pursuant to clauses (ii) through (viii) of Valid Company shall have the right, but not the obligation, Purposes.
(c) If any Member fails to apply pay in full any portion of such distributions towards the amount otherwise payable by the Defaulting Member Member’s Capital Commitment when due in connection with a margin payment or other obligation pursuant to the Companyterms of a TRS, one or more of each Member may, in its sole discretion, fund any subsequent call for Capital Contributions made in accordance with Section 3.1 in connection with such margin call or other obligation required under the terms of a TRS to make up for such shortfall (regardless of the last sentence of Section 3.1(a)).
Appears in 1 contract
Samples: Limited Liability Company Agreement (CION Investment Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment Contribution within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
; and (ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(ii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 1 contract
Samples: Securities Purchase Agreement (HMS Income Fund, Inc.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such the Member’s Capital Commitment within ten (10) business days after written notice from any the other Member (the “Default Date”) that such the payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at Company if the Company’s expense, if such failure has not been cured in full within such the ten-business day period:
: (i) collect such the unpaid portion (and all attorneys’ fees and other costs incident theretoto the collection) by exercising and/or or pursuing any legal remedy the Company may have;
; and (ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-business day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8IX. Except as set forth belowin Section 4.03(b), the non-defaulting Members’ Member’s election to pursue any one of such those remedies shall not be deemed to preclude such Members the Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
, (i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such the default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, cured and any distributions to apply any such distributions towards the amount otherwise payable by which the Defaulting Member would otherwise have been entitled if the default had not occurred shall be applied to the Company.cure any default; and
Appears in 1 contract
Samples: Securities Purchase Agreement (Newtek Business Services Corp.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8VIII as long as such action is not prohibited by Section 8.02(b); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above) and if such failure has not been cured in full within such thirty-day period, compel the Defaulting Member to sell or transfer all or a portion of its interest in whole or in part subject to the following:
1) If the other Member notifies the Defaulting Member to sell or transfer all or a part of its interest, such Defaulting Member shall do so within sixty (60) days after the expiration of such thirty-day period; provided, however, that the non-Defaulting Member must consent, in its sole discretion, to such transfer and such transfer must otherwise be in accordance with Section 7.01 hereof.
2) Upon any failure of the Defaulting Member, under any circumstances, to sell or transfer all of its interests that are required to be sold within such sixty (60) day period, the other Member may purchase such interest or sell or transfer such interest to a third party or, subject to applicable law, to an Affiliate of a Member or the Company. The price for such sale or transfer shall be not less than the minimum cash purchase price for the Defaulting Member’s interest in the Company as determined by the Independent Valuation Firm for a hypothetical sale of such interest to an unaffiliated third party willing to purchase such interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Defaulting Member’s interest at such minimum price or a higher price, then the other Member may direct the sale or transfer of the Defaulting Member’s interest at a price and subject to such terms and conditions as it deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member of a promissory note issued by the purchaser thereof.
3) To the extent any amounts are owed by a Defaulting Member to a non-Defaulting Member with respect to a Default Loan, any purchase price that would otherwise be payable to the Defaulting Member under this Section 3.02(a)(iii) shall instead first be paid to the non-Defaulting Member pursuant to the terms of Section 3.02(b)(iii) hereof until each such Default Loan (and accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that cured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default;
(ii) the Company shall have not make new Investments after the rightDefault Date until the default is cured except as permitted pursuant to clauses (ii) through (vii) of Valid Company Purposes; and
(iii) the non-Defaulting Member(s), but not in its or their sole discretion, may fund all or any portion of the obligationdefaulted amount on behalf of the Defaulting Member(s) with notice to the other Members, if applicable. The Members agree and acknowledge that any amount so funded by the non-Defaulting Member(s) shall be treated as a loan from the non-Defaulting Member(s) to apply any the Defaulting Member(s) (a “Default Loan”), the proceeds of which are used by the Defaulting Member(s) to make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such distributions towards Defaulting Member. A Default Loan shall (A) bear interest from the amount otherwise date of such funding until repaid by the Defaulting Member(s) at a rate equal to the lower of 15% per annum or the maximum rate permitted by applicable law, (B) be pre-payable by the Defaulting Member Member(s) at any time and (C) be fully recourse to the Defaulting Member(s). Until such time that any Default Loan (including any accrued interest thereon) has been fully repaid, (x) any amounts that would otherwise be distributable to the Defaulting Member(s) under Section 5.01(b)(iii) or Section 5.02 hereof shall instead be distributed to the non-Defaulting Member(s) and (y) any purchase price payable to the Defaulting Member(s) in connection with any sale of its or their respective interests in the Company shall first be payable to the non-Defaulting Members until the repayment in full of the Default Loan(s) (including any accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the non-Defaulting Member(s) to such Defaulting Member(s). Any amounts distributed to the non-Defaulting Member(s) pursuant to the previous sentence shall be treated as for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member notwithstanding the Company’s distribution of such amounts to the non-Defaulting Member(s) and any amounts distributed or payable to the non-Defaulting Member(s) pursuant to the previous sentence shall reduce the amounts owed to the non-Defaulting Member(s) under the related Default Loan, first as to interest and then as to principal.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Saratoga Investment Corp.)
Defaulting Members. (a) Upon If a Non-Managing Member fails to pay any amount which it is required to pay to the failure Company on or before the date when such amount is due and payable, such Non-Managing Member shall be deemed to be in default hereunder (a "Defaulting Member"), and written notice of default shall be given to such Non- Managing Member by the Managing Members. The Company shall be entitled to enforce the obligations of each Non-Managing Member to make the contributions to capital specified in this Agreement, and the Company shall have all remedies available at law or in equity in the event any such contribution is not so made. In the event of any Member (legal proceedings relating to a “default by a Defaulting Member”) , such Defaulting Member shall pay all costs and expenses incurred by the Company, including attorneys' fees, if the Company shall prevail. Further, such Defaulting Member shall be obligated to pay the Company interest with respect to the amount of any capital contribution not made when required by this Agreement, with such interest commencing on the date such contribution is initially due and ending on the date such contribution is made to the Company. Such interest shall be calculated on the basis of the then current reference rate announced by Xxxxx Fargo Bank, N.A., or by any other U.S. commercial bank with capital in full any portion excess of such Member’s Capital Commitment Five Hundred Million Dollars ($500,000,000) selected by the Managing Members, plus two percent (2%) per annum.
(b) In addition to the remedies provided under Paragraph 5.4(a), if the Defaulting Member does not remedy a default in the payment of a required contribution within ten (10) business days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of the receipt of the notice specified in Paragraph 5.4(a): (i) the Defaulting Member shall no longer have the right (if any) to vote on any Company matter, and (ii) if the Managing Members so elect, the other Members, in its sole discretion, Members shall have the right option to pursue one or more of pay the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the remaining capital call (and, upon such payment, a corresponding portion contributions of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company Member in accordance with Article 8. Except any procedures and in such proportions as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not may be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable established by the Defaulting Member to the Company.Managing Members. In such event, such
Appears in 1 contract
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days Business Days after written notice from any other Member that such payment is overdue (the “Default Date”) that such payment is overdue), each of the any other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, with respect to sub-clauses (i) and at the Company’s expense(ii), or directly, with respect to sub-clauses (iii) and (iv), if such failure has not been cured in full within such ten-day ten (10) Business Day period:
(i) seek to collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call upon ten (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii10) upon thirty (30) daysBusiness Days’ written notice to the other Members (which period may commence during the ten-day ten (10) Business Day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8;
(iii) so long as it is not also a Defaulting Member, compel the Defaulting Member to sell or transfer the Defaulting Member’s Entire Interest and all of such Defaulting Member’s Subordinated Notes at the price and in accordance with the procedures set forth in Section 8.3(e); and
(iv) so long as it is not also a Defaulting Member, fund all or any portion of the defaulted amount on behalf of the Defaulting Member with notice to the Administrative Agent and the other Members; provided, that the Members hereby agree and acknowledge (A) that any amount so funded shall be treated as a loan to the Defaulting Member (a “Default Loan”) by the other Member (the “Loan Holder”), the proceeds of which are used by the Defaulting Member to make a Capital Contribution to the Company which, if in amount, may cure a related default by such Defaulting Member; (B) a Default Loan (together with all reasonable and documented costs and expenses incurred by the Loan Holder in connection making such Default Loan, including reasonable legal fees and expenses, which shall be added to the principal of any Default Loan if and when incurred) shall (I) bear interest from the date of such funding until repaid by the Defaulting Member at a rate equal to 10% per annum, compounded annually, (II) be pre-payable by the Defaulting Member at any time, and (III) be fully recourse to the Defaulting Member; (C) until such time that there is no outstanding balance owed under any Default Loan (including any accrued interest thereon), (x) any amounts that would otherwise be distributable to the Defaulting Member under Section 5.1 or Section 8.3(d) shall instead be distributed to the Loan Holder and (y) any purchase price payable to the Defaulting Member in connection with any sale of its interests in the Company shall first be paid to the Loan Holder and in each case of sub-clauses (x) and (y), as repayment of the Default Loan(s) until the repayment in full of such Default Loan(s) (and accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the Loan Holder to such Defaulting Member; and (D) any amounts distributed to the Loan Holder pursuant to the previous sentence shall be treated for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member, notwithstanding the Company’s distribution of such amounts to the Loan Holder, and any amounts distributed or payable to the Loan Holder pursuant to the previous sentence shall reduce the amounts owed to the Loan Holder under the related Default Loan, first as to interest and then as to principal. Except as set forth belowin Section 3.3(b), the non-defaulting Members’ Defaulting Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,:
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(ii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bain Capital Specialty Finance, Inc.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such the Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such the payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at Company if the Company’s expense, if such failure has not been cured in full within such the ten-day period:
(i) collect such the unpaid portion (and all attorneys’ fees and other costs incident theretoto the collection) by exercising and/or or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8VIII. Except as set forth belowin Section 3.03(b), the non-defaulting Members’ Member’s election to pursue any one of such those remedies shall not be deemed to preclude such Members the Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such the default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any distributions to which the Defaulting Member would otherwise have been entitled if the default had not occurred shall be applied to cure any default; provided, however, that and
(iii) the Company shall not make new Investments after the Default Date until the default is cured, except for those Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet, or letter of intent, or definitive legal documents under which less than all advances have been made) on or before the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the CompanyDefault Date.
Appears in 1 contract
Samples: Limited Liability Company Agreement (BlackRock Capital Investment Corp)
Defaulting Members. (a) Upon the failure of any Member (i) committing to purchase Participation Securities in accordance with Section 5.4 and (ii) failing to pay for such Participation Securities such Member committed to purchase when such amount is due and payable, such Member shall be in default (a “Defaulting Member”) to pay in full any portion ). The Board of such Member’s Capital Commitment within ten Managers (10) days after written notice from any other Member (acting by the “Default Date”) that such payment is overdue, each vote of Managers designated by Designated Members holding a majority of the other Memberstotal Membership Percentage Interests, in its sole discretion, shall have excluding the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion Membership Percentage Interest of the Defaulting Member’s interest ) may, in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above)its reasonable discretion, and provided determine that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable (i) be required to transfer to any non-defaulting Member or other Person the creditors amount of its Membership Interests equal to such Defaulting Member’s Capital Contributions at a transfer price equal to such Defaulting Member’s Capital Contributions; (ii) be prohibited from exercising any consent right to which such Defaulting Member would otherwise be entitled and, if applicable, shall be prohibited from appointing any Manager of the Company pursuant to Section 4.1; (iii) to the extent provided permitted by law as if such default had not occurred; and
(ii) a Defaulting Member shall Law, not be entitled to distributions made after the Default Date have a right of consent or voting rights in any matter subject to this Agreement until the default is cured; providedand/or (iv) pursue any other legal or equitable remedy available to the Company or the Founding Members. The foregoing remedies are not exclusive and the Board of Managers (acting by the vote of Managers designated by Designated Members holding a majority of the total Membership Percentage Interests, howeverexcluding the Membership Percentage Interests of the Defaulting Member) may, in its discretion, waive any of these remedies against a Defaulting Member.
(b) Upon, any Member (i) becoming subject to any final, binding, unappealable order of the Commission ordering such Member or any member of the board of directors, executive officer or manager (within the meaning of the Act) of such Member, as applicable, to cease and desist from committing or causing a violation of or future violation of any scienter-based anti-fraud provision of the federal securities Laws; (ii) becoming subject to any final, binding, unappealable order of the Commission entered pursuant to Section 15(b) or 15B(c) of the Exchange Act or Section 203(e) or 203(f) of the Investment Advisers Act of 1940, that places limitations on the activities, functions or operations of such Member or any member of the board of directors, executive officer or manager (within the meaning of the Act) of such Member that would materially adversely affect the Company; (iii) becoming subject to a final, binding, unappealable order of a state securities commission (or any agency or officer of such state performing like functions), that bars such Member or any member of the board of directors, executive officer or manager (within the meaning of the Act) of such Member from association with an entity regulated by such commission or engaging in the business of securities in such state; (iv) failing to make a payment required under the Purchase Agreement (expressly excluding payments arising pursuant to Section 2.3 of the Purchase Agreement); or [*], then, in each case, such Member shall be in a major default (a “Major Defaulting Member”). The Board of Managers (acting by the unanimous vote of Managers designated by Members excluding the Membership Percentage Interest of the Major Defaulting Member), may, in its discretion, determine that such Major Defaulting Member (A) shall immediately cease to be a Member of the Company, [*]. ALL MEMBERS IN THEIR CAPACITY AS A MEMBER HEREUNDER, ACKNOWLEDGE AND UNDERSTAND THAT THIS SECTION 5.3(b) MAY RESULT IN ANY MEMBERSHIP INTEREST HELD BY SUCH MEMBER AND ITS AFFILIATES AND SUCH MEMBER’S RIGHTS AND STATUS AS A MEMBER BEING SUBJECT TO FORFEITURE IN ACCORDANCE WITH THIS SECTION 5.3(b).
(c) Following a forfeiture pursuant to Section 5.3(b), the Major Defaulting Member Default Interests shall be allocated to each Member other than such Major Defaulting Member, in an amount equal to [*].
(d) It is expressly understood and agreed that although each Member and the Company consider the restrictions contained in this Section 5.3 to be reasonable, if a final determination is made by an arbitrator to whom the parties have assigned the matter or a court of competent jurisdiction that any restriction contained in this Section 5.3 is an unenforceable restriction against any Member, the provisions of this Agreement shall have the right, not be rendered void but not the obligation, shall be reformed to apply as to such maximum time and to such maximum extent as such arbitrator or court may determine or indicate to be enforceable. Alternatively, if such arbitrator or court finds that any restriction contained in this Section 5.3 is unenforceable, and such distributions towards restriction cannot be reformed so as to make it enforceable, such finding shall not affect the amount otherwise payable by enforceability of any of the Defaulting Member to the Companyother restrictions contained herein.
Appears in 1 contract
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) business days after written notice from any other Member that such payment is overdue (the “Default Date”) that such payment is overdue), each of the any other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, with respect to sub-clauses (i) and at the Company’s expense(ii), or directly, with respect to sub-clauses (iii) and (iv), if such failure has not been cured in full within such ten-ten (10) business day period:
(i) seek to collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call upon ten (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii10) upon thirty (30) business days’ written notice to the other Members (which period may commence during the ten-ten (10) business day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8;
(iii) so long as it is not also a Defaulting Member, compel the Defaulting Member to sell or transfer the Defaulting Member’s Entire Interest and all of such Defaulting Member’s Subordinated Notes at the price and in accordance with the procedures set forth in Section 8.3(e); and
(iv) so long as it is not also a Defaulting Member, fund all or any portion of the defaulted amount on behalf of the Defaulting Member with notice to the Administrative Agent and the other Members; provided, that the Members hereby agree and acknowledge (A) that any amount so funded shall be treated as a loan to the Defaulting Member (a “Default Loan”) by the other Member (the “Loan Holder”), the proceeds of which are used by the Defaulting Member to make a Capital Contribution to the Company which, if in amount, may cure a related default by such Defaulting Member; (B) a Default Loan (together with all reasonable and documented costs and expenses incurred by the Loan Holder in connection making such Default Loan, including reasonable legal fees and expenses, which shall be added to the principal of any Default Loan if and when incurred) shall (I) bear interest from the date of such funding until repaid by the Defaulting Member at a rate equal to 10% per annum, compounded annually, (II) be pre-payable by the Defaulting Member at any time, and (III) be fully recourse to the Defaulting Member; (C) until such time that there is no outstanding balance owed under any Default Loan (including any accrued interest thereon), (x) any amounts that would otherwise be distributable to the Defaulting Member under Section 5.1 or Section 8.3(d) shall instead be distributed to the Loan Holder and (y) any purchase price payable to the Defaulting Member in connection with any sale of its interests in the Company shall first be paid to the Loan Holder and in each case of sub-clauses (x) and (y), as repayment of the Default Loan(s) until the repayment in full of such Default Loan(s) (and accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the Loan Holder to such Defaulting Member; and (D) any amounts distributed to the Loan Holder pursuant to the previous sentence shall be treated for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member, notwithstanding the Company’s distribution of such amounts to the Loan Holder, and any amounts distributed or payable to the Loan Holder pursuant to the previous sentence shall reduce the amounts owed to the Loan Holder under the related Default Loan, first as to interest and then as to principal. The remedies described in sub-sections (iii) and (iv) above may only be taken (A) against a Pantheon Member that is a Defaulting Member by BCSF or (B) against BCSF as a Defaulting Member by a Pantheon Member. Except as set forth belowin Section 3.3(b), the non-defaulting Members’ Defaulting Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,:
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(ii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bain Capital Specialty Finance, Inc.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten the time period specified in the related Capital Call Notice (10the Business Day next succeeding the tenth (10th) days after written notice from any other Member (Business Day immediately following the expiration of such time period being the “Default Date”) that such payment is overduein accordance with Section 3.1(a), each of the other Membersnon-Defaulting Member, in its sole discretion, shall have the right right, without notice to the Defaulting Member, to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay contribute such unpaid portion to the Company, which amount shall be deemed a Temporary Advance and returned to the non-defaulting Member pursuant to Section 3.2 hereof;
(iii) charge interest on the unpaid balance of any overdue Capital Commitment at a rate equal to the Default Rate, from the date such balance was due and payable through the date full payment for such Capital Commitment is actually made; and/or
(iv) exercise all rights of a secured creditor at law or in equity, including the right to sell all of the interest in the Company held by the Defaulting Member to the Company or another Person (including, without limitation, an existing Member) at a price equal to the Capital Account of the Defaulting Member adjusted to reflect the Value of the Company as determined as of the date of the last valuation pursuant to Section 9.4 (and be required to assume the Defaulting Member’s unpaid portion remaining Capital Commitment), with the proceeds from such sale to be applied in the following order: first, to the payment of the capital call (andexpenses of the sale; second, upon such paymentto the payment of the expenses of the Company resulting from the default, a corresponding portion including court costs and penalties, if any, and reasonable attorneys’ fees and costs; third, to the payment of all amounts due from the Defaulting Member to the Company, including the amount of the Defaulting Member’s Capital Contribution required pursuant to the related Capital Call Notice and interest in due thereon pursuant to Section 3.3(a)(iii); fourth, to the Defaulting Member, an amount up to fifty percent (50%) of the amount the Defaulting Member previously contributed to the Company shall be transferred less any distributions previously made to such the Defaulting Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during and thereafter, any remainder to the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Company; Except as set forth below, the non-defaulting Members’ Defaulting Member’s election to pursue any one of such remedies shall not be deemed to preclude the Company or such Members non-Defaulting Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently. For the avoidance of doubt, if applicable, a Member shall not be deemed to be a Defaulting Member until the resolution of any dispute as to whether the Member failed to pay in full any portion of such Member’s Capital Commitment within the time period specified in the related Capital Call Notice in accordance with Section 3.1(a).
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured;
(iii) a default may be cured by a Defaulting Member within ten days by contribution to the Company of an amount equal to the sum of the unpaid balance of any overdue Capital Commitment_plus interest accrued therein at the Default Rate; provided, however, that and
(iv) the Company shall have not make new Investments after the rightDefault Date until the default is cured, but not the obligation, except as permitted pursuant to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companyclauses (ii) through (viii) of Valid Company Purposes.
Appears in 1 contract
Samples: Limited Liability Company Agreement (New Mountain Finance Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8VIII as long as such action is not prohibited by Section 8.02(b); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above) and if such failure has not been cured in full within such thirty-day period, compel the Defaulting Member to sell or transfer all or a portion of its interest in whole or in part subject to the following:
1) If the other Member notifies the Defaulting Member to sell or transfer all or a part of its interest, such Defaulting Member shall do so within sixty (60) days after the expiration of such thirty-day period; provided, however, that the non-Defaulting Member must consent, in its sole discretion, to such transfer and such transfer must otherwise be in accordance with Section 7.01 hereof.
2) Upon any failure of the Defaulting Member, under any circumstances, to sell or transfer all of its interests that are required to be sold within such sixty (60) day period, the other Member may purchase such interest or sell or transfer such interest to a third party or, subject to applicable law, to an Affiliate of a Member or the Company. The price for such sale or transfer shall be not less than the minimum cash purchase price for the Defaulting Member’s interest in the Company as determined by the Independent Valuation Firm selected by the other Member for a hypothetical sale of such interest to an unaffiliated third party willing to purchase such interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Defaulting Member’s interest at such minimum price or a higher price, then the other Member may direct the sale or transfer of the Defaulting Member’s interest at a price and subject to such terms and conditions as it deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member of a promissory note issued by the purchaser thereof.
3) To the extent any amounts are owed by a Defaulting Member to a non-Defaulting Member with respect to a Default Loan, any purchase price that would otherwise be payable to the Defaulting Member under this Section 3.02(a)(iii) shall instead first be paid to the non-Defaulting Member pursuant to the terms of Section 3.02(b)(iii) hereof until each such Default Loan (and accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that cured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default;
(ii) the Company shall have not make new Investments after the rightDefault Date until the default is cured except as permitted pursuant to clauses (ii) through (vii) of Valid Company Purposes; and
(iii) the non-Defaulting Member(s), but not in its or their sole discretion, may fund all or any portion of the obligationdefaulted amount on behalf of the Defaulting Member(s) with notice to the other Members, if applicable. The Members agree and acknowledge that any amount so funded by the non-Defaulting Member(s) shall be treated as a loan from the non-Defaulting Member(s) to apply any the Defaulting Member(s) (a “Default Loan”), the proceeds of which are used by the Defaulting Member(s) to make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such distributions towards Defaulting Member. A Default Loan shall (A) bear interest from the amount otherwise date of such funding until repaid by the Defaulting Member(s) at a rate equal to the lower of 15% per annum or the maximum rate permitted by applicable law, (B) be pre-payable by the Defaulting Member Member(s) at any time and (C) be fully recourse to the Defaulting Member(s). Until such time that any Default Loan (including any accrued interest thereon) has been fully repaid, (x) any amounts that would otherwise be distributable to the Defaulting Member(s) under Section 5.01(b)(iii) or Section 5.02 hereof shall instead be distributed to the non-Defaulting Member(s) and (y) any purchase price payable to the Defaulting Member(s) in connection with any sale of its or their respective interests in the Company shall first be payable to the non-Defaulting Members until the repayment in full of the Default Loan(s) (including any accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the non-Defaulting Member(s) to such Defaulting Member(s). Any amounts distributed to the non-Defaulting Member(s) pursuant to the previous sentence shall be treated as for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member notwithstanding the Company’s distribution of such amounts to the non-Defaulting Member(s) and any amounts distributed or payable to the non-Defaulting Member(s) pursuant to the previous sentence shall reduce the amounts owed to the non-Defaulting Member(s) under the related Default Loan, first as to interest and then as to principal.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Owl Rock Capital Corp)
Defaulting Members. If any Class A Member fails to timely contribute its full Initial Class A Funding Percentage of a Capital Call that such Class A Member is required to contribute pursuant to Section 4.1(e)(i) and at least one other Class A Member timely contributes its full Class A Sharing Percentage of such Capital Call amount (a) Upon the failure “Non-Defaulting Member”), then the Company or a Non-Defaulting Member shall deliver a written notice of any Member default (a “Defaulting MemberDefault Notice”) to pay in the Defaulting Member setting forth the amount such Defaulting Member failed to timely fund. If the Defaulting Member’s full any portion Initial Class A Funding Percentage of such Member’s Capital Commitment Call amount is not received by the Company from such Class A Member within ten (10) days Business Days after written notice from any other Member delivery of the Default Notice (the “Default DateCure Period”), then:
(a) that such payment is overdue, each of the other Members, in its sole discretion, Class A Member shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:be deemed a “Defaulting Member” and
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company if the Defaulting Member’s unpaid portion Member is Carbon, then Supermajority of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies Voting Power shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision require the affirmative vote of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurredCarbon Designee; and
(ii) if the Defaulting Member is Old Ironsides, then a Majority of the Voting Power shall not require the affirmative vote of an Old Ironsides Designee;
(b) the Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company participate in any future Capital Calls pursuant to Section 4.1 or as a Preemptive Rights Member pursuant to Section 4.4;
(c) each Non-Defaulting Member shall have the rightoption, but not exercisable in its sole and absolute discretion to either (A) fund all or a portion of the obligationDefaulting Member’s Unfunded Amount and to treat such funding of the Unfunded Amount as either an additional Capital Contribution, subject to apply any such distributions towards Section 4.7 (an “Optional Contribution”), or (B) by delivery of written notice to the Company and the Defaulting Member within twenty (20) Business Days after the date the Default Notice is delivered to the Defaulting Member, require the Company to return to the Non-Defaulting Member up to 100% of the amount otherwise payable contributed by the Non-Defaulting Member to the CompanyCompany in connection with such Capital Call;
(d) the Non-Defaulting Member(s) may fund the Defaulting Member’s Initial Class A Funding Percentage of all subsequent Capital Call amounts as Optional Contributions until the Defaulting Member’s Capital Commitment has been fully funded; and “Class A Sharing Percentage” for purposes of Section 4.1(i) and Section 4.4 shall be calculated without giving effect to Units held by the Defaulting Member; and
(e) if more than one Non-Defaulting Member elects to fund the Unfunded Amount or the Defaulting Member’s Class A Sharing Percentage of all subsequent Capital Call amounts, then each Non-Defaulting Member so electing shall be entitled to fund its portion of such Unfunded Amount or the Defaulting Member’s Class A Sharing Percentage of all subsequent Capital Call amounts based on the relative Class A Sharing Percentage of each such Non-Defaulting Member, unless otherwise agreed to among such Non-Defaulting Members.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Carbon Natural Gas Co)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8VIII as long as such action is not prohibited by Section 8.02(b); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above) and if such failure has not been cured in full within such thirty-day period, compel the Defaulting Member to sell or transfer all or a portion of its interest in whole or in part subject to the following:
1) If the other Member notifies the Defaulting Member to sell or transfer all or a part of its interest, such Defaulting Member shall do so within sixty (60) days after the expiration of such thirty-day period; provided, however, that the non-Defaulting Member must consent, in its sole discretion, to such transfer and such transfer must otherwise be in accordance with Section 7.01 hereof.
2) Upon any failure of the Defaulting Member, under any circumstances, to sell or transfer all of its interests that are required to be sold within such sixty (60) day period, the other Member may purchase such interest or sell or transfer such interest to a third party or, subject to applicable law, to an Affiliate of a Member or the Company. The price for such sale or transfer shall be not less than the minimum cash purchase price for the Defaulting Member’s interest in the Company as determined by the Independent Valuation Firm selected by the other Member for a hypothetical sale of such interest to an unaffiliated third party willing to purchase such interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Defaulting Member’s interest at such minimum price or a higher price, then the other Member may direct the sale or transfer of the Defaulting Member’s interest at a price and subject to such terms and conditions as it deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member of a promissory note issued by the purchaser thereof.
3) To the extent any amounts are owed by a Defaulting Member to a non-Defaulting Member with respect to a Default Loan, any purchase price that would otherwise be payable to the Defaulting Member under this Section 3.03(a)(iii) shall instead first be paid to the non-Defaulting Member pursuant to the terms of Section 3.03(b)(iii) hereof until each such Default Loan (and accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that cured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default;
(ii) the Company shall have not make new Investments after the rightDefault Date until the default is cured except as permitted pursuant to clauses (ii) through (vii) of Valid Company Purposes; and
(iii) the non-Defaulting Member(s), but not in its or their sole discretion, may fund all or any portion of the obligationdefaulted amount on behalf of the Defaulting Member(s) with notice to the other Members, if applicable. The Members agree and acknowledge that any amount so funded by the non-Defaulting Member(s) shall be treated as a loan from the non-Defaulting Member(s) to apply any the Defaulting Member(s) (a “Default Loan”), the proceeds of which are used by the Defaulting Member(s) to make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such distributions towards Defaulting Member. A Default Loan shall (A) bear interest from the amount otherwise date of such funding until repaid by the Defaulting Member(s) at a rate equal to the lower of 15% per annum or the maximum rate permitted by applicable law, (B) be pre-payable by the Defaulting Member Member(s) at any time and (C) be fully recourse to the Defaulting Member(s). Until such time that any Default Loan (including any accrued interest thereon) has been fully repaid, (x) any amounts that would otherwise be distributable to the Defaulting Member(s) under Section 5.01(b)(iii) or Section 5.02 hereof shall instead be distributed to the non-Defaulting Member(s) and (y) any purchase price payable to the Defaulting Member(s) in connection with any sale of its or their respective interests in the Company shall first be payable to the non-Defaulting Members until the repayment in full of the Default Loan(s) (including any accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the non-Defaulting Member(s) to such Defaulting Member(s). Any amounts distributed to the non-Defaulting Member(s) pursuant to the previous sentence shall be treated as for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member notwithstanding the Company’s distribution of such amounts to the non-Defaulting Member(s) and any amounts distributed or payable to the non-Defaulting Member(s) pursuant to the previous sentence shall reduce the amounts owed to the non-Defaulting Member(s) under the related Default Loan, first as to interest and then as to principal.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Owl Rock Core Income Corp.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 88 as long as such action is not prohibited by Section 8.2(b); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above) and if such failure has not been cured in full within such thirty-day period, compel the Defaulting Member to sell or transfer all or a portion of its interest in whole or in part subject to the following:
(A) If the other Member notifies the Defaulting Member to sell or transfer all or a part of its interest, such Defaulting Member shall do so within sixty (60) days after the expiration of such thirty-day period.
(B) Upon any failure of the Defaulting Member, under any circumstances, to sell or transfer all of its interests that are required to be sold within such sixty (60) day period, the other Member may purchase such interest or sell or transfer such interest to a third party or, subject to applicable law, to an Affiliate of a Member or the Company. The price for such sale or transfer shall be not less than the minimum cash purchase price for the Defaulting Member’s interest in the Company as determined by any of Duff & Xxxxxx Corporation, Xxxxxxxx Xxxxx, Inc. or Lincoln International, selected by the other Member for a hypothetical sale of such interest to an unaffiliated third party willing to purchase such interest within a ninety (90) day time period; provided, however, that if no such buyer is found within such ninety (90) day period to purchase the Defaulting Member’s interest at such minimum price or a higher price, then the other Member may direct the sale or transfer of the Defaulting Member’s interest at a price and subject to such terms and conditions as it deems commercially reasonable in its good faith judgment and sole discretion, which terms and conditions may include the acceptance by the Defaulting Member of a promissory note issued by the purchaser thereof.
(C) To the extent any amounts are owed by a Defaulting Member to a non-Defaulting Member with respect to a Default Loan, any purchase price that would otherwise be payable to the Defaulting Member under this Section 3.3(a)(iii) shall instead first be paid to the non-Defaulting Member pursuant to the terms of Section 3.3(b)(iii) hereof until each such Default Loan (and accrued interest thereon) has been repaid in full with the remainder of such purchase price, if any, payable to the Defaulting Member. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that cured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default;
(ii) the Company shall have not make new Investments after the rightDefault Date until the default is cured except as permitted pursuant to clauses (ii) through (vii) of Valid Company Purposes; and
(iii) the non-Defaulting Member(s), but not in its or their sole discretion, may fund all or any portion of the obligationdefaulted amount on behalf of the Defaulting Member(s) with notice to the Board and to the other Members. The Members agree and acknowledge that any amount so funded by the non-Defaulting Member(s) shall be treated as a loan from the non-Defaulting Member(s) to the Defaulting Member(s) (a “Default Loan”), the proceeds of which are used by the Defaulting Member(s) to apply any make a Capital Contribution to the Company which, if in a sufficient amount, may cure a related default by such distributions towards Defaulting Member. A Default Loan shall (A) bear interest from the amount otherwise date of such funding until repaid by the Defaulting Member(s) at a rate equal to the lower of 15% per annum or the maximum rate permitted by applicable law, (B) be pre-payable by the Defaulting Member Member(s) at any time and (C) be fully recourse to the Defaulting Member(s). Until such time that any Default Loan (including any accrued interest thereon) has been fully repaid, (x) any amounts that would otherwise be distributable to the Defaulting Member(s) under Section 5.1(b)(iii) or Section 5.2 hereof shall instead be distributed to the non-Defaulting Member(s) and (y) any purchase price payable to the Defaulting Member(s) in connection with any sale of its or their respective interests in the Company shall first be payable to the non-Defaulting Members until the repayment in full of the Default Loan(s) (including any accrued interest thereon) proportionate to the amount of Default Loan(s) so extended by the non-Defaulting Member(s) to such Defaulting Member(s). Any amounts distributed to the non-Defaulting Member(s) pursuant to the previous sentence shall be treated as for all purposes of this Agreement and for U.S. federal, state and local income tax purposes as having been made by the Company to the Defaulting Member notwithstanding the Company’s distribution of such amounts to the non-Defaulting Member(s) and any amounts distributed or payable to the non-Defaulting Member(s) pursuant to the previous sentence shall reduce the amounts owed to the non-Defaulting Member(s) under the related Default Loan, first as to interest and then as to principal.
(c) If any Member fails to pay in full any portion of such Member’s Capital Commitment when due in connection with a capital call pursuant to the terms of a Subscription Facility, the other Members shall be obligated to fund any subsequent call for Capital Contributions made in accordance with Section 3.1 in connection with a capital call pursuant to the terms of a Subscription Facility to make up for such shortfall (regardless of the last sentence of Section 3.1(a)), provided that in no event shall a Member be obligated to fund more than its Capital Commitment.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Goldman Sachs BDC, Inc.)
Defaulting Members. (a) Upon the failure of any If a Non-Managing Member (a “Defaulting Member”) fails to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment amount which it is overdue, each of the other Members, in its sole discretion, shall have the right required to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company on or before the date when such amount is due and payable. such Non- Managing Member shall be deemed to be in default hereunder (a Defaulting Member’s unpaid portion ). and written notice of default shall be given to such Non-Managing Member by the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Managing Members. The Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after enforce the Default Date until obligations of each Non-Managing Member to make the default is cured; provided, however, that contributions to capital specified in this Agreement. and the Company shall have all remedies available at law or in equity in the right, but not the obligation, to apply event any such distributions towards contribution is not so made. In the event of any legal proceedings relating to a default by a Defaulting Member. such Defaulting Member shall pay all costs and expenses incurred by the Company, including attorneys fees, if the Company shall prevail. Further, such Defaulting Member shall be obligated to pay the Company interest with respect to the amount otherwise payable of any capital contribution not made when required by this Agreement, with such interest commencing on the date such contribution is initially due and ending on the date such contribution is made to the Company. Such interest shall be calculated on the basis of the then current reference rate announced by U.S. Federal Reserve Open Market Committee, or by any other USA commercial bank with capital in excess of one billion dollars selected by the Managing Members, plus five percent 5% per annum.
b) In addition to the remedies provided under Paragraph 5.4(a), if the Defaulting Member does not remedy a default in the payment of a required contribution within thirty business days of the receipt of the notice specified in Paragraph 5.4(a): (i) the Defaulting Member shall no longer have the right (if any) to vote on any Company matter, and (ii) if the Managing Members so elect, the other Members shall have the option to pay the remaining capital contributions of the Defaulting Member in accordance with any procedures and in such proportions as may be established by the Managing Members. In such event, such Defaulting Member shall be deemed to have withdrawn from the Company and to have forfeited its interest in the Net Income and Net Losses of the Company. Such Defaulting Member shall be entitled to receive only the amount of its Capital Account at the time of the default, with such amount payable, without interest, to the Defaulting Member upon the dissolution of the Company.
Appears in 1 contract
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment the Drawdown within ten (10) the 10 business days after written notice from any other Member the Due Date (the “Default Date”) that such payment is overdue), each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) cause the Defaulting Member to (A) not share in any Profits or related net proceeds realized by the Company on any disposition of an Investment occurring after the Default Date (regardless of when the Investment was made) and (B) continue to share in any Losses realized by the Company on any disposition of an Investment in which the Defaulting Member participated, in each case until such time as the Defaulting Member funds the unpaid portion of the Drawdown;
(ii) collect such unpaid portion of the Drawdown (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(iiiii) pay to the Company cause the Defaulting Member’s unpaid portion Member to sell of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest its Membership Interests as set forth in the Company shall be transferred to such MemberSection 5.1(b); and
(iiiiv) upon thirty (30) 30 days’ written notice (which period may shall commence during on the ten-day notice period provided above), Due Date) and provided that the overdue Drawdown payment has not been mademade and no legal action for collection is pending, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one terms of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequentlythis Agreement.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) , a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, except that the Company any distributions to which a Member otherwise would be entitled shall have the right, but not the obligation, be applied to apply cure any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault.
Appears in 1 contract
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment the Drawdown within ten (10) the 10 business days after written notice from any other Member the Due Date (the “Default Date”) that such payment is overdue), each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) cause the Defaulting Member to (A) not share in any Profits or related net proceeds realized by the Company on any disposition of an Investment occurring after the Default Date (regardless of when the Investment was made) and (B) continue to share in any Losses realized by the Company on any disposition of an Investment in which the Defaulting Member participated, in each case until such time as the Defaulting Member funds the unpaid portion of the Drawdown;
(ii) collect such unpaid portion of the Drawdown (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(iiiii) pay to the Company cause the Defaulting Member’s unpaid portion Member to sell of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest its Membership Interests as set forth in the Company shall be transferred to such MemberSection 5.1(b); and
(iiiiv) upon thirty (30) 30 days’ written notice (which period may shall commence during on the ten-day notice period provided above), Due Date) and provided that the overdue Drawdown payment has not been mademade and no legal action for collection is pending, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one terms of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequentlythis Agreement.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) , a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, except that the Company any distributions to would be entitled shall have the right, but not the obligation, be applied to apply cure any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault.
Appears in 1 contract
Samples: Limited Liability Company Operating Agreement (Capital Southwest Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) days after written notice from any the other Member (the “Default Date”) that such payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iiiii) upon thirty (30) days’ days written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, either (x) dissolve and wind down the Company in accordance with Article 88 and, in the event the non-defaulting Member is Solar, immediately terminate the Reinvestment Period, or (y) acquire the defaulting Member’s membership interest in the Company and Junior Loans at the then current Value (and be required to assume such Member’s remaining Capital Commitment). In the event that Solar elects to purchase all of Investor’s Junior Loans and interests in the Company pursuant to this Section 3.2(ii) and as a result of the procedures set forth in Section 9.5(a)(iii) the valuation for such purchase is increased, Solar shall have the right to revoke its purchase election. Additionally, in the event the non-defaulting Member is Investor, such event shall constitute “Cause” under the Servicing Agreement. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Solar Capital Ltd.)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such Member’s Capital Commitment within ten (10) business days after written notice from any other Member that such payment is overdue (the “Default Date”) that such payment is overdue), each any of the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, Company if such failure has not been cured in full within such ten-ten (10) business day period:
(i) seek to collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or or pursuing any legal remedy the Company may have;; and
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call upon ten (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii10) upon thirty (30) business days’ written notice to the other Members (which period may commence during the ten-business day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ Member’s election to pursue any one of such remedies shall not be deemed to preclude such Members Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such default had not occurred; andoccurred and shall remain subject to Section 2.6;
(ii) a Defaulting Member shall not be entitled to distributions made after the Default Date until the default is curedcured and any such distributions to which such Defaulting Member would otherwise have been entitled if such default had not occurred shall be debited against the Capital Account of the Defaulting Member so as to reduce the remaining amount of the default; provided, however, that and
(iii) the Company shall have not make new Investments after the right, but not Default Date until the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the Companydefault is cured.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pennantpark Investment Corp)
Defaulting Members. (a) Upon the failure of any Member (a “Defaulting Member”) to pay in full any portion of such the Member’s Capital Commitment within ten twenty (1020) days after written notice from any the other Member (the “Default Date”) that such the payment is overdue, each of the other MembersMember, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at Company if the Company’s expense, if such failure has not been cured in full within such tenthe twenty-day period:
(i) collect such the unpaid portion (and all attorneys’ fees and other costs incident theretoto the collection) by exercising and/or or pursuing any legal remedy the Company may have;; and
(ii) require the Defaulting member to pay to the Company interest on the Defaulting amount of the Member’s unpaid portion of Capital Commitment in default at the capital call Default Rate from the date that is twenty (and, upon such payment, a corresponding portion of 20) days from the Defaulting Member’s interest in Contribution Due Date through the Company shall be transferred to such Member); anddate on which the amount is no longer outstanding.
(iii) upon thirty (30) days’ written notice (which period may commence during the tentwenty-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8VIII. Except as set forth belowin Section 3.03(b), the non-defaulting Members’ Member’s election to pursue any one of such those remedies shall not be deemed to preclude such Members the Member from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding any provision of this Agreement to the contrary,
(i) a Defaulting Member shall remain fully liable to the creditors of the Company to the extent provided by law as if such the default had not occurred; and;
(ii) a Defaulting Member shall not be entitled to all or a portion, in the discretion of the other Member, of distributions made after the Default Date until the default is curedcured and any interest owned pursuant to Section 3.03(a)(ii) has been paid to the Company and any distributions to which the Defaulting Member would otherwise have been entitled if the default had not occurred shall be applied to cure any default; provided, however, that and
(iii) the Company shall not make new Investments after the Default Date until the default is cured, except for those Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet, or letter of intent, or definitive legal documents under which less than all advances have been made) on or before the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member to the CompanyDefault Date.
Appears in 1 contract
Samples: Limited Liability Company Agreement (MONROE CAPITAL Corp)
Defaulting Members. (a) Upon the failure of If any Member fails to make any Capital Contribution Obligation payment when due, then interest shall accrue on the delinquent payment amount at the Reference Rate plus five percent (a “Defaulting Member”5%) until paid. This shall not be an exclusive remedy, but shall be in addition to pay in full any portion all other remedies of such Member’s Capital Commitment within ten (10) days after written notice from any other Member (the “Default Date”) that such payment is overdue, each of Company and the other Members, in its sole discretion, shall have the right to pursue one or more of the following remedies on behalf of the Company, and at the Company’s expense, if such failure has not been cured in full within such ten-day period:
(i) collect such unpaid portion (and all attorneys’ fees and other costs incident thereto) by exercising and/or pursuing any legal remedy the Company may have;
(ii) pay to the Company the Defaulting Member’s unpaid portion of the capital call (and, upon such payment, a corresponding portion of the Defaulting Member’s interest in the Company shall be transferred to such Member); and
(iii) upon thirty (30) days’ written notice (which period may commence during the ten-day notice period provided above), and provided that the overdue payment has not been made, dissolve and wind down the Company in accordance with Article 8. Except as set forth below, the non-defaulting Members’ election to pursue any one of such remedies shall not be deemed to preclude such Members from pursuing any other such remedy, or any other available remedy, simultaneously or subsequently.
(b) Notwithstanding In the event that at any provision time or for any reason a Member (each a “Delinquent Member”) fails to fulfill it’s Operating Capital Contribution Obligation on or before the date due thereof, then and in that event the Manager or other Member acting for an on behalf of this Agreement the Company may cause written notice of such default to be given to the contrary,
Delinquent Member. If the payment default shall continue for a period of fifteen (i15) days after the date of written notice of default, then the other Members (each a “Contributing Member”) if willing to do so, may upon written notice to the other Members pay the Delinquent Member’s Operating Capital Contribution in excess of such Member’s Percentage Interest and shall have the option to treat that amount as an additional Capital Contribution or as a demand loan to the Delinquent Member (which shall accrue interest at the Reference Rate plus 5% until paid), which election shall be made, in writing, at the same time the contribution is made. If there is more than one Contributing Member, then the Contributing Members may allocate such contribution by them and in no event shall either of them have the right without mutual written agreement to make a contribution more than a pro rata amount according to their respective Percentage Interests. If a Contributing Member fails to make said election, the contribution shall be deemed to be an additional Capital Contribution. If a Contributing Member elects to treat the contribution as an additional Capital Contribution such funds shall be allocated to such Member’s Capital Account and such Member’s Membership Interest, Membership Units and Percentage Interest shall be adjusted by the Manager following such Capital Contribution to reflect the new amounts based on the Agreed Value as of the time of the Capital Contribution as determined by the Manager, whose determination shall be binding and conclusive on the parties hereto. If a Contributing Member treats such contribution as a demand loan to the Defaulting Member, then from and after the date of the contribution by the Contributing Member or Members, distributions from the Company due to the Defaulting Member shall remain fully liable be paid to the creditors of the Company Contributing Member or Members in proportion to the extent provided amount so contributed by law each such Contributing Member, and such payments shall continue until such time as if such default had not occurred; and
(ii) a Defaulting Member shall not be entitled the principal and interest of all loans to distributions made after the Default Date until the default is cured; provided, however, that the Company shall have the right, but not the obligation, to apply any such distributions towards the amount otherwise payable by the Defaulting Member are paid in full with interest as set forth above. Additionally, the Contributing Member may pursue any and all legal rights and remedies to collect the Companydemand loan together with accrued interest thereon.
Appears in 1 contract
Samples: Operating Agreement (Torvec Inc)
