Wind Down. (a) Upon the dissolution of the Company, the Company shall be liquidated in accordance with this Article and the Act. The liquidation shall be conducted and supervised by the Board in the same manner provided by Article VII with respect to the operation of the Company during its term; provided that in the case of a dissolution and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), the Member that elects the dissolution and winding up (or in the case of a full withdrawal of a Member under Section 9.02(c), the non-withdrawing Member) may elect further, by written notice to the other Member, to exercise as liquidating agent all of the rights, powers, and authority with respect to the assets and liabilities of the Company in connection with the liquidation of the Company, to the same extent as the Board would have during the term of the Company. (b) From and after the date on which an event set forth in Section 9.02 becomes effective (which, for purposes of Section 9.02, shall be deemed to be the date on which the written notice referenced therein is delivered by one Member to the other Member), the Company shall cease to make Investments after that date, except for (i) 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 such effective date, and (ii) at the election of the Board by Board Approval within three (3) business days after receipt by the Board of written notice of the availability of the election from any Member, any Investment in a Portfolio Company in which the Company then has an Investment in which the Company participates, provided that the election shall not apply to any Investment in connection with a sale or other Change of Control of the Portfolio Company or a refinancing of the Company’s prior Investment in the Portfolio Company. Capital calls against the Capital Commitment of the Members shall cease from and after the effective date; provided that capital calls against the Capital Commitment of the Members may continue to fund the allocable share of Investments in which the Company continues to participate (as set forth in the 31 (c) Distributions to the Members during the winding down of the Company shall be made no less frequently than quarterly to the extent consisting of a Member’s allocable share of cash and cash equivalents, after taking into account reasonable reserves deemed appropriate by Board Approval (or in the event of a dissolution and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), by a Member that has elected to act as liquidating agent pursuant to Section 9.03(a)), to fund Investments in which the Company continues to participate (as set forth in the immediately preceding paragraph), Expenses and all other obligations (including contingent obligations) of the Company. Unless waived by Board Approval, the Company also shall withhold ten percent (10%) of distributions in any calendar year, which withheld amount shall be distributed within sixty (60) days after the completion of the annual audit covering that year. A Member shall remain a member of the Company until all Investments in which the Company participates are repaid or otherwise disposed of, the Member’s allocable share of all Expenses and all other obligations (including contingent obligations) of the Company are paid, and all distributions are made under this Agreement, at which time the Member shall have no further rights under this Agreement. (d) Upon dissolution of the Company, final allocations of all items of Company’s Profit and Loss shall be made in accordance with Section 5.02. Upon dissolution of the Company, the assets of the Company shall be applied in the following order of priority: (i) To creditors (other than Members) in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; (ii) To creditors who are Members in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; 32
Appears in 1 contract
Samples: Limited Liability Company Agreement (Newtek Business Services Corp.)
Wind Down. (a) Upon the dissolution of the Company, the Company shall be liquidated in accordance with this Article 8 and the Act. The liquidation shall be conducted and supervised by the Board Members (acting through the Committee) in the same manner provided by Article VII 6 with respect to the operation of the Company during its term; provided provided, that in the case of a dissolution and winding up of the Company pursuant to Sections 9.02(cSection 8.2(d) or 9.02(dSection 8.2(e), the Member that elects the such dissolution and winding up (or in the case of a full withdrawal of a Member under Section 9.02(c8.2(e), the non-withdrawing Member) may elect further, by written notice to the other MemberMembers, to exercise as liquidating agent all of the rights, powers, powers and authority with respect to the assets and liabilities of the Company in connection with the liquidation of the Company, to the same extent as the Board Members (acting through the Committee) would have during the term of the Company.
. In the case of a dissolution and winding up of the Company, subject to and without limiting any provision of this Agreement, the Members shall use commercially reasonable efforts to complete, and to cause the Company and the Administrative Agent to complete, the liquidation as set forth in this Section 8.3 within two (b2) From and after years from the date on which an event set forth in Section 9.02 8.3 becomes effective (which, if such liquidation has not been completed by such time, may be extended by Prior Committee Approval for purposes up to an additional twelve (12) months).
(b) From and after the earlier of Section 9.02, shall be deemed to be the date on which an event set forth in Section 8.2 becomes effective or the written notice referenced therein is delivered by one Member to the other Member)Company’s investment period as set forth in Section 8.1 ends, the Company shall cease to make Investments after that date, except for (i) Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet, sheet or letter of intent, or definitive legal documents under which less than all advances have been made) on or before such effective date, date and (ii) at the election of the Board by Board Approval within three Members (3) business days after receipt by acting through the Board of written notice of the availability of the election from any Member, any Investment in a Portfolio Company in which the Company then has an Investment in which the Company participates, provided that the election shall not apply to any Investment in connection with a sale or other Change of Control of the Portfolio Company or a refinancing of the Company’s prior Investment in the Portfolio CompanyCommittee). Capital calls against the Capital Commitment of the Members shall cease from and after the such effective date; provided that capital calls against the Capital Commitment of the Members may continue to fund the allocable share of Investments in which the Company continues to participate (as set forth in the 31
(c) Distributions to the Members during the winding down of the Company shall be made no less frequently than quarterly to the extent consisting of a Member’s allocable share of cash and cash equivalents, after taking into account reasonable reserves deemed appropriate by Board Approval (or in the event of a dissolution and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), by a Member that has elected to act as liquidating agent pursuant to Section 9.03(a)), to fund Investments in which the Company continues to participate (as set forth in the immediately preceding paragraphsentence), Expenses and all other obligations (including contingent obligations) of the Company. Unless waived by Board ApprovalSubject to the foregoing, from and after an event in Section 8.2(a) becomes effective, the Company also Members shall withhold ten percent (10%) continue to bear an allocable share of distributions in any calendar year, which withheld amount shall be distributed within sixty (60) days after the completion of the annual audit covering that year. A Member shall remain a member Expenses and other obligations of the Company until all Investments in which the Company participates are repaid or otherwise disposed of, of in the Member’s allocable share of all Expenses and all other obligations (including contingent obligations) of the Company are paid, and all distributions are made under this Agreement, at which time the Member shall have no further rights under this Agreement.
(d) Upon dissolution normal course of the Company, final allocations of all items of Company’s Profit and Loss shall be made in accordance with Section 5.02. Upon dissolution of the Company, the assets of the Company shall be applied in the following order of priority:
(i) To creditors (other than Members) in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; (ii) To creditors who are Members in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; 32activities.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bain Capital Specialty Finance, Inc.)
Wind Down. (a) Upon the dissolution of the Company, the Company shall be liquidated in accordance with this Article 8 and the Act. The liquidation shall be conducted and supervised by the Board Members (acting through the Committee) in the same manner provided by Article VII 6 with respect to the operation of the Company during its term; provided provided, that in the case of a dissolution and winding up of the Company pursuant to Sections 9.02(c8.3(e) or 9.02(d8.3(f), the Member that elects the such dissolution and winding up (or in the case of a full withdrawal of a Member under Section 9.02(c8.3(e), the non-withdrawing Member) may elect further, by written notice to the other MemberMembers, to exercise as liquidating agent all of the rights, powers, powers and authority with respect to the assets and liabilities of the Company in connection with the liquidation of the Company, to the same extent as the Board Members (acting through the Committee) would have during the term of the Company. In the case of a dissolution and winding up of the Company, subject to and without limiting any provision of this Agreement, the Members shall use commercially reasonable efforts to complete, and to cause the Company and the Administrative Agent to complete, the liquidation as set forth in this Section 8.4 within twelve (12) months from the date on which an event set forth in Section 8.4 becomes effective (which, if such liquidation has not been completed by such time, may be extended by Prior Committee Approval for up to an additional twelve (12) months).
(b) From and after the date on which an event set forth in Section 9.02 8.3 becomes effective (which, for purposes of Section 9.02, shall be deemed to be the date on which the written notice referenced therein is delivered by one Member to the other Member)effective, the Company shall cease to make Investments after that date, except for (i) Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet, sheet or letter of intent, or definitive legal documents under which less than all advances have been made) on or before such effective date, date and (ii) at the election of the Board by Board Approval within three Members (3) business days after receipt by acting through the Board of written notice of the availability of the election from any Member, any Investment in a Portfolio Company in which the Company then has an Investment in which the Company participates, provided that the election shall not apply to any Investment in connection with a sale or other Change of Control of the Portfolio Company or a refinancing of the Company’s prior Investment in the Portfolio CompanyCommittee). Capital calls against the Capital Commitment of the Members shall cease from and after the such effective date; provided that capital calls against the Capital Commitment of the Members may continue to fund the allocable share of Investments in which the Company continues to participate (as set forth in the 31immediately preceding sentence), Expenses and all other obligations of the Company. Subject to the foregoing, the Members shall continue to bear an allocable share of Expenses and other obligations of the Company until all Investments in which the Company participates are repaid or otherwise disposed of in the normal course of the Company’s activities.
(c) Distributions to the Members during the winding down of the Company shall be made no less frequently than quarterly to the extent consisting of a Member’s allocable share of cash and cash equivalents, after taking into account reasonable reserves deemed appropriate by Board Approval the Members (acting through the Committee) (or in the event of a dissolution and winding up of the Company pursuant to Sections 9.02(c8.3(e) or 9.02(d8.3(f), by a Member that has elected to act as liquidating agent pursuant to Section 9.03(a8.4(a)), to fund Investments in which the Company continues to participate (as set forth in the immediately preceding paragraph), Expenses and all other obligations (including contingent obligations) of the Company. Unless waived by Board the Members (with Prior Committee Approval), the Company also shall withhold ten five percent (105%) of distributions in any calendar year, which withheld amount shall be distributed within sixty (60) days after the completion of the annual audit covering that such fiscal period ended with or within such calendar year. A Member shall remain a member of the Company until all Investments in which the Company participates are repaid or otherwise disposed of, the Member’s allocable share of all Expenses and all other obligations (including contingent obligations) of the Company are paid, and all distributions are made under this Agreementhereunder, at which time the Member shall have no further rights under this Agreement.
(d) Upon dissolution of the Company, final allocations of all items of Company’s Profit and Loss shall be made in accordance with Section 5.024.2. Upon dissolution of the Company, the assets of the Company shall be applied in the following order of priority:
(i) To creditors (other than Members) in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilitiesthereof), including to establish any reasonable reserves which the Board may by Board ApprovalMembers (acting through the Committee), in its their reasonable judgment, deem necessary or advisable for any contingent, conditional, conditional or unmatured liability of the Company; ;
(ii) To creditors who are Members in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilitiesthereof), including to establish any reasonable reserves which the Board may by Board ApprovalMembers (acting through the Committee), in its their reasonable judgment, deem necessary or advisable for any contingent, conditional, conditional or unmatured liability of the Company;
(iii) To establish any reserves which the Members (acting through the Committee), in their reasonable judgment, deem necessary or advisable for any contingent, conditional or unmatured liability of the Company to Members; 32and
(iv) The balance, if any, to the Members in accordance with Section 5.1(b).
(e) Notwithstanding the foregoing, (i) at any time following January 31, 2025 through the end of the Term, PNNT, or (ii) (A) upon the occurrence of an event described in Sections 8.3(f), the Member that may elect a dissolution and winding up, or (B) in the case of an event described in Section 8.3(e), the Member not subject to such event (PNNT or such Member, as the case may be under the clause (i) or clause (ii) of this Section 8.4(e), the “Electing Member”) may elect alternatively by written notice to the other Member, for a period of twenty (20) business days following the occurrence of such event, to (I) in the case of the foregoing clause (i), offer to purchase the other Member’s or Members’ Entire Interest and all of such other Member’s or Members’ Subordinated Notes or designate a third party to effect such purchase, and (II) in the case of the foregoing clause (ii), purchase the other Member’s or Members’ Entire Interest and all of such other Member’s or Members’ Subordinated Notes or designate a third party to effect such purchase (such election, the “Offer to Purchase”). In the case of an Offer to Purchase pursuant to clause (I) in the immediately foregoing sentence, the purchase price of such offer to purchase shall be at least equal to the net asset value of the sum of such Entire Interest and all of such other Member’s or Members’ Subordinated Notes, calculated in accordance with the Company’s valuation guidelines and, if such other Member or Members accepts such offer to purchase (which it or they may do so in its or their sole discretion), shall be payable in cash within sixty (60) business days thereafter; and in the case of an Offer to Purchase pursuant to clause (II) in the immediately foregoing sentence, the purchase price for such Entire Interest and such Subordinated Notes shall be payable in cash within sixty (60) business days after the Offer to Purchase is delivered to the other Member, and shall be equal to the net asset value of the sum of such Entire Interest and all of such other Member’s or Members’ Subordinated Notes, calculated in accordance with the Company’s valuation guidelines. With respect only to clause (II) in the first sentence of this paragraph, each Member hereby agrees to sell its Entire Interest and all of such Member’s Subordinated Notes to the Electing Member or the third party designated by the Electing Member at such price if the Offer to Purchase is timely exercised by the Electing Member. If the Electing Member does not exercise the Offer to Purchase within the twenty (20)-business day period set forth in this Section 8.4(e) or if the Electing Member or its third-party designee does not purchase the other Member’s or Members’ Entire Interest and all of such other Member’s or Members’ Subordinated Notes within sixty (60) business days after the Offer to Purchase is delivered to such other Member, then the Offer to Purchase (and such other Member’s acceptance of such offer) shall terminate and (x) in the case of an event described in Section 8.3(e), the other Member or Members shall withdraw its or their Entire Interest pursuant to Section 7.2, and the Company shall terminate as provided by this Article 8 or (y) in the case of the occurrence of an event described in Section 8.3(f), the Electing Member shall retain the option to elect the dissolution of the Company pursuant to Section 8.3(e) or 8.3(f), as applicable. After any purchase pursuant to an Offer to Purchase, the other Member or Members shall no longer be a member of the Company, and the Electing Member, or third party designee of the Electing Member that has consummated the purchase, may dissolve or continue the Company as it may determine.
(f) In the event that an audit or reconciliation relating to the fiscal year in which a Member receives a distribution under this Section 8.4 reveals that such Member received a distribution in excess of that to which such Member was entitled, each other Member may, in its discretion, seek repayment of such distribution to the extent that such distribution exceeded what was due to such Member.
(g) Each Member shall be furnished with a statement prepared by the Company’s accountant, which shall set forth the assets and liabilities of the Company as of the date of complete liquidation, and each Member’s share thereof. Upon compliance with the distribution plan set forth in this Section 8.4, the Members shall cease to be such, and either Member may execute, acknowledge and cause to be filed a certificate of cancellation of the Company.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Pennantpark Investment Corp)
Wind Down. (a) Upon the dissolution of the Company, the Company shall be liquidated in accordance with this Article 8 and the Act. The liquidation shall be conducted and supervised by the Board Members (acting through the Committee) in the same manner provided by Article VII 6 with respect to the operation of the Company during its term; provided provided, that in the case of a dissolution and winding up of the Company pursuant to Sections 9.02(cSection 8.2(d) or 9.02(dSection 8.2(e), the Member that elects the such dissolution and winding up (or in the case of a full withdrawal of a Member under Section 9.02(c8.2(e), the non-withdrawing Member) may elect further, by written notice to the other MemberMembers, to exercise as liquidating agent all of the rights, powers, powers and authority with respect to the assets and liabilities of the Company in connection with the liquidation of the Company, to the same extent as the Board Members (acting through the Committee) would have during the term of the Company. In the case of a dissolution and winding up of the Company, subject to and without limiting any provision of this Agreement, the Members shall use commercially reasonable efforts to complete, and to cause the Company and the Administrative Agent to complete, the liquidation as set forth in this Section 8.3 within two (2) years from the date on which an event set forth in Section 8.3 becomes effective (which, if such liquidation has not been completed by such time, may be extended by Prior Committee Approval for up to an additional twelve (12) months).
(b) From and after the date on which an event set forth in Section 9.02 8.2 becomes effective (which, for purposes of Section 9.02, shall be deemed to be the date on which the written notice referenced therein is delivered by one Member to the other Member)effective, the Company shall cease to make Investments after that date, except for (i) Investments which the Company was committed to make in whole or in part (as evidenced by a commitment letter, term sheet, sheet or letter of intent, or definitive legal documents under which less than all advances have been made) on or before such effective date, date and (ii) at the election of the Board by Board Approval within three Members (3) business days after receipt by acting through the Board of written notice of the availability of the election from any Member, any Investment in a Portfolio Company in which the Company then has an Investment in which the Company participates, provided that the election shall not apply to any Investment in connection with a sale or other Change of Control of the Portfolio Company or a refinancing of the Company’s prior Investment in the Portfolio CompanyCommittee). Capital calls against the Capital Commitment of the Members shall cease from and after the such effective date; provided that capital calls against the Capital Commitment of the Members may continue to fund the allocable share of Investments in which the Company continues to participate (as set forth in the 31
(c) Distributions to the Members during the winding down of the Company shall be made no less frequently than quarterly to the extent consisting of a Member’s allocable share of cash and cash equivalents, after taking into account reasonable reserves deemed appropriate by Board Approval (or in the event of a dissolution and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), by a Member that has elected to act as liquidating agent pursuant to Section 9.03(a)), to fund Investments in which the Company continues to participate (as set forth in the immediately preceding paragraphsentence), Expenses and all other obligations (including contingent obligations) of the Company. Unless waived by Board ApprovalSubject to the foregoing, from and after an event in Section 8.2(a) becomes effective, the Company also Members shall withhold ten percent (10%) continue to bear an allocable share of distributions in any calendar year, which withheld amount shall be distributed within sixty (60) days after the completion of the annual audit covering that year. A Member shall remain a member Expenses and other obligations of the Company until all Investments in which the Company participates are repaid or otherwise disposed of, of in the Member’s allocable share of all Expenses and all other obligations (including contingent obligations) of the Company are paid, and all distributions are made under this Agreement, at which time the Member shall have no further rights under this Agreement.
(d) Upon dissolution normal course of the Company, final allocations of all items of Company’s Profit and Loss shall be made in accordance with Section 5.02. Upon dissolution of the Company, the assets of the Company shall be applied in the following order of priority:
(i) To creditors (other than Members) in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; (ii) To creditors who are Members in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; 32activities.
Appears in 1 contract
Samples: Limited Liability Company Agreement (Bain Capital Specialty Finance, Inc.)
Wind Down. (a) Upon the dissolution of the Company, the Company shall be liquidated in accordance with this Article and the Act. The liquidation shall be conducted and supervised by the Board in the same manner provided by Article VII with respect to the operation of the Company during its term; provided that in the case of a dissolution and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), the Member that elects the dissolution and winding up (or in the case of a full withdrawal of a Member under Section 9.02(c), the non-withdrawing Member) may elect further, by written notice to the other Member, to exercise as liquidating agent all of the rights, powers, and authority with respect to the assets and liabilities of the Company in connection with the liquidation of the Company, to the same extent as the Board would have during the term of the Company.
(b) From and after the date on which an event set forth in Section 9.02 becomes effective (which, for purposes of Section 9.02, shall be deemed to be the date on which the written notice referenced therein is delivered by one Member to the other Member), the Company shall cease to make Investments after that date, except for (i) 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 such effective datedate and cannot terminate without penalty, and (ii) at the election of the Board by Board Approval within three (3) business days after receipt by the Board of written notice of the availability of the election from any Member, any Investment in a Portfolio Company in which the Company then has an Investment in which the Company participates, provided that the election shall not apply to any Investment in connection with a sale or other Change of Control of the Portfolio Company or a refinancing of the Company’s prior Investment in the Portfolio Company. Capital calls against the Capital Commitment of the Members shall cease from and after the effective date; provided that capital calls against the Capital Commitment of the Members may continue to fund the allocable share of Investments in which the Company continues to participate (as set forth in the 31
(c) Distributions to the Members during the winding down of the Company shall be made no less frequently than quarterly to the extent consisting of a Member’s allocable share of cash and cash equivalents, after taking into account reasonable reserves deemed appropriate by Board Approval (or in the event of a dissolution and winding up of the Company pursuant to Sections 9.02(c) or 9.02(d), by a Member that has elected to act as liquidating agent pursuant to Section 9.03(a)), to fund Investments in which the Company continues to participate (as set forth in the immediately preceding paragraphsentence), Expenses and all other obligations (including contingent obligations) of the Company. Unless waived by Board ApprovalSubject to the foregoing provisions of this Section 9.03(b), the Company also Members shall withhold ten percent (10%) continue to bear an allocable share of distributions in any calendar year, which withheld amount shall be distributed within sixty (60) days after the completion Expenses and other obligations of the annual audit covering that year. A Member shall remain a member of the Company Company, in proportion to their respective Capital Accounts, until all Investments in which the Company participates are repaid or otherwise disposed of, of in the Member’s allocable share of all Expenses and all other obligations (including contingent obligations) of the Company are paid, and all distributions are made under this Agreement, at which time the Member shall have no further rights under this Agreement.
(d) Upon dissolution normal course of the Company, final allocations of all items of Company’s Profit and Loss shall be made in accordance with Section 5.02. Upon dissolution of the Company, the assets of the Company shall be applied in the following order of priority:
(i) To creditors (other than Members) in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; (ii) To creditors who are Members in satisfaction of liabilities of the Company (whether by payment or by the making of reasonable provision for payment of those liabilities), including to establish any reasonable reserves which the Board may by Board Approval, in its reasonable judgment, deem necessary or advisable for any contingent, conditional, or unmatured liability of the Company; 32activities.
Appears in 1 contract
Samples: Securities Purchase Agreement (Newtek Business Services Corp.)
