Andalusian Credit Company, LLC Amended and Restated Limited Liability Company Agreement Dated as of December 21, 2023
Exhibit 3.3
Andalusian Credit Company, LLC
Amended and Restated
Limited Liability Company Agreement
Dated as of December 21, 2023
Table of Contents
Page
ARTICLE 1 — DEFINITIONS | 1 | ||
Section 1.1 | Definitions | 1 | |
ARTICLE 2 — ORGANIZATION; POWERS | 1 | ||
Section 2.1 | Formation of Limited Liability Company | 1 | |
Section 2.2 | Purpose; Powers | 2 | |
ARTICLE 3 — MEMBERS, VOTING, AND CONSENTS | 2 | ||
Section 3.1 | Names, Addresses and Subscriptions | 2 | |
Section 3.2 | Status of Members | 2 | |
Section 3.3 | Admission of New Members; Capital Contributions | 3 | |
Section 3.4 | Management and Control of Company | 4 | |
Section 3.5 | Activities of Members | 9 | |
Section 3.6 | Meetings of Members | 10 | |
Section 3.7 | Waiver of Notice | 11 | |
Section 3.8 | Member Voting and Consents | 11 | |
Section 3.9 | Advance Notice of Member Nominees for Board Member | 11 | |
ARTICLE 4 — INVESTMENTS AND ACTIVITIES | 11 | ||
Section 4.1 | Borrowing | 11 | |
Section 4.2 | Distributions | 12 | |
ARTICLE 5 — CERTAIN RIGHTS AND PREFERENCES OF SHARES | 13 | ||
Section 5.1 | Classes of Shares | 13 | |
Section 5.2 | Shares | 13 | |
ARTICLE 6 — FEES AND EXPENSES; ADVISORY AGREEMENT; ADMINISTRATION AGREEMENT | 13 | ||
Section 6.1 | Company Expenses | 13 | |
Section 6.2 | Investment Advisory Agreement | 13 | |
Section 6.3 | Administration Agreement | 13 | |
ARTICLE 7 — CAPITAL OF THE COMPANY | 13 | ||
Section 7.1 | Capital Commitments | 13 | |
Section 7.2 | Capital Contributions | 14 |
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Table of Contents
(continued)
Page
ARTICLE 8 — DURATION OF THE COMPANY | 16 | ||
Section 8.1 | Term and Termination of the Company | 16 | |
Section 8.2 | [Reserved.] | 16 | |
Section 8.3 | Liquidity Event | 17 | |
Section 8.4 | Business Combinations | 17 | |
ARTICLE 9 — LIQUIDATION OF ASSETS ON DISSOLUTION | 17 | ||
Section 9.1 | General | 17 | |
Section 9.2 | Liquidating Distributions; Priority | 17 | |
Section 9.3 | Duration of Liquidation | 18 | |
Section 9.4 | Liability for Returns | 18 | |
Section 9.5 | Post-Dissolution Investments | 18 | |
ARTICLE 10 — LIMITATIONS ON TRANSFERS OF SHARES; REQUIRED TRANSFERS | 18 | ||
Section 10.1 | Transfers of Shares | 18 | |
Section 10.2 | Admission of Substituted Members | 19 | |
ARTICLE 11 — LIMITATION OF LIABILITY AND INDEMNIFICATION | 19 | ||
Section 11.1 | Limitation of Liability | 19 | |
Section 11.2 | Indemnification | 20 | |
Section 11.3 | Insurance | 21 | |
Section 11.4 | Limitation by Law | 22 | |
ARTICLE 12 — AMENDMENTS | 22 | ||
Section 12.1 | Amendments | 22 | |
ARTICLE 13 — ADMINISTRATIVE PROVISIONS | 22 | ||
Section 13.1 | Keeping of Accounts and Records; Certificate of Formation; Administrator | 22 | |
Section 13.2 | Notices | 22 | |
Section 13.3 | Accounting Provisions | 23 | |
Section 13.4 | Tax Information | 23 | |
Section 13.5 | General Provisions | 24 |
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Table of Contents
(continued)
Page
Signature Pages of Members | 32 |
Appendix I Definitions | I-1 |
Schedule A Schedule of Managers | A-1 |
Schedule B Schedule of Officers | B-1 |
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AMENDED AND RESTATED
Limited Liability Company Agreement
Of
Andalusian Credit Company, LLC
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of Andalusian Credit Company, LLC (the “Company”) is made and entered into as of December 21, 2023 by and among the Company, Andalusian Credit Partners, LLC, a Delaware limited liability company (the “Initial Member,” the “Adviser,” or “ACP”), as a Member, and the other Persons listed in the books and records of the Company as Members of the Company. This Agreement amends and restates the previous Limited Liability Company Agreement of the Company, dated as of October 23, 2023 (the “Original Agreement”).
WHEREAS, pursuant to Section 12.1(a) of the Original Agreement, the Board wishes to amend and restate the Original Agreement in its entirety and enter into this Agreement, which shall be binding on the Members.
NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree to continue the Company and hereby amend and restate the Original Agreement, which is replaced and superseded in its entirety by this Agreement, as follows:
ARTICLE 1 — DEFINITIONS
Section 1.1 Definitions. Capitalized terms used herein and not otherwise defined have the meanings assigned to them in APPENDIX I hereto. APPENDIX I also indicates other sections of this Agreement in which certain other terms used in this Agreement are defined.
ARTICLE 2 — ORGANIZATION; POWERS
Section 2.1 Formation of Limited Liability Company.
(a) Formation. The Company was formed as a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. §18-101, et seq.) (as amended from time to time, the “Delaware Act”) pursuant to a Certificate of Formation, which was filed with the Secretary of State of the State of Delaware on October 17, 2022 (as amended from time to time hereafter, the “Certificate”) and from its formation was governed by the Original Agreement.
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(b) Admission. Each Person who is to be admitted as a Member pursuant to this Agreement shall accede to this Agreement by, and shall be admitted to the Company as a Member upon, executing a Subscription Agreement or other written document pursuant to which such Person agrees to become a Member and be bound by this Agreement following the Company’s acceptance of such document, and a counterpart signature page to this Agreement, which shall not require the consent or approval of any other Member. The Company shall make any necessary filings with the appropriate governmental authorities and take such actions as are necessary under applicable law to effectuate such admission. Each such agreement and/or document described in this Section 2.1(b) may be executed on behalf of a Member by an authorized representative of the Company, as attorney-in-fact for such Member, with the same force and effect as if executed directly by the Member.
(c) Name. The name of the Company is Andalusian Credit Company, LLC.
(d) Address. The registered office of the Company in the State of Delaware, and the registered agent for service of process on the Company at such address, shall be as specified in the Certificate or as is designated by the Member from time to time in accordance with the Delaware Act. The principal place of business of the Company shall be 00 Xxxx X. Xxxxxxx Xxxxxxx, Xxxxx Xxxxx, Xxx Xxxxxx 00000, or such other place as the Company may determine from time to time.
Section 2.2 Purpose; Powers. In furtherance of the investment objectives of the Company, the Company may engage in any lawful act or activity for which limited liability companies may be formed under the laws of the State of Delaware and shall have all the powers available to it as a limited liability company formed under the laws of the State of Delaware. The activities of the Company will be limited to actions permitted for a business development company (“BDC”) that operates as a regulated investment company (“RIC”).
ARTICLE 3 — MEMBERS, VOTING, AND CONSENTS
Section 3.1 Names, Addresses and Subscriptions. The name, address and e-mail address, the number of Shares held and the Capital Contribution (as defined below) of each Member are set forth in the books and records of the Company. The Company shall maintain such books and records in a manner consistent with this Agreement and shall cause such books and records to be revised to reflect (a) the admission of any additional or substituted Member occurring pursuant to the terms of this Agreement, (b) the withdrawal, or partial withdrawal, of any Member pursuant to the terms of this Agreement, (c) any change in the identity, address or e-mail address of a Member, or (d) any changes in the number of Shares owned or the Member’s Capital Contribution occurring pursuant to the terms of this Agreement.
Section 3.2 Status of Members.
(a) Limited Liability. No Member or Former Member (as defined below), in its capacity as such, shall be liable for any of the debts, liabilities or obligations of the Company except as provided in this Section 3.2(a) and to the extent otherwise required by law. Each Member and Former Member shall be required to pay to the Company (i) any Capital Contributions that it has agreed to make to the Company pursuant to this Agreement or the applicable Subscription Agreement; and (ii) the unpaid balance of any other payments that it is expressly required to make to the Company pursuant to this Agreement or pursuant to the applicable Subscription Agreement, as the case may be.
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As used in this Agreement, “Former Members” refers to such Persons who hereafter, from time to time, cease to be Members pursuant to the terms and provisions of this Agreement.
(b) Effect of Death, Dissolution or Bankruptcy. Upon the death, incompetence, bankruptcy, insolvency, liquidation or dissolution of a Member, the rights and obligations of such Member under this Agreement, to the maximum extent permitted by law, shall inure to the benefit of, and shall be binding upon, such Member’s successor(s), estate or legal representative. Each such Person shall be treated as provided in the second sentence of Section 10.2(b) unless and until such Person is admitted as a substituted Member pursuant to Section 10.2. Any Transfer of the Shares so acquired by such successor, estate or legal representative shall be subject to the requirements of Article 10.
(c) No Control of Company. Except as otherwise provided herein, no Member shall have the right or power to: (i) withdraw its Capital Contribution to the Company; (ii) to the maximum extent permitted by law, cause the dissolution and winding up of the Company; or (iii) demand property in return for its Capital Contributions. No Member, in its capacity as such, shall take any part in the control of the affairs of the Company, undertake any transactions on behalf of the Company, or have any power to sign for or otherwise to bind the Company.
Section 3.3 Admission of New Members; Capital Contributions.
(a) Subsequent Closings. The Company expects to hold closings subsequent to the Initial Closing Date (each date on which a subsequent closing is held, a “Subsequent Closing Date”) and issue additional Shares (including Shares of any New Class (as defined below)) to any Member (including any Additional Member (as defined below)) on terms and conditions as determined by the Board (as defined below); provided, however, that no Member shall be required to purchase such additional Shares. Members will be required to fund drawdowns to purchase additional Shares of the Company up to the amount of their respective Capital Commitments each time the Company delivers a drawdown notice, which will be at least ten (10) Business Days prior to funding (“Drawdown Notice”). The Company intends to solicit subscriptions for additional Capital Commitments for a period of five years from October 31, 2023 (the date that the Company first issued a Drawdown Notice, the “Initial Investment Period”), after which the Company expects to conduct a Liquidity Event, as defined below. Investment Period may be extended by the Board as it may deem appropriate.
If the Company enters into a Subscription Agreement with one or more investors after the initial capital drawdown from investors (the “Initial Drawdown” and the date on which the Initial Drawdown occurs, the “Initial Drawdown Date”), each such investor may, at the discretion of the Board, be required to make purchases of Shares (each, a “Catch-Up Purchase”) on one or more dates to be determined by the Company. The aggregate purchase price of the Catch-Up Purchases will be equal to an amount necessary to ensure that, upon payment of the aggregate purchase price, such investor will have contributed the same percentage of its Capital Commitment to the Company as all Members whose subscriptions were accepted at previous closings. Catch-Up Purchases will be made at a per-share price as determined by our Board (including any committee thereof), which price will be determined prior to the issuance of such Shares and in accordance with the limitations under Section 23 of the Investment Company Act. In order to more fairly allocate organizational and other expenses among all of our Members, investors subscribing after the Initial Drawdown may be required to pay a price per share above net asset value reflecting a variety of factors, including, without limitation, the total amount of our organizational and other expenses amortized and/or incurred between the date of the Initial Drawdown and the relevant subsequent capital drawdown.
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In addition to all legal remedies available to the Company, failure by a Member to purchase additional Shares when capital is called in respect of a Member’s Capital Commitment will (following a cure period of seven (7) Business Days) result in that Member being subject to certain default provisions set forth in Section 7.2(e) of this Agreement. Defaulting Members may also forfeit their right to participate in purchasing additional Shares on any future drawdown date or otherwise participate in any future investments in Shares.
(b) Additional Members. One or more additional Members of any New Class or of any existing class of Shares (each an “Additional Member”) may be admitted by the Board into the Company at any time by acquiring Shares in accordance with this Agreement. Any Shares acquired by an Additional Member shall be Shares or Shares of a New Class, as determined by the Board in its discretion. In furtherance of the foregoing, the Members acknowledge and agree that the Company anticipates issuing Shares and/or Shares of a New Class to certain Persons in connection with subsequent closings as set forth in Section 3.3(a). Prior to the admission of any Additional Member, such Additional Member shall execute a written agreement pursuant to which such Additional Member shall agree to be bound by all of the terms and provisions of this Agreement applicable to Members and shall deliver such additional documentation to the Company as the Board shall reasonably require to admit such Additional Member to the Company.
Section 3.4 Management and Control of Company.
(a) Board of Managers.
(i) The number of members of the Company’s board of managers (each a “Manager” and collectively, the “Board of Managers” or the “Board”) will be set by the Board. The affirmative vote of a plurality of the votes cast by Members present in person or by proxy at a meeting of Members held for the purpose of electing a nominee to the Board of Managers and entitled to vote at such meeting is required to elect a nominee to the Board of Managers. The Board may amend the required vote to elect a nominee to the Board of Managers. Managers need not be Members. The Board may designate a Chair of the Board (the “Chair of the Board”), who shall preside over the meetings of the Board of Managers and meetings of the Members, lead the Board of Managers in fulfilling its responsibilities as set forth in this Agreement, and determine the agenda and perform all other duties and exercise all other powers which are or from time to time may be delegated to him or her by the Board of Managers. The Board may permit a third-party observer, including a representative of a Member, to attend a Board of Managers meeting. In the absence of the Chair of the Board, meetings of the Board of Managers and meetings of the Members shall be presided over by the principal executive officer of the Company to the extent he or she is a Manager, or in the absence of the Chair of the Board of Managers and the principal executive officer, by such other person as the Board of Managers may designate or the Managers present may select.
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(ii) Regular meetings of the Board may be held at such places and times as shall be determined from time to time by the Board. Special meetings of the Board may be called by the principal executive officer or a majority of the entire Board of Managers. Notice thereof stating the place, date and hour of the meeting shall be given to each Manager either by mail not less than forty-eight (48) hours before the date of the meeting, by telephone, facsimile or e-mail on twenty-four (24) hours’ notice, or on such shorter notice as the person or persons calling such meeting may deem necessary or appropriate under the circumstances. Notice of any special meeting of the Board of Managers shall be delivered personally or by telephone, electronic mail, facsimile transmission, U.S. mail or courier to each Manager at his or her business or residence address. Notice by personal delivery, telephone, electronic mail or facsimile transmission shall be given at least twenty-four (24) hours prior to the meeting. Notice by U.S. mail shall be given at least three (3) days prior to the meeting. Notice by courier shall be given at least two (2) days prior to the meeting. Telephone notice shall be deemed to be given when the Manager or his or her agent is personally given such notice in a telephone call to which the Manager or his or her agent is a party. Electronic mail notice shall be deemed to be given upon transmission of the message to the electronic mail address given to the Company by the Manager. Facsimile transmission notice shall be deemed to be given upon completion of the transmission of the message to the number given to the Company by the Manager and receipt of a completed answer-back indicating receipt. Notice by U.S. mail shall be deemed to be given when deposited in the U.S. mail properly addressed, with postage thereon prepaid. Notice by courier shall be deemed to be given when deposited with or delivered to a courier properly addressed. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the Board of Managers need be stated in the notice, unless specifically required by statute or this Agreement. Unless otherwise indicated in the notice thereof, any and all business may be transacted at a special meeting.
(iii) A majority of the total number of Managers shall constitute a quorum for the transaction of business. Except as otherwise provided by law or by this Agreement, an act of the Board of Managers requires the vote of a majority of Members present in-person at any meeting of the Members or via written consent. In the absence of a quorum, a majority of the Managers present thereat may adjourn such meeting to another time and place. Notice of such adjourned meeting need not be given if the time and place of such adjourned meeting are announced at the meeting so adjourned.
(iv) Unless otherwise restricted by this Agreement, any one or more members of the Board or any committee thereof may participate in a meeting of the Board or such committee by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can be heard and hear each other simultaneously. Participation by such means shall constitute presence in person at a meeting.
(v) Unless otherwise restricted by this Agreement, any action required or permitted to be taken at any meeting of the Board or of any committee thereof may be taken without a meeting if all members of the Board or any committee thereof, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with the minutes of proceedings of the Board or committee; provided, however, that, absent applicable Securities and Exchange Commission (“SEC”) exemptive relief, this Section 3.4(a)(v) shall not apply to any action of the Board that requires the vote of the Managers to be cast in person at a meeting pursuant to the Investment Company Act.
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(vi) As of the date of this Agreement, the names of Managers are set forth on SCHEDULE A. Each Manager will hold office until his or her successor is duly elected and qualifies, or until his or her death, resignation, retirement, disqualification or removal.
(vii) A majority of the Managers will at all times consist of Managers who are not “interested persons” (as defined in Section 2(a)(19) of the Investment Company Act) (the “Independent Board Members”).
(viii) Any Manager may resign at any time by submitting his or her written resignation to the Board or secretary of the Company. Such resignation shall take effect at the time of its receipt by the Company unless another time be fixed in the resignation, in which case it shall become effective at the time so fixed. The acceptance of a resignation shall not be required to make it effective. Any or all of the Board members may be removed by the affirmative vote of a majority of the full Board. Any Manager may be removed with or without cause by a majority vote of the Board then in office.
(ix) Except as otherwise provided by applicable law, including the Investment Company Act, any newly created manager position on the Board that results from an increase in the number of Board members, and any vacancy occurring in the Board that results from the death, resignation, retirement, disqualification or removal of a Board member or other cause, shall be filled by exclusively by the appointment and affirmative vote of a majority of the remaining Board members in office. Any Board member elected to fill a vacancy or newly created manager position on the Board shall hold office for the remainder of the full term of such position in which the vacancy occurred and until a successor is duly elected and qualified, or until his or her death, resignation, retirement, disqualification or removal.
(x) Subject to the limitations of Section 17(h) of the Investment Company Act, a member of the Board, or a member of any committee designated by the Board shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Company and upon such information, opinions, reports or statements presented to the Company by any of the Officers (as defined below) or employees, or committees of the Board, or by any other person as to matters the member reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company.
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(xi) Classes of Board of Managers. Prior to an Exchange Listing, the Board of Managers shall consist of one class. Immediately prior to an Exchange Listing, the Board of Managers shall be divided into three classes, designated Class I, Class II and Class III, as nearly equal in number as possible, and the term of office of all Class I, Class II and Class III Managers shall expire one year, two years and three years, respectively, from the date on which the Board was classified. In all cases, each Manager’s term shall extend until his or her successor shall be elected and shall qualify or until his or her earlier death, resignation, retirement, disqualification or removal. Additional positions on the Board resulting from an increase in the number of Managers shall be apportioned among the classes as equally as possible. At each meeting of Members, a number of Managers equal to the number of Managers of the class whose term expires at the time of such meeting (or, if less, the number of Managers properly nominated and qualified for election) shall be elected to hold office until the three (3) year anniversary of such election. At each election, Managers chosen to succeed those whose terms then expire shall be of the same class as the Managers they succeed, unless by reason of any intervening changes in the authorized number of Managers, the Board shall designate one or more Manager positions whose term then expires as Manager positions of another class in order to more nearly achieve equality of number of Managers among the classes. Notwithstanding that the three classes shall be as nearly equal in number of Managers as possible, in the event of any change in the authorized number of Managers, each Manager then continuing to serve as such shall nevertheless continue as a Manager of the class of which such Manager is a member until the expiration of his or her current term, or his or her prior death, resignation or removal. If any newly created Manager position may, consistently with the provision that the three classes shall be as nearly equal in number of Managers as possible, be allocated to any class, the Board shall allocate it to that of the available class whose term of office is due to expire at the earliest date following such allocation.
(b) Committees of Board of Managers.
(i) The Board may designate one or more committees, including but not limited to, an Audit Committee (the “Audit Committee”), a Nominating and Corporate Governance Committee (the “Nominating and Corporate Governance Committee”), and an Independent Board Members Committee (the “Independent Board Members Committee”), each such committee to consist of one or more of the Board members of the Company.
(ii) The Audit Committee will be responsible for selecting the Company’s independent registered public accounting firm, reviewing with such independent registered public accounting firm the planning, scope and results of their audit of the Company’s financial statements, preapproving the fees for services performed, reviewing with the independent registered public accounting firm the adequacy of internal control systems, reviewing the Company’s annual financial statements and periodic filings, overseeing internal audit staff, if any, and receiving the Company’s audit reports and financial statements. At least one member of the Audit Committee will be designated by the Board as an “audit committee financial expert” under the rules of the SEC. Each member of the Audit Committee shall be an Independent Board Member.
(iii) The Nominating and Corporate Governance Committee will be responsible for selecting, researching and nominating qualified nominees to be elected to the Board, selecting qualified nominees to fill any vacancies on the Board or a committee of the Board (consistent with criteria approved by the Board), developing and recommending to the Board a set of corporate governance principles applicable to the Company and overseeing the evaluation of the Board and management. Each member of the Nominating and Corporate Governance Committee shall be an Independent Board Member.
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(iv) The Independent Board Members Committee will be responsible for assessing the flow of information between the Company’s management and the Board and overseeing the annual approval process of the Investment Advisory Agreement. The Independent Board Members Committee is also responsible for addressing conflict of interest matters, including but not limited to the approval, as applicable, of certain co-investment transactions as may be contemplated by the Company’s co-investment exemptive relief, review, negotiate and approve the Advisory Agreement, directing the retention of any consultants that the Board may deem necessary or appropriate, review and approve the Administration Agreement (as defined below) with the Company’s administrator and undertake such other duties and responsibilities as may from time to time be delegated by the Board.
(v) Any such committee, to the extent provided in the resolution of the Board establishing such committee, shall have and may exercise all the powers and authority of the Board in the management of the business and affairs of the Company. All committees of the Board shall keep minutes of their meetings and shall report their proceedings to the Board when requested or required by the Board. Each committee of the Board may fix its own rules of procedure and shall hold its meetings as provided by such rules, except as may otherwise be provided by a resolution of the Board designating such committee. Unless otherwise provided in such a resolution, the presence of the greater of one-third or two (2) members of the committee shall be necessary to constitute a quorum unless the committee shall consist of one or two (2) members, in which event one member shall constitute a quorum, and all matters shall be determined by a majority vote of the members present at a meeting of the committee at which a quorum is present. Unless otherwise provided in such a resolution, in the event that a member and that member’s alternate, if alternates are designated by the Board, of such committee is or are absent or disqualified, the member or members thereof present at any meeting and not disqualified from voting, whether or not such member or members constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member.
(c) Management by the Board.
(i) The business and affairs of the Company shall be managed by or under the direction of the Board, except as may be otherwise provided by law. Unless otherwise specified in this Agreement, consent or approval by the Company shall be determined by the Board.
(ii) The Board may appoint and elect (as well as remove or replace with or without cause), as it deems necessary, a President, a Chief Executive Officer, a Chief Operating Officer, a Treasurer, a Chief Financial Officer, a Secretary, a Chief Compliance Officer and any other officer of the Company the Board determines to be necessary or advisable (collectively, the “Officers”). The names of each Officer and such Officer’s position as of the date hereof are listed on SCHEDULE B.
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(iii) The Officers shall perform such duties and may exercise such powers as may be assigned to them by the Board.
(iv) Unless the Board decides otherwise, if the title of any person authorized to act on behalf of the Company under this Section 3.4(c) is one commonly used for officers of a business corporation formed under the Delaware General Corporation Law, the assignment of such title shall constitute the delegation to such person of the authority and duties that are normally associated with that office, subject to any specific delegation of, or restriction on, authority and duties made pursuant to this Section 3.4(c). Any number of titles may be held by the same person. Any delegation pursuant to this Section 3.4(c) may be revoked at any time by the Board.
(v) The Board may authorize any Person, including any Officer, to sign on behalf of the Company.
(d) Powers of Board. Except as otherwise explicitly provided herein, the Board shall have the power on behalf and in the name of the Company to implement the objectives of the Company and to exercise any rights and powers the Company may possess, including the power to cause the Company to (i) make any elections available to the Company under applicable tax or other laws, (ii) make any investments permitted under this Agreement, (iii) satisfy any Company obligations, or (iv) make any disposition of Company assets. Notwithstanding any other provision of this Agreement, without the consent of any Member or other Person being required, subject to the Investment Company Act and applicable law, the Company is hereby authorized to execute, deliver and perform, and the Officers are, and each hereby is, authorized to execute and deliver, (x) a Subscription Agreement with each Member, (y) the Investment Advisory Agreement, and (z) any amendment of any such document (to the extent such amendment is approved in accordance with the terms of the relevant agreement and is consistent with the terms of this Agreement) and any other agreement, document or other instrument contemplated thereby or related thereto (to the extent that such other agreement, document or other instrument is consistent with the terms of the relevant agreement or this Agreement). Such authorization shall not be deemed a restriction on the power of the Board to cause the Company to enter into other documents.
Section 3.5 Activities of Members. Notwithstanding any duty otherwise existing at law or in equity, but subject to the provisions of this Agreement and applicable laws (including the Investment Company Act), any Member and its respective direct and indirect partners, members, stockholders, officers, directors, managers, trustees, employees, agents and Affiliates may invest, participate, or engage in (for their own accounts or for the accounts of others), or may possess an interest in, other financial ventures and investment and professional activities of every kind, nature and description, independently or with others, whether now existing or hereafter acquired or initiated, including but not limited to: management of other investment vehicles; investment in, financing, acquisition or disposition of securities; investment and management counseling; providing brokerage and investment banking services; or serving as officers, directors, managers, consultants, advisers or agents of other companies, partners of any partnership, members of any limited liability company or trustees of any trust (and may receive fees, commissions, remuneration or reimbursement of expenses in connection with these activities), whether or not such activities may conflict with any interest of the Company or any of the Members. The fact that a Member may encounter opportunities to purchase, otherwise acquire, lease, sell or otherwise dispose of investment assets, other assets or other business ventures and may take advantage of such opportunities itself or introduce such opportunities to entities in which it has or does not have any interest shall not subject such Member to liability to the Company or to any of the other Members on account of the lost opportunity. Nothing in this Agreement shall be deemed to prohibit any Member or any Affiliate of any Member from dealing with, or otherwise engaging in business with, any other Member or any Person transacting business with the Company or any Portfolio Company. Neither the Company nor any Member shall have any rights, solely by virtue of this Agreement, in or to any activities permitted by this Section 3.5 or to any fees, income, profits or goodwill derived from such activities.
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Section 3.6 Meetings of Members.
(a) Place of Meetings. All meetings of the Members for any purpose shall be at any such place as shall be designated from time to time by the Board and stated in the notice of meeting or in a duly executed waiver of notice thereof.
(b) Meetings. Meetings of Members may be called by the Board, the Chair of the Board or the principal executive officer and by the holders of at least 10% of the Company’s Shares, in accordance with this Agreement. The Board may postpone, adjourn, reschedule or cancel any meeting of Members previously scheduled.
(c) Business at Meetings. For each meeting, only business specified in the Company’s notice of meeting (or any supplement thereto) may be conducted at such meeting.
(d) Quorum; Adjournments. Unless otherwise required by law, Members holding a majority of the Shares entitled to vote thereat, present in person or represented by proxy, shall constitute a quorum for the transaction of business at all meetings. Abstentions will be treated as Shares that are present and entitled to vote for purposes of determining the number present and entitled to vote with respect to any particular proposal but will not be counted as a vote in favor of such proposal. Any matter properly before the meeting or to be acted on via written consent shall be deemed approved if it receives the affirmative vote of a majority of those present and/or entitled to vote on such matter, as applicable, except as otherwise required by applicable law.
If such quorum shall not be present or represented by proxy at any meeting, then either the chair of the meeting or Members entitled to vote thereat (present in person or represented by proxy) shall have the power to adjourn a vote from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented by proxy. At such adjourned meeting at which a quorum shall be present or represented by proxy, any business may be transacted which might have been transacted at the meeting as originally called. If the adjournment is for more than thirty (30) days, or, if after adjournment a new record date is set, then a notice of the adjourned meeting shall be given to each Member entitled to vote at the meeting.
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(e) Remote Participation. Unless otherwise required by law, Members may participate in a meeting of the Members by means of a conference telephone or other communications equipment by means of which all persons participating in the meeting can be heard and hear each other simultaneously, and participation by such means shall constitute presence in person at a meeting.
Section 3.7 Waiver of Notice. A written waiver of any notice, signed by a Member or Board member, or waiver by electronic transmission by such person, whether given before or after the time of the event for which such notice is to be given, shall be deemed equivalent to the notice required to be given to such person. Neither the business nor the purpose of any meeting need be specified in such a waiver. Attendance at any meeting (in person or by remote communication) shall constitute waiver of notice, except attendance for the express purpose at the beginning of the meeting to the transaction of any business because the meeting is not lawfully called or convened.
ARTICLE 4 — INVESTMENTS AND ACTIVITIES
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In furtherance thereof and without limiting the generality thereof, the Company may, in each case subject to such other conditions as the Company may reasonably determine, (a) authorize any Lender or holders of such other obligations or guarantees, including any agent or trustee acting on their behalf, as agent and on behalf of the Company, or in such other capacity as the Company may specify (i) to exercise any right or remedy of the Company under this Agreement in respect of any Asset and (ii) to enforce the Members’ obligations under their respective Subscription Agreements and this Agreement, and (b) take any other action the Company reasonably determines to be necessary for the purpose of providing such credit support (collectively, clauses (a) and (b), the “Lender Powers”); provided, that any exercise of such Lender Powers shall be made in accordance with this Agreement. In addition, the Company is hereby authorized to provide to or receive from any Lender or holders of such indebtedness, or holders of other obligations or guarantees, including any agent or trustee acting on their behalf, financial information related to such Member and other documentation reasonably and customarily required to incur or assume such indebtedness, subject to applicable law, and in connection therewith, each Member hereby agrees to cooperate with the Company with respect to the provision of such information and documentation.
Subject to applicable law, the Company is authorized to enter into and maintain guarantees and other credit support of Financings of subsidiaries and other Persons in which the Company has an interest or otherwise be liable on a joint and several basis and any such obligations in connection therewith may be cross-guaranteed as the Board determines is necessary or convenient in the conduct or promotions of the activities or business of the Company.
Section 4.2 Distributions. The Board shall have the authority and discretion to declare distributions (both in cash and pursuant to the DRP), subject to applicable law. The Company will distribute all amounts necessary to continually qualify as a RIC. Anything in this Agreement to the contrary notwithstanding, no distribution shall be made to any Member if, and to the extent that, such distribution would not be permitted under the Delaware Act. Any distribution of securities shall be subject to such conditions and restrictions as the Board determines are required or advisable to ensure compliance with applicable law. In furtherance of the foregoing, the Board may require that the Members execute and deliver such documents as the Board may deem necessary or appropriate to ensure compliance with all federal and state securities laws that apply to such distribution.
Upon liquidation of the Company pursuant to Article 9, the Company’s remaining net assets will be distributed among Members equally on a per Share basis (subject to the payment of the fees pursuant to the Investment Advisory Agreement, the reimbursement of expenses and other fees pursuant to the Administration Agreement, and other Company expenses).
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ARTICLE 5 — CERTAIN RIGHTS AND PREFERENCES OF SHARES
ARTICLE 6 — FEES AND EXPENSES; ADVISORY AGREEMENT; ADMINISTRATION AGREEMENT
ARTICLE 7 — CAPITAL OF THE COMPANY
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Section 7.2 Capital Contributions.
14
15
The Member agrees that this Section 7.2(e) is solely for the benefit of the Company and shall be interpreted by the Company against the Defaulting Member in the discretion of the Company. The Member further agrees that the Member has no right to, and shall not seek to, enforce this Section 7.2(e) against the Company or any other investor in the Company.
ARTICLE 8 — DURATION OF THE COMPANY
Section 8.2 [Reserved.]
16
ARTICLE 9 — LIQUIDATION OF ASSETS ON DISSOLUTION
Section 9.2 Liquidating Distributions; Priority.
(i) First, to pay the costs and expenses of dissolution and liquidation; to pay or provide for the satisfaction of the Company’s debts and other liabilities, including obligations to creditors in accordance with the Delaware Act; and to establish any reserves which the liquidator may deem necessary or advisable for any contingent or unmatured liability of the Company, including the payment of the fees pursuant to the Investment Advisory Agreement and the reimbursement of expenses and other fees pursuant to the Administration Agreement; and
(ii) Thereafter, among the Members equally on a per Share basis.
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ARTICLE 10 — LIMITATIONS ON TRANSFERS OF SHARES; REQUIRED TRANSFERS
Section 10.1 Transfers of Shares.
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Section 10.2 Admission of Substituted Members.
ARTICLE 11 — LIMITATION OF LIABILITY AND INDEMNIFICATION
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(i) by reason of any act or omission or alleged act or omission (even if negligent) performed or omitted to be performed on behalf of the Company, its Adviser and/or any of their respective Affiliates or otherwise in connection with the business of the Company or its investment activities;
(ii) by reason of the fact that such Protected Person is or was acting (or omitting to act) in connection with the business of the Company or its investment activities or its investment adviser in any capacity or that it is or was serving at the request of the Company as a direct or indirect partner, stockholder, member, director, officer, employee, manager, trustee, Specified Agent and/or legal representative of any Person, including any Subsidiary or any Issuer; or
(iii) by reason of any other act or omission or alleged act or omission (even if negligent) arising out of or in connection with the activities of the Company;
unless, in each case, such Liability (x) was determined by a court of competent jurisdiction to have resulted from such Protected Person’s own fraud, willful malfeasance or gross negligence or (y) results from claims or proceedings arising solely out of internal disputes between or among direct or indirect partners of the Adviser. In addition, the Company may indemnify and hold harmless other third-party service providers of the Company unaffiliated with the Adviser only to the extent set forth in the applicable agreement with the service provider.
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(c) Survival and Limitation of Protection.
(i) The provisions of this Section 11.2 shall continue to afford protection to each Protected Person regardless of whether such Protected Person remains in the position or capacity pursuant to which such Protected Person became entitled to indemnification under this Section 11.2 and regardless of any subsequent amendment to this Agreement; provided, that no such amendment shall reduce or restrict the extent to which these indemnification provisions apply to actions taken or omissions made prior to the date of such amendment.
(ii) The rights of indemnification provided in this Section 11.2 shall be in addition to any rights to which a Protected Person may otherwise be entitled by contract or as a matter of law, and shall extend to each of such Protected Person’s heirs, successors and assigns.
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(c) Notice. All Members will be promptly notified of any amendment to this Agreement.
ARTICLE 13 — ADMINISTRATIVE PROVISIONS
Section 13.1 Keeping of Accounts and Records; Certificate of Formation; Administrator.
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Any written notice required to be given to a Members shall be deemed to have been given if sent to such Member at the address or email address set forth in the records of the Company or such other address or email address as such Member shall have specified in writing to the Company; provided that any call for capital required to be made under Article 3 shall also comply with the specific requirements of such section and the Subscription Agreement.
Notice, payment, demand or other communication shall be deemed to be delivered, given and received for all purposes:
(i) on the day of it being sent, where delivered in person, sent by email, and when sent on any Business Day during normal working hours at the place of receipt;
(ii) on the following Business Day, where sent by email on any Business Day outside normal working hours or on any day which is not a Business Day; and
(iii) on the second Business Day following the date dispatched by Federal Express, DHL or any comparable courier service.
Section 13.3 Accounting Provisions.
(b) Independent Auditors. The Company’s independent public auditors shall be Ernst & Young LLP.
Each Member agrees that such Member will, upon request by the Company, execute any forms or documents (including a power of attorney or settlement or closing agreement), provide any information (including an appropriate completed and executed Internal Revenue Service Form W-8) and take any further action requested by the Company, and that the Company may execute any forms or documents or obtain any information on such Member’s behalf that relate to such Member’s investment in the Company, in connection with any tax matter affecting the Company.
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Section 13.5 General Provisions.
Such representatives and attorneys-in-fact shall not, however, have any right, power or authority to amend or modify this Agreement when acting in such capacities, except as contemplated by clause (iii) of the immediately preceding paragraph. By way of clarification, any power of attorney granted by a Member under this Agreement is intended to be ministerial in scope and limited solely to those items permitted under the relevant grant of authority, and such powers of attorney are not intended to be a general xxxxx of power to independently exercise discretionary judgment on the Member’s behalf or to vary the economic terms of the Member’s investment in the Company, reduce the Member’s legal liability protection, increase the Member’s liability exposure to third parties, or undertake any new obligations, undertakings or investments on behalf of the Member (in each case to the extent not already specifically provided for in this Agreement).
The power of attorney granted hereby is coupled with an interest and shall (i) be irrevocable for so long as a Member remains a Member, (ii) be deemed to be given to secure a proprietary interest of the donee of the power or performance of an obligation owed to the donee, (iii) survive and shall not be affected by the subsequent death, lack of capacity, dissolution, insolvency, termination or bankruptcy of any Member granting the same or the Transfer of all or any of such Member’s Shares, and (iv) extend to such Member’s successors, assigns and legal representatives. Each Member, at the request of the Company, shall execute additional powers of attorney on a document separate from this Agreement. In the event of any conflict between this Agreement and any instruments executed, delivered, or filed by the Company pursuant to this power of attorney, this Agreement shall prevail. The Company may exercise this power of attorney by listing all of the Members executing any agreement, certificate, instrument, or document with the single signature of the attorney-in-fact as attorney-in-fact for all Members.
Except as otherwise specifically provided herein, the powers of attorney granted herein shall not in any manner revoke in whole or in part any power of attorney that the undersigned previously has executed. This power of attorney shall not be revoked by any subsequent power of attorney the undersigned may execute, unless such subsequent power specifically refers to this power of attorney or specifically states that the instrument is intended to revoke all prior powers of attorney.
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(i) Each Member agrees that, without the prior written consent of the Company (which consent may be withheld at its sole discretion), (a) it shall keep confidential and shall not copy, reproduce, sell, assign, license, market, distribute, make available, or otherwise disclose, directly or indirectly, any information relating to the Company to any person who is not involved with such Member’s investment in the Company and either (i) one of such Member’s employees, officers or directors, or an employee, officer or director of a person who controls, is controlled by or is under common control with such Member who has a need to know such information in connection with their responsibilities with such Member, (ii) an attorney, consultant or accountant engaged by such Member, or (iii) a person agreed to in writing by the Member and the Company, and (b) such Member shall not use any information relating to the Company for any purpose (other than the evaluation of Shares and the Company, the preparation of such Member’s tax returns and the evaluation of the performance of such Member’s investment in the Company), including to effect or replicate any transactions described in any report or information relating to the Company received by the Member. Each Member also agrees that they will not obtain or attempt to obtain (lawfully or unlawfully) any information, that a reasonable person would consider personal, pertaining to another Member of the Company.
(ii) Each Member further agrees that (a) it shall ensure that any such recipient is made aware of, and adheres to, the terms of this Section 13.5(h), (b) it shall be responsible for any disclosure of any such information by any such person in contravention of the terms of this Section 13.5(h), unless it obtains the prior written consent of the Company or such disclosure is permitted as described below, (c) it is at all times subject to such Member’s obligation to act, and to cause persons to whom such Member may disclose information pursuant to this Section 13.5(h) to act, in accordance with applicable laws and regulations relating to the receipt or use of such information including, without limitation, those governing insider dealing or trading, market abuse and market manipulation, and (d) the Company may, in its sole discretion, refuse such Member’s request to furnish any correspondence, documents or other information relating to the Company to any person not described in (a), (b) or (c) above.
(iii) Each Member agrees to comply with all laws, including securities laws, concerning confidential information, and such Member agrees that it shall not trade in the securities of any issuer about which such Member receives material non-public information in connection with its investment in the Company or in its capacity as a Member and shall refrain from such trading until any material non-public information no longer constitutes material non-public information.
26
(iv) Each Member hereby represents and warrants that, except as disclosed to the Company in writing, it is not subject to any law, governmental rule, regulation or legal process in any jurisdiction (including, without limitation, lawsuits, subpoenas administrative proceedings or the US Freedom of Information Act, or any comparable laws or regulations of any US or non-US jurisdiction) requiring such Member to disclose (on receipt of a request to do so or otherwise) any information relating to the Company or their investment in the Company (collectively, “Disclosure Laws”).
(v) The terms of this Section 13.5(h) shall apply indefinitely to information related to the Company except to the extent (a) such information is in the public domain (other than as a result of any action or omission of a Member or any person to whom such Member has disclosed such information) or (b) such information in the opinion of legal counsel of the Member (which such legal counsel, in the case of a Member which is an institutional investor, may be staff or in-house counsel regularly employed by such institutional investor) is required by applicable law or regulation to be disclosed, in which case Member shall first notify the Company of such requirement (unless such notification is prohibited by law) so that the Company may pursue a protective order or other appropriate remedy or waive compliance with the terms of this Section 13.5(h), and if a protective order or other appropriate remedy is not obtained, or if the Company waives compliance with the terms of this Section 13.5(h), then such Member shall disclose only that portion of confidential information such Member is advised by counsel is legally required to be disclosed and shall use its commercially reasonable efforts to protect the confidentiality of such information disclosed, including by requesting that confidential treatment be accorded such information. In addition, upon receipt by the Company of written notice from such Member of a public disclosure request, the Company may, in its sole discretion, cause the Transfer of such Member’s Shares if the Company determines, in its sole discretion, that the disclosure of this information could adversely affect the Company, the Company’s investors or the Adviser. The right of the Company to cause the Transfer of such Member’s Shares as set forth in the preceding sentence shall be in addition to, and shall not prejudice, any other rights of the Company and/or the Adviser to compulsorily Transfer such Member’s Shares. The Member further agrees to return any information relating to the Company upon the Company’s request therefor.
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(vi) To the extent that the Freedom of Information Act, 5 U.S.C. § 552, (“FOIA”), any state public records access law, any state or other jurisdiction’s laws similar in intent or effect to FOIA, or any other similar statutory or regulatory requirement would potentially cause the Member or any of its affiliates to disclose information relating to the Company, its affiliates and/or any of the Company’s investments, the Member hereby agrees that it will promptly notify the Company of such requested disclosure, and the Member (a) shall take commercially reasonable steps to oppose and prevent the requested disclosure unless (1) such Member is advised by counsel (which in the case of a Member that is an institutional investor may be in-house counsel regularly employed by such institutional investor) that there exists no reasonable basis on which to oppose such disclosure, (2) the Company does not object in writing to such disclosure within ten (10) Business Days (or such lesser time period as stipulated by the applicable law) of such notice or (3) such disclosure solely relates to Company level, aggregate performance information (i.e., aggregate cash flows, total returns, the year of formation of the Company, and such Member’s own Capital Contribution), and does not include (I) any confidential information relating to individual portfolio entities, (II) copies of the Member’s subscription agreement for Shares and related documents or (III) any other confidential information not referred to in clause (3) above; and (b) acknowledges and agrees that notwithstanding any other provision of this Agreement, the Company may in order to prevent any such potential disclosure that the Company determines in good faith is likely to occur (1) withhold all or any part of the information otherwise to be provided to the Member other than the Company level, aggregate performance information specified in clause (3) above, (2) provide to the Member access to such information only via an Internet website in password protected, non-downloadable- non-printable format, (3) to the maximum extent permitted by law, require the Member to return any copies of any such information provided to it by the Company and/or (4) make any such information available to the Member at the Company’s offices (or, at the request of the Company, the offices of counsel to the Company) or at the office of another third-party that has agreed to keep such information confidential; provided, that the Company shall not withhold any such information if the Member confirms in writing to the Company, based on the advice of counsel, that compliance with the procedures provided for in this Section 13.5(h) is legally sufficient to prevent such potential disclosure. For greater certainty, it is understood that a Member that is subject to FOIA, any state public records access law, any state or other jurisdiction’s laws similar in intent or effect to FOIA, or any other similar statutory or regulatory requirement and that maintains an established policy that was previously provided to the Company in writing, or regular practice with respect to the disclosure of the Company level, aggregate performance information permitted to be disclosed pursuant to clause (3) of this Section 13.5(h)(vi) may disclose such information without prior notice to the Company.
(vii) Each Member further agrees that the Adviser may, in its sole discretion, keep confidential and not disclose to such Member or any other person any information relating to the Company (including, but not limited to, information that such Member or any other person would be required to disclose pursuant to applicable Disclosure Laws were such Member or such other person to receive such information) if the Adviser determines in its discretion that the disclosure of such information is not in the best interest of the Company or could damage the Company or its business, or if the Company is required by law or by agreement with a third party to keep such information confidential.
(viii) For purposes of this Section 13.5(h), “information relating to the Company” shall be construed broadly and shall include, without limitation, any information furnished to, or otherwise obtained from the Adviser by, a Member in respect of the Company or their Shares, including, without limitation, information regarding any other Member (including their identity), information regarding existing, past or prospective direct or indirect investments made by or other investment positions and trading activities and strategies of and/or transactions effected directly or indirectly for the Company, the Company’s financial reports and performance reports and correspondence with its Members, and the terms of this Agreement and any other agreement entered into between such Member or its affiliates and the Company, the Adviser or their respective affiliates.
(ix) Each Member acknowledges and agrees that: (i) the Company and the Adviser would suffer irreparable injury if such Member was to violate any provision of this Section 13.5(h) and monetary damages would not be a sufficient remedy for any such violation and (ii) that in the event that such Member breaches or threatens to breach any provision of this Section 13.5(h), in addition to any other remedies available to the Company in respect of any such breach, the Company and/or the Adviser shall be entitled to specific performance and injunctive or other equitable relief to enforce any and all of the provisions of this Section 13.5(h) and that such Member will not oppose the granting of such relief. The remedies afforded to the Company and the Adviser by this Section 13.5(h) shall be in addition to any and all other remedies available to the Company and the Adviser resulting from such Member’s violation, breach or threatened breach of this Agreement.
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(x) Notwithstanding anything to the contrary in this Agreement, except as reasonably necessary to comply with applicable securities laws, each Member (and such Member’s employees, representatives or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the offering and ownership of the Shares (including the tax treatment and tax structure of any Company transactions) and all materials of any kind (including opinions and other tax analyses) that are provided to such Member relating to such tax treatment and tax structure. For this purpose, “tax structure” means any facts relevant to the US federal or state income tax treatment of (a) the offering and ownership of the Shares and (b) any transactions by the Company, and does not include information relating to the identity of the Company or its affiliates. Nothing in this paragraph shall be deemed to require the Adviser to disclose to you any information that the Adviser is permitted or is required to keep confidential in accordance with this Agreement.
(xi) Each Member acknowledges that the Company, the Adviser or its affiliates and/or service providers to or agents of the Company or the Adviser may from time to time be required or may, in their discretion, determine that it is advisable to disclose certain information about the Company and its Members including, but not limited to, investments held by the Company or the names and levels of beneficial ownership of Members, to (i) regulatory authorities of certain jurisdictions, which have or assert jurisdiction over the disclosing party or in which the Company directly or indirectly invests, or (ii) any Lender to, counterparty of or service provider to the Adviser or the Company, and each Member hereby consents to such disclosure.
(xii) Each Member agrees to provide the Company at any time during the term of the Company with such information as the Company determines to be necessary or appropriate to comply with the anti-money laundering laws and regulations of any applicable jurisdiction, or to respond to requests for information concerning the identity of the Members from any governmental authority, self-regulatory organization or financial institution in connection with its anti-money laundering compliance procedures, or to update such information.
(xiii) Notwithstanding the foregoing, the provisions of this Section 13.5(h) shall not apply to any information that is already in the public domain, and further, each Member shall have the right to make any filings required by applicable law (including, for the avoidance of doubt, filings required by the Exchange Act), and shall be under no obligation to obtain consent of the Company prior to making such filings.
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(j) [Reserved]
[Remainder of Page Intentionally Left Blank]
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COMPANY: | ||
ANDALUSIAN CREDIT COMPANY, LLC | ||
By: | /s/ Xxxxx Xxxxx | |
Name: Xxxxx Xxxxx | ||
Title: Chief Executive Officer |
[Signature page to LLC Agreement]
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MEMBERS: | ||
Each of the Persons who has executed a Subscription Agreement, agreeing to purchase Shares in the Company, to be admitted to the Company as a Member and to be bound by the terms of the Agreement, pursuant to the power of attorney granted hereby and in the Subscription Agreements: | ||
By: | /s/ Xxxxx Xxxxx | |
Name: Xxxxx Xxxxx | ||
Title: Chief Executive Officer, as attorney-in-fact for each of the Members | ||
INITIAL MEMBER: | ||
ANDALUSIAN CREDIT PARTNERS, LLC | ||
By: | /s/ Xxxxxxxx Xxxxxxx | |
Name: Xxxxxxxx Xxxxxxx | ||
Title: Co-Founding Partner |
[Signature page to LLC Agreement]
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APPENDIX I
Andalusian Credit Company, LLC
For purposes of this Agreement, the following terms shall have the meanings set forth below (such meanings to be equally applicable to both singular and plural forms of the terms so defined). Additional defined terms are set forth in the provisions of this Agreement to which they relate.
ACP | As set forth in the introductory paragraph to this Agreement. |
Additional Member | As set forth in Section 3.3(b). |
Administration Agreement | As set forth in Section 6.3. |
Administrator | As set forth in Section 6.3. |
Adviser | Andalusian Credit Partners, LLC, a Delaware limited liability company, or any successor thereto. |
Affiliate | With respect to the Person to which it refers, a Person that directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, such subject Person. For this purpose, each Officer shall be deemed to be an Affiliate of the Adviser. “Affiliated” shall have the corresponding meaning. |
Agreement | As set forth in the introductory paragraph to this Agreement. |
Andalusian | Andalusian Private Capital, LP. |
Assets | As set forth in Section 4.1(a). |
Audit Committee | As set forth in Section 3.4(b)(ii). |
BDC | A business development company as defined in Section 2(a)(48) of the Investment Company Act. |
Board member | As set forth in Section 3.4(a)(i). |
Board or Board of Managers | As set forth in Section 3.4(a)(i). |
Business Combination | Shall have the meaning set forth in Section 203 of the Delaware General Corporation Law. |
Business Day | Any day other than a Saturday, a Sunday or a day on which banking institutions in the State of New York are authorized or required by law, regulation or executive order to remain closed. |
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Cap | The Company will pay all initial Organizational and Offering Expenses associated with the private offering of its Shares up to a maximum amount of 1.50% of aggregate Capital Commitments to the Company. |
Capital Commitment | With respect to each Member, the amount that such Member commits to contribute to the Company pursuant to such Member’s Subscription Agreement. |
Capital Contribution | As set forth in Section 7.2(a). |
Catch-Up Purchase | As set forth in Section 3.3(a). |
Certificate | As set forth in Section 2.1(a). |
CFTC | As set forth in Section 6.1(c)(xix). |
Chair of the Board | As set forth in Section 3.4(a)(i). |
Code | The United States Internal Revenue Code of 1986, as amended from time to time, or any successor statute thereto. |
Company | As set forth in the introductory paragraph of this Agreement. |
Company Expenses | As set forth in Section 6.1. |
Defaulted Commitment | As set forth in Section 7.2(e). |
Defaulting Members | As set forth in Section 7.2(e). |
Default Remedy Limitations | As set forth in Section 7.2(e)(ii). |
Delaware Act | As set forth in Section 2.1(a). |
Disclosure Laws | As set forth in Section 13.5(h)(iv). |
Drawdown | As set forth in Section 7.2(a). |
Drawdown Notice | As set forth in Section 3.3(a). |
Drawn Amounts | As set forth in Section 7.2(a). |
I-2
DRP | The Company intends to adopt a dividend reinvestment program, pursuant to which each Member will receive dividends in the form of additional Shares unless they notify the Company that they instead desire to receive cash. For more information on the DRP, please refer to the Company's PPM. |
ERISA | The Employee Retirement Income Security Act of 1974, as amended. |
Exchange Act | The U.S. Securities Exchange Act of 1934, as amended. |
Financing | As set forth in Section 4.1(a). |
FOIA | As set forth in Section 13.5(h)(vi). |
Former Members | As set forth in Section 3.2(a). |
GAAP | As set forth in Section 13.1(a). |
Independent Board Member | As set forth in Section 3.4(a)(viii). |
Independent Board Members Committee | As set forth in Section 3.4(b)(i). |
Initial Closing Date | November 14, 2023, the first date on which Members’ first Capital Contributions were due to the Company. |
Initial Drawdown | As set forth in Section 3.3(a). |
Initial Drawdown Date | As set forth in Section 3.3(a). |
Initial Investment Period | As set forth in Section 3.3(a). |
Initial Member | As set forth in the introductory paragraph of this Agreement. |
Interested Member | Any entity or person beneficially owning 15% or more of the outstanding voting Shares of the Company and any entity or person affiliated with or controlling or controlled by any of these entities or persons. |
Investment Advisory Agreement | That certain investment advisory agreement pursuant to which the Adviser will act as investment adviser to the Company, as in effect from time to time. |
I-3
Investment Company Act | The Investment Company Act of 1940, as amended. |
Issuer | A corporation or other issuer any of whose interests are beneficially owned (directly or indirectly) by the Company, and any Subsidiaries of such corporation or other issuer. |
Lender | (i) Any lender, issuer of letters of credit or provider of other financing or extensions of credit, (ii) any holder of indebtedness, assignments, guarantees or other obligations relating to any of the foregoing, and (iii) any of their respective agents, trustees, successors and assigns. |
Lender Power | As set forth in Section 4.1(a). |
Liability | As set forth in Section 11.2(a). |
Liquidity Event | As set forth in Section 8.3. |
Marketable Securities | Securities which are traded or quoted on the New York Stock Exchange, American Stock Exchange or the Nasdaq Global Market or on a comparable securities market or exchange. |
Member | Any Person who has entered into this Agreement and a Subscription Agreement pursuant to which such Person has agreed to purchase Shares of the Company. |
New Class | As set forth in Section 5.1. |
Nominating and Corporate Governance Committee | As set forth in Section 3.4(b)(i). |
Offering Expenses | Except as otherwise set forth in the PPM, all fees, costs or expenses incurred in connection with the initial offering of Shares, including, without limitation, legal, accounting, printing and other offering costs including those associated with the preparation of the PPM and Company’s registration statement on Form 10. For the avoidance of doubt it is intended that except as otherwise described, this definition of “Offering Expenses” is intended to conform to offering expenses as identified by GAAP. |
Officers | As set forth in Section 3.4(c)(ii). |
I-4
Organizational Expenses | Except as otherwise set forth in the PPM, all fees, costs or expenses incurred in connection with the organization of the Company, including, without limitation, the cost of forming the Company, legal fees related to the creation and organization of the Company, the Company’s related documents of organization and the Company’s election to be regulated as a BDC. For the avoidance of doubt it is intended that except as otherwise described, this definition of “Organizational Expenses” is intended to conform to organizational expenses as identified by GAAP. |
Original Agreement | As set forth in the preamble to this Agreement. |
Other Agreement | As set forth in Section 13.5(k). |
Overhead | As set forth in Section 6.1. |
Permitted Uses | As set forth in Section 7.2(c). |
Person | Any individual, general partnership, limited partnership, limited liability partnership, limited liability company, corporation, joint venture, trust, statutory or business trust, cooperative or association or any governmental body or agency, and the heirs, executors, administrators, legal representative, successors and assigns of such Person where the context so permits. |
Portfolio Company | Any entity in which the Company holds a Portfolio Investment. |
Portfolio Investment | As set forth in Section 4.1(a). |
PPM | The Company’s confidential private placement memorandum, dated October 2023, as may be amended or supplemented from time to time, prepared by the Company with respect to the offering of Shares. |
Protected Person | As set forth in Section 11.1. |
RIC | A regulated investment company as defined in the Code. |
SEC | As set forth in Section 3.4(a)(v). |
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Securities Act | The U.S. Securities Act of 1933, as amended. |
Shares | The limited liability company interests. |
Specified Agent | Shall mean any agent of any Person that is designated in writing by the Board as an agent of the Company entitled to the protection of Sections 11.1 and 11.2. |
Subscription Agreement | The subscription agreement by which any Member agreed to purchase such Member’s Shares. |
Subsequent Closing Date | As set forth in Section 3.3(a). |
Subsidiary | With respect to any Person, (a) a corporation, 50% or more of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person or by such Person and one or more Subsidiaries thereof or (b) any other Person (other than a corporation) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and the power to control (as defined in the definition of “Affiliate”) such other Person. |
Transfer | As set forth in Section 10.1(a). |
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SCHEDULE A
Schedule of Board members
Name |
Xxxxxx
X. Xxxxxx Xxxx Xxxxxxx |
Xxxx Xxxxx |
A-1
SCHEDULE B
Schedule of Officers
Name | Position(s) |
Xxxxx Xxxxx | Chief Executive Officer |
Xxxxxx Xxxxxx | Vice President |
Xxxxxxxx X. Xxxxx | Chief Financial Officer |
Xxxx Xxxxx Xxxxxx Xxxxxx |
Chief Compliance Officer Secretary |
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