Management by the Manager. Subject to the provisions of this Agreement, in accordance with the purpose of the Company as set forth in Section 2.3, and notwithstanding the appointment of a Board of Directors in accordance with Section 6.4 below, the Company and its business shall be managed, controlled and operated by the Manager, who shall be the “manager” of the Company within the meaning of Section 18- 101(10) of the Act and the Manager shall have the exclusive power and authority to perform acts associated with the management and control of the Company and its business, including but not limited to the power and authority to: (a) Receive, buy, sell, exchange, trade, vote and otherwise deal in and with Securities and other property of the Company, including Securities and other property belonging to any Investment Series; (b) Acquire Securities on the basis of investment representations or subject to transfer restrictions; (c) Borrow money or property on behalf of the Company, encumber Company property for the purpose of obtaining financing for the Company’s business, and extend or modify any obligations of the Company; (d) Employ or retain any qualified Person to perform services or provide advice on behalf of the Company and pay reasonable compensation therefor; (e) Compromise, arbitrate or otherwise adjust claims in favor of or against the Company, and commence or defend litigation with respect to the Company or any assets of the Company, at the Company’s expense; (f) Cause the Company to purchase and maintain, at the Company’s expense, insurance coverage reasonably satisfactory to the Manager (and, for insurance covering any director of the Company, reasonably satisfactory to such director) with regard to any circumstance or condition which may affect the Company (including any employee or agent thereof), the Manager (or any member, employee or agent thereof) in its capacity as such, or any Person in connection with service by such Person, at the request of the Manager, as an officer or director of a Portfolio Company; (g) Cause the Company to enter into, make and perform upon such contracts, agreements and other undertakings, and to do such other acts, as it may deem necessary or advisable for, or as may be incidental to, the conduct of the business of the Company, including contracts, agreements, undertakings and transactions with a Member or Person related to a Member; provided, however, that transactions with a Member or Person related to a Member for the account of the Company shall be on terms no less favorable to the Company than are generally afforded to unrelated third parties in comparable transactions; (h) Cause the Company to invest in, or enter into, hedging arrangements designed to reduce or eliminate the risk of changes in the value of one or more Portfolio Securities; (i) Open, conduct business regarding, draw checks or other payment orders upon, and close cash, checking, custodial or similar accounts with banks or brokers on behalf of the Company and pay the customary fees and charges applicable to transactions in respect of all such accounts; and (j) Assume and exercise all of the authority, rights and powers of a Manager under the laws of the State of Delaware. Without limiting the generality of the foregoing, the Manager may adopt bylaws to govern the affairs of the Company, which bylaws shall be binding on the Company and the Members as if the provisions thereof were set forth in this Agreement. The Manager is authorized on behalf of the Company to enter into an administrative services or similar agreement on commercially reasonable terms between the Company and the Manager regarding the provision of administrative services by the Manager and its Affiliates to the Company. By execution of this Agreement, the Members authorize, approve and ratify the administrative services agreement between the Company and the Initial Manager in effect on the date hereof.
Appears in 1 contract
Sources: Operating Agreement
Management by the Manager. Subject to The Manager will have full responsibility for and charge of the provisions of this Agreementoverall management, in accordance with the purpose control and administration of the Company in all respects. All determinations made and actions taken by the Manager pursuant to this Agreement will be binding on and conclusive as to all of the Members and will not be subject to question or review by any Member in any suit or proceeding except to the extent that any such suit or proceeding involves an alleged violation of the standards set forth in Section 2.3, and notwithstanding the appointment of a Board of Directors in accordance with Section 6.4 belowAct. To the fullest extent permitted by law, the Company and its business shall be managed, controlled and operated Members hereby consent to the exercise by the Manager, who shall be the “manager” Manager of the Company within powers conferred on it by this Agreement. The Manager may delegate authority to its Affiliates and others. The Manager will have all specific rights and powers required or appropriate to manage the meaning of Section 18- 101(10) of Company, including, without limitation, the Act and the Manager shall have the exclusive power and authority to perform acts associated with do the management and control following (except to the extent that any of the Company and its business, including but not following powers are specifically limited to the power and authority to:or restricted by any other provision of this Agreement):
(a) Receive, buy, sell, exchange, trade, vote and otherwise deal originate the Company’s investments in and with Securities and other property Portfolio Companies subject to the prior approval of the Company, including Securities and other property belonging to any Investment SeriesCommittee;
(b) Acquire Securities on monitor and evaluate the basis of investment representations or subject Company’s investments in Portfolio Companies and otherwise represent the Company’s interests with respect to transfer restrictionsPortfolio Companies in all respects;
(c) Borrow money or property on behalf exercise the voting rights under all Securities of the Company, encumber Company property for the purpose of obtaining financing for the Company’s business, and extend or modify any obligations of Portfolio Companies owned by the Company;
(d) Employ or retain any qualified Person to perform services or provide advice on behalf administer the overall operation of the Company and pay reasonable compensation thereforCompany;
(e) Compromiseinitiate, arbitrate participate in and settle judicial, arbitration, administrative or otherwise adjust claims in favor of or against similar proceedings to protect the Company, and commence or defend litigation with respect to the Company or any assets of the Company, at enforce the Company’s expenserights or otherwise defend the interests of the Company;
(f) Cause sell or otherwise dispose of all or substantially all of the Company to purchase and maintain, at the Company’s expense, insurance coverage reasonably satisfactory to the Manager (and, for insurance covering any director assets of the Company, reasonably satisfactory to such director) with regard to including all Securities of Portfolio Companies (but, for clarity, not any circumstance or condition which may affect action regarding the Company (including any employee or agent thereofthat requires Member approval pursuant to Section 8.3(a), the Manager (or any member, employee or agent thereof) in its capacity as such, or any Person in connection with service by such Person, at the request of the Manager, as an officer or director of a Portfolio Company);
(g) Cause employ (and cause the Company to enter into, make pay all fees and perform upon expenses of such contracts, agreements and other undertakings, and Persons) Persons to do such other acts, as it may deem necessary or advisable for, or render services to the Company as may be incidental to, necessary for the conduct of the business efficient operations of the Company, including contracts, agreements, undertakings and transactions with a Member or Person related to a Member; provided, however, that transactions with a Member or Person related to a Member for the account of the Company shall be on terms no less favorable to the Company than are generally afforded to unrelated third parties in comparable transactions;
(h) Cause make, or cause to be made, payment by the Company to invest inany and all expenses that may be necessary for the operation, administration or enter into, hedging arrangements designed to reduce or eliminate management of the risk of changes in the value of one or more Portfolio SecuritiesCompany;
(i) Open▇▇▇, conduct business regardingcomplain and defend, draw checks or other payment orders upon, in the name of and close cash, checking, custodial or similar accounts with banks or brokers on behalf of the Company, and to settle, adjust, submit to arbitration and compromise all actions, suits, accounts, reckonings, claims and demands whatsoever now or hereafter pending between the Company and pay the customary fees and charges applicable to transactions in respect of all such accountsany other party (other than a Member); and
(j) Assume and exercise all of the authority, rights and powers of a Manager under the laws of the State of Delaware. Without limiting the generality of the foregoing, do any other acts that the Manager may adopt bylaws deems advisable to govern further the affairs purposes of the Company, which bylaws shall be binding on the Company and the Members as if the provisions thereof were set forth in that are not prohibited by this Agreement. The Manager is authorized on behalf of the Company to enter into an administrative services Agreement or similar agreement on commercially reasonable terms between the Company and the Manager regarding the provision of administrative services by the Manager and its Affiliates to the Company. By execution of this Agreement, the Members authorize, approve and ratify the administrative services agreement between the Company and the Initial Manager in effect on the date hereofapplicable law.
Appears in 1 contract
Sources: Operating Agreement