Repurchase of Interests. (a) No Member or other Person holding an Interest acquired from a Member will have the right to require the Fund to redeem or otherwise repurchase the Interest. (b) The Fund may from time to time repurchase Interests from Members in accordance with written tenders by Members at those times, in those amounts, and on terms and conditions as the Board of Directors may determine in its sole discretion. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to accept such a recommendation, the Board of Directors will consider the following factors, among others: (1) whether any Members have requested to tender Interests to the Fund; (2) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers); (3) the investment plans and working capital and reserve requirements of the Fund; (4) the relative economies of scale of the tenders with respect to the size of the Fund; (5) the history of the Fund in repurchasing Interests; (6) the availability of information as to the value of the Fund’s interests in Investment Funds; (7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs; (8) any anticipated tax consequences to the Fund of any proposed repurchases of Interests; and (9) the recommendations of the Investment Manager. (c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that the Board of Directors determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the “Notice Due Date”), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period. (d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice to the Members: (1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day). (2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “Promissory Note”) entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund’s financial statements. (3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times. (4) The initial payment in respect of the Promissory Note (the “Initial Payment”) will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 45 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from any Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds. (5) The second and final payment in respect of the Promissory Note (the “Post-Audit Payment”) is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund’s financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Fund anticipates that the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Audit Payment will be made promptly after the completion of the audit. (e) In the event that the Managing Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund. (f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member. (g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund in its sole discretion determines that: (1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member; (2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction; (3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences; (4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true; (5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or (6) it would be in the best interests of the Fund for the Fund to repurchase the Interest. (h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member) tenders an amount that would cause the Member’s Capital Account balance to fall below the required minimum, the Fund shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s Interest in the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a Member. (i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis. (j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following: (1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s net assets; (2) for any other periods that the SEC permits by order for the protection of Members; or (3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members. (k) A fee (a “Repurchase Fee”) will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be repurchased on a “first in – first out” basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s Interest under Section 4.5(g). (l) A repurchase of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s then-current tender offer procedures. (m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Jp Morgan Access Multi-Strategy Fund LLC)
Repurchase of Interests. (a) No Except as otherwise provided in this Agreement, no Member or other Person person holding an Interest or portion thereof acquired from a Member will have has the right to require the Fund to withdraw, redeem or otherwise tender to the Fund for repurchase the Interest.
(b) its Interest or any portion thereof. The Fund may Board of Managers may, from time to time repurchase Interests from Members and in accordance with written tenders by Members at those times, in those amounts, its sole discretion and on such terms and conditions as it may determine, cause the Fund to offer to repurchase Interests from Members, including the Adviser or its Affiliates, pursuant to written tenders by Members. The Board of Directors may determine Managers, in its sole discretion, will determine the aggregate value of Interests to be repurchased, which may be a percentage of the value of the Fund’s outstanding interests. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless In determining whether the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund should offer to repurchase Interests from Members approximately six months after pursuant to written requests and the Initial Closing Date (or, if such date is not the last day amount of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether Interests to accept such a recommendationbe repurchased, the Board of Directors will Managers may consider the following factors, among others:
(1i) The liquidity of the Fund’s assets (including, without limitation, fees and costs associated with withdrawing from Portfolio Funds);
(ii) whether any Members have requested to tender Interests or portions of Interests to the Fund;
(2iii) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve liquidity requirements of the Fund;
(4iv) the relative economies of scale of the tenders repurchase requests with respect to the size of the Fund;
(5v) the history past practice of the Fund in repurchasing Interests;
(6vi) the availability of information as to the value of the Fund’s interests in Investment Funds;
(7) the existing conditions condition of the securities markets market and the economy generally, as well as political, national or international developments or current affairs;
(8) any vii) the anticipated tax consequences to the Fund of any proposed repurchases of Interests; and
(9viii) the recommendations availability of information as to the value of the Investment Manager.
(c) Fund’s interests in Portfolio Funds. The Board of Managers shall cause the Fund will to repurchase Interests from Members at net asset value in accordance with or portions thereof pursuant to written tenders only on terms and conditions that the Board of Directors Managers determines to be fair to the Fund and to all Members Members.
(b) The Adviser and each of its Affiliates may tender their Interest or Persons holding Interests acquired from a portion thereof as a Member or Organizational Member, as applicable, under Section 4.4(a) hereof, without notice to the other Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When .
(c) If the Board of Directors Managers determines in its sole discretion that the Fund will offer to repurchase Interests, the Board of Managers will provide written notice to Members. Such notice will be provided to Members, specifying include: (i) the commencement date of the repurchase offer; (ii) the Expiration Date on which repurchase requests must be received by the Fund Fund; and (the “Notice Due Date”), describing the terms of the offer, containing iii) other information Members should consider in deciding whether and how to participate in the such repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the periodopportunity.
(d) The Fund expects amount due to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each any Member whose Interest has been accepted for repurchase a promissory note or portion thereof is repurchased shall, subject to the terms of this Agreement (the “Promissory Note”) entitling the Member to including, without limitation, Section 4.4(1)), be paid an amount equal to the net asset value, value of the Member’s Capital Account (or portion thereof being repurchased) based on the Net Asset Value of the Fund as of the Repurchase Valuation Date, after reduction for all fees, including any Investment Management Fee or Administration Fee, any required tax withholding and other liabilities of the repurchased InterestFund to the extent accrued or otherwise attributable to the Interest or portion thereof being repurchased. Payment by the Fund to each Member, upon repurchase of such Member’s Interests shall be made in the form of a promissory note (a “Promissory Note”). Such payment shall be made as promptly as practicable following the Expiration Date. Any in-kind distribution of Securities will be valued in accordance with Section 7.4 hereof. The determination of the value of Interests as of the Repurchase Valuation Date is shall be subject to adjustment based upon the results of the next annual audit of the Fund’s financial statementsstatements for the Fiscal Year in which such Valuation Date occurred. A Member who tenders some but not all of his Interest for repurchase will be required to maintain a minimum Capital Account balance equal to the amount set forth, from time to time, in the Fund’s Form N-2. The Board of Managers may, in its sole discretion, waive this minimum Capital Account balance requirement. The Fund may reduce the amount to be repurchased from a Member in order to maintain a Member’s minimum Capital Account balance.
(3e) The Each Promissory NoteNote issued pursuant to clause (d) of this Section 4.4, which will be non-interest-interest bearing and non-transferable, is expected to contain shall provide, among other terms providing for payment at two separate times.
(4) determined by the Fund, in its sole discretion, the following payments. The initial payment in respect of the Promissory Note (the “Initial Payment”) will shall be in an amount equal to at least 95% of the net asset estimated value of the repurchased Interest or portion thereof, determined as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchaseValuation Date. The Initial Payment will shall be made on or before the later of (i) 45 days tenth business day after the Repurchase Date, or (ii) provided that if the Fund Fund, in the sole discretion of the Adviser, has requested withdrawals withdrawal of its capital from any Investment Portfolio Funds in order to fund the repurchase of Interests, ten Business Days such payment may be postponed until a reasonable time after the Fund has received at least 95% of the aggregate amount so requested to be withdrawn by the Fund from Portfolio Funds (the Investment Funds.
(5) “Portfolio Fund Payment Date”). The second and final payment in respect of the a Promissory Note (the “Post-Audit Final Payment”) is expected to be in an amount equal to the excess, if any, of (i1) the net asset value of the repurchased Interest or portion thereof, determined as of the Repurchase Valuation Date and based upon the results of the annual audit of the Fund’s financial statements of the Fund for the year Fiscal Year in which the Valuation Date of such repurchase occurred, over (2) the Initial Payment.
(f) Notwithstanding anything in this Section 4.4 to the contrary, in the event that a Member has requested the repurchase of a portion of its Interest which would result in such Member continuing to hold at least 5% of the value of its Interest as of March 31 of the Fiscal Year ending immediately prior to the Fiscal Year in which such request was made, the Final Payment in respect of such repurchase shall be made approximately 60 days after the Repurchase Date occursDate, less provided that if the Fund, in the sole discretion of the Adviser, has requested withdrawals of its capital from any Repurchase Fee due Portfolio Funds in order to fund the repurchase of Interests, such payment may be postponed until a reasonable time after the applicable Portfolio Fund Payment Date. Such payment shall be in an amount equal to the excess, if any, of (1) the value of the repurchased Interest or portion thereof, determined as of the Valuation Date, based upon information known to the Fund in connection with as of the repurchasedate of the Final Payment, over (ii2) the Initial Payment. The Fund anticipates that Notwithstanding anything in this Agreement to the contrary, if, based upon the results of the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and for the Fiscal Year in which the Valuation Date of such repurchase occurred, it is determined that the Post- Audit Payment will be made value at which the Interest was repurchased was incorrect, the Fund shall, as promptly as practicable after the completion of the such audit.
(e) In the event that the Managing , decrease such Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made ’s Capital Account balance by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 amount of this Agreement (other than under Section 4.1(c) of this Agreement)any overpayment, the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On increase such date, the Board of Directors will cause the Interest to be repurchased Member’s Capital Account balance by the Fund for cash at a valuation determined by the Board amount of Directors in accordance with Section 4.5(c) of this Agreementany underpayment, and the former Managing Member will thereupon cease to be a Memberas applicable.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund Notwithstanding anything in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious this Section 4.4 to the business or reputation of the Fundcontrary, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or Managers shall modify any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person repurchase procedures described in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member) tenders an amount that would cause the Member’s Capital Account balance to fall below the required minimum, the Fund shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s Interest in the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a “Repurchase Fee”) will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be repurchased on a “first in – first out” basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s Interest under Section 4.5(g).
(l) A repurchase of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.this
Appears in 1 contract
Sources: Limited Liability Company Agreement (Partners Group Private Equity (Master Fund), LLC)
Repurchase of Interests. (a) No Except as otherwise provided in this Agreement, no Member or other Person person holding an Interest or portion thereof acquired from a Member will have has the right to require the Fund to withdraw, redeem or otherwise tender to the Fund for repurchase the Interest.
(b) its Interest or any portion thereof. The Fund may Board of Managers may, from time to time repurchase Interests from Members and in accordance with written tenders by Members at those times, in those amounts, its sole discretion and on such terms and conditions as it may determine, cause the Fund to offer to repurchase Interests from Members, including the Adviser or its Affiliates, pursuant to written tenders by Members. The Board of Directors may determine Managers, in its sole discretion, will determine the aggregate value of Interests to be repurchased, which may be a percentage of the value of the Fund’s outstanding interests. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless In determining whether the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund should offer to repurchase Interests from Members approximately six months after pursuant to written requests and the Initial Closing Date (or, if such date is not the last day amount of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether Interests to accept such a recommendationbe repurchased, the Board of Directors will Managers may consider the following factors, among others:
(1i) The liquidity of the Fund’s assets (including, without limitation, fees and costs associated with withdrawing from Portfolio Funds);
(ii) whether any Members have requested to tender Interests or portions of Interests to the Fund;
(2iii) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve liquidity requirements of the Fund;
(4iv) the relative economies of scale sizes of the tenders with respect to the size of repurchase requests and the Fund;
(5v) the history past practice of the Fund in repurchasing Interests;
(6vi) the availability of information as to the value of the Fund’s interests in Investment Funds;
(7) the existing conditions condition of the securities markets market and the economy generally, as well as political, national or international developments or current affairs;
(8) any vii) the anticipated tax consequences to the Fund of any proposed repurchases of Interests;
(viii) the Fund’s investment plans; and
(9ix) the recommendations availability of information as to the value of the Investment ManagerFund’s interests in Portfolio Funds and other investments.
(b) The Adviser and each of its Affiliates may tender their Interests or a portion thereof as a Member or Organizational Member, as applicable, under Section 4.4(a) hereof, without notice to the other Members.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that If the Board of Directors Managers determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When the Board of Directors determines its sole discretion that the Fund will offer to repurchase Interests, the Board of Managers will provide written notice to Members. Such notice will be provided to Members, specifying include: (i) the commencement date of the repurchase offer; (ii) the Expiration Date on which repurchase requests must be received by the Fund Fund; and (the “Notice Due Date”), describing the terms of the offer, containing iii) other information Members should consider in deciding whether and how to participate in the such repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the periodopportunity.
(d) The Fund expects amount due to employ the following repurchase proceduresany Member whose Interests or portion thereof is repurchased shall, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice subject to the Members:
terms of this Agreement (1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Dateincluding, which generally will without limitation, Section 4.4(a)), be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “Promissory Note”) entitling the Member to be paid an amount equal to the net asset value, value of the Member’s Interests (or portion thereof being repurchased) based on the Net Asset Value of the Fund as of the Repurchase Valuation Date, after reduction for all fees, including any Investment Management Fee or Administration Fee, any Incentive Fee, any required tax withholding and other liabilities of the repurchased InterestFund to the extent accrued or otherwise attributable to the Interests or portion thereof being repurchased, provided that, subject to applicable law, the Board of Managers may offer to purchase Interests at a discount to the Net Asset Value (a “Discount Repurchase Offer”). Payment by the Fund to each Member, upon repurchase of such Member’s Interests shall be made in the form of a promissory note (a “Promissory Note”). Such payment shall be made as promptly as practicable following the Expiration Date. Any in-kind distribution of Securities will be valued in accordance with Section 7.4 hereof. The determination of the value of Interests as of the Repurchase Valuation Date is shall be subject to adjustment based upon the results of the next annual audit of the Fund’s financial statementsstatements for the Fiscal Year in which such Valuation Date occurred. A Member who tenders some but not all of his Interests for repurchase will be required to maintain a minimum Account balance equal to the amount set forth, from time to time, in the Fund’s Form N-2. The Board of Managers may, in its sole discretion, waive this minimum Account balance requirement. The Fund may reduce the amount to be repurchased from a Member in order to maintain a Member’s minimum Account balance.
(3e) The Each Promissory NoteNote issued pursuant to clause (d) of this Section 4.4, which will shall be non-interest-interest bearing and non-transferable, is expected to contain and shall provide, among other terms providing for payment at two separate times.
(4) determined by the Fund, in its sole discretion, the following payments. The initial payment in respect of the Promissory Note (the “Initial Payment”) will shall be in an amount equal to at least 95% of the net asset estimated value of the repurchased Interest Interests or portion thereof, determined as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchaseValuation Date. The Initial Payment will shall be made on or before the later of (i) 45 days twentieth business day after the Repurchase Date, or (ii) provided that if the Fund Fund, in the sole discretion of the Adviser, has requested withdrawals withdrawal of its capital from any Investment Portfolio Funds in order to fund the repurchase of Interests, ten Business Days such payment may be postponed until a reasonable time after the Fund has received at least 95% of the aggregate amount so requested to be withdrawn by the Fund from Portfolio Funds (the Investment Funds.
(5) “Portfolio Fund Payment Date”). The second and final payment in respect of the a Promissory Note (the “Post-Audit Final Payment”) is expected to be in an amount equal to the excess, if any, of (i1) the net asset value of the repurchased Interest Interests or portion thereof, determined as of the Repurchase Valuation Date and based upon the results of the annual audit of the Fund’s financial statements of the Fund for the year Fiscal Year in which the Repurchase Valuation Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchaseof such repurchase occurred, over (ii2) the Initial Payment. The Fund anticipates that the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve Notwithstanding anything in that capacity under this Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice 4.4 to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fundcontrary, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be if a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase, would continue to hold at least 5% of the aggregate value of its Interests as of the Valuation Date, the Final Payment in respect of such repurchase shall be made on or before the 60th day after the Repurchase Date, provided that if the Fund, in the sole discretion of the Adviser, has requested withdrawals of its capital from any Portfolio Funds in order to fund the repurchase of Interests, such payment may be postponed until 10 business days after the applicable Portfolio Fund Payment Date. If a Member (other than the Managing Member) tenders Such payment shall be in an amount equal to the excess, if any, of (1) the value of the repurchased Interests or portion thereof, determined as of the Valuation Date, based upon information known to the Fund as of the date of the Final Payment, over (2) the Initial Payment. Notwithstanding anything in this Agreement to the contrary, if, based upon the results of the annual audit of the financial statements of the Fund for the Fiscal Year in which the Valuation Date of such repurchase occurred, it is determined that would cause the Member’s Capital Account balance to fall below value at which the required minimumInterests was repurchased was incorrect, the Fund shall have shall, as promptly as practicable after the right to either (1) reduce completion of such audit, decrease such Member’s Account balance by the amount of any overpayment, or increase such Member’s Account balance by the amount of any underpayment, as applicable.
(g) Notwithstanding anything in this Section 4.4 to the contrary, the Board of Managers shall modify any of the repurchase procedures described in this Section 4.4 if necessary to comply with the regulatory requirements imposed by the Securities and Exchange Commission.
(h) Each Member whose Interests have or portion thereof has been accepted for repurchase will continue to be a Member until the Repurchase Date (and thereafter if its Interests are repurchased from in part) and may exercise its voting rights with respect to the repurchased Interest or portion thereof until the Repurchase Date. Moreover, the Account maintained in respect of a Member so that whose Interests have or portion thereof has been accepted for repurchase will be adjusted for the required minimum balance is maintained appreciation or (2) repurchase the remainder depreciation of the Net Asset Value of the Fund through the Valuation Date, and such Member’s Interest in Account shall not be adjusted for the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fundamount withdrawn, as a result of repurchase or Transfer by the Memberrepurchase, is less than $50,000. If prior to the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a MemberRepurchase Date.
(i) Repurchases Upon its acceptance of tendered Interests from Members by or portions thereof for repurchase, the Fund may shall maintain daily on its books a segregated account consisting of cash, liquid securities or, to the extent applicable, interests in Portfolio Funds that the Fund (i) has requested be paid, withdrawn or (ii) is in the discretion process of liquidating, (or any combination of them) in an amount equal to the aggregate estimated unpaid dollar amount of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not Promissory Notes issued to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basisor portions thereof.
(j) The Notwithstanding anything in this Section 4.4 to the contrary, the Fund may suspend suspend, postpone or postpone terminate a repurchase offer in certain limited circumstances, and only by a vote upon the determination of a majority of the Board of Directors, Managers (including a majority of Independent Managers) that such suspension, postponement or termination is advisable for the Independent Directors. These Fund and its Members, including, without limitation, the existence of circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns its investments or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) Net Asset Value or other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Memberscircumstances.
(k) A fee (Partial Interests of a “Repurchase Fee”) Member tendered for repurchase will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be treated as having been repurchased on a “first in – in-first out” basis (in other wordsi.e., the portion of the Interest Interests repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciationor depreciation of the Net Asset Value of the Fund) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjustedadjusted for subsequent appreciation or depreciation of the Net Asset Value of the Fund)).
(l) until such Capital Contribution is decreased to zero). Other than any Where an early repurchase fee (an “Early Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee ”) will be charged by the Fund in connection with respect to any repurchase of Interests from a Member’s Interest under Section 4.5(g).
(l) A repurchase Member at any time prior to the day immediately preceding the two-year anniversary of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the commencement of operations of the Fund may determine in its sole discretion, provided that (1) valuation of or the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s thenone-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account year anniversary of the Member’s Interestpurchase of Interests, if such repurchase or distribution would violate as applicable, the Delaware Act or other applicable lawEarly Repurchase Fee may be waived where the Board of Managers determines that doing so is in the best interest of the Fund.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Partners Group Growth, LLC)
Repurchase of Interests. (a) No Except as otherwise provided in this Agreement, no Member or other Person person holding an Interest or portion thereof acquired from a Member will have has the right to require the Fund to withdraw, redeem or otherwise tender to the Fund for repurchase the Interest.
(b) its Interest or any portion thereof. The Fund may Board of Managers may, from time to time repurchase Interests from Members and in accordance with written tenders by Members at those times, in those amounts, its sole discretion and on such terms and conditions as it may determine, cause the Fund to offer to repurchase Interests from Members, including the Adviser or its Affiliates, pursuant to written tenders by Members. The Board of Directors may determine Managers, in its sole discretion, will determine the aggregate value of Interests to be repurchased, which may be a percentage of the value of the Fund’s outstanding interests. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless In determining whether the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund should offer to repurchase Interests from Members approximately six months after pursuant to written requests and the Initial Closing Date (or, if such date is not the last day amount of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether Interests to accept such a recommendationbe repurchased, the Board of Directors will Managers may consider the following factors, among others:
(1i) The liquidity of the Fund’s assets (including, without limitation, fees and costs associated with withdrawing from Portfolio Funds);
(ii) whether any Members have requested to tender Interests or portions of Interests to the Fund;
(2iii) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve liquidity requirements of the Fund;
(4iv) the relative economies of scale sizes of the tenders with respect to the size of repurchase requests and the Fund;
(5v) the history past practice of the Fund in repurchasing Interests;
(6vi) the availability of information as to the value of the Fund’s interests in Investment Funds;
(7) the existing conditions condition of the securities markets market and the economy generally, as well as political, national or international developments or current affairs;
(8) any vii) the anticipated tax consequences to the Fund of any proposed repurchases of Interests; and;
(9viii) the recommendations Fund’s investment plans;
(ix) the availability of information as to the value of the Investment ManagerFund’s interests in Portfolio Funds and other investments.
(b) The Adviser and each of its Affiliates may tender their Interest or a portion thereof as a Member or Organizational Member, as applicable, under Section 4.4(a) hereof, without notice to the other Members.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that If the Board of Directors Managers determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When the Board of Directors determines its sole discretion that the Fund will offer to repurchase Interests, the Board of Managers will provide written notice to Members. Such notice will be provided to Members, specifying include: (i) the commencement date of the repurchase offer; (ii) the Expiration Date on which repurchase requests must be received by the Fund Fund; and (the “Notice Due Date”), describing the terms of the offer, containing iii) other information Members should consider in deciding whether and how to participate in the such repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the periodopportunity.
(d) The Fund expects amount due to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each any Member whose Interest has been accepted for repurchase a promissory note or portion thereof is repurchased shall, subject to the terms of this Agreement (the “Promissory Note”) entitling the Member to including, without limitation, Section 4.6(a)), be paid an amount equal to the net asset value, value of the Member’s Capital Account (or portion thereof being repurchased) based on the Net Asset Value of the Fund as of the Repurchase Valuation Date, after reduction for all fees, including any Investment Management Fee or Administration Fee, any Incentive Allocation, any required tax withholding and other liabilities of the repurchased InterestFund to the extent accrued or otherwise attributable to the Interest or portion thereof being repurchased, provided that, subject to applicable law, the Board of Managers may offer to purchase Interests at a discount to the Net Asset Value (a “Discount Repurchase Offer”). Payment by the Fund to each Member, upon repurchase of such Member’s Interests shall be made in the form of a promissory note (a “Promissory Note”). Such payment shall be made as promptly as practicable following the Expiration Date. Any in-kind distribution of Securities will be valued in accordance with Section 7.4 hereof. The determination of the value of Interests as of the Repurchase Valuation Date is shall be subject to adjustment based upon the results of the next annual audit of the Fund’s financial statementsstatements for the Fiscal Year in which such Valuation Date occurred. A Member who tenders some but not all of his Interest for repurchase will be required to maintain a minimum Capital Account balance equal to the amount set forth, from time to time, in the Fund’s Form N-2. The Board of Managers may, in its sole discretion, waive this minimum Capital Account balance requirement. The Fund may reduce the amount to be repurchased from a Member in order to maintain a Member’s minimum Capital Account balance.
(3e) The Each Promissory NoteNote issued pursuant to clause (d) of this Section 4.6, which will shall be non-interest-interest bearing and non-transferable, is expected to contain and shall provide, among other terms providing for payment at two separate times.
(4) determined by the Fund, in its sole discretion, the following payments. The initial payment in respect of the Promissory Note (the “Initial Payment”) will shall be in an amount equal to at least 95% of the net asset estimated value of the repurchased Interest or portion thereof, determined as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchaseValuation Date. The Initial Payment will shall be made on or before the later of (i) 45 days tenth business day after the Repurchase Date, or (ii) provided that if the Fund Fund, in the sole discretion of the Adviser, has requested withdrawals withdrawal of its capital from any Investment Portfolio Funds in order to fund the repurchase of Interests, ten Business Days such payment may be postponed until a reasonable time after the Fund has received at least 95% of the aggregate amount so requested to be withdrawn by the Fund from Portfolio Funds (the Investment Funds.
(5) “Portfolio Fund Payment Date”). The second and final payment in respect of the a Promissory Note (the “Post-Audit Final Payment”) is expected to be in an amount equal to the excess, if any, of (i1) the net asset value of the repurchased Interest or portion thereof, determined as of the Repurchase Valuation Date and based upon the results of the annual audit of the Fund’s financial statements of the Fund for the year Fiscal Year in which the Repurchase Valuation Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchaseof such repurchase occurred, over (ii2) the Initial Payment. The Fund anticipates that the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve Notwithstanding anything in that capacity under this Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice 4.6 to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fundcontrary, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be if a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase, would continue to hold at least 5% of the aggregate value of its Units as of the Valuation Date, the Final Payment in respect of such repurchase shall be made on or before the 60th day after the Repurchase Date, provided that if the Fund, in the sole discretion of the Adviser, has requested withdrawals of its capital from any Portfolio Funds in order to fund the repurchase of Interests, such payment may be postponed until 10 business days after the applicable Portfolio Fund Payment Date. If a Member (other than the Managing Member) tenders Such payment shall be in an amount equal to the excess, if any, of (1) the value of the repurchased Interest or portion thereof, determined as of the Valuation Date, based upon information known to the Fund as of the date of the Final Payment, over (2) the Initial Payment. Notwithstanding anything in this Agreement to the contrary, if, based upon the results of the annual audit of the financial statements of the Fund for the Fiscal Year in which the Valuation Date of such repurchase occurred, it is determined that would cause the value at which the Interest was repurchased was incorrect, the Fund shall, as promptly as practicable after the completion of such audit, decrease such Member’s Capital Account balance to fall below the required minimum, the Fund shall have the right to either (1) reduce by the amount to be repurchased from the Member so that the required minimum balance is maintained of any overpayment, or (2) repurchase the remainder of the Member’s Interest in the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the increase such Member’s Capital Account balance by the amount of any underpayment, as applicable.
(g) Notwithstanding anything in this Section 4.6 to the Fundcontrary, the Board of Managers shall modify any of the repurchase procedures described in this Section 4.6 if necessary to comply with the regulatory requirements imposed by the Securities Exchange Commission.
(h) Each Member whose Interest or portion thereof has been accepted for repurchase will continue to be a Member until the Repurchase Date (and thereafter if its Interest is repurchased in part) and may exercise its voting rights with respect to the repurchased Interest or portion thereof until the Repurchase Date. Moreover, the Capital Account maintained in respect of a Member whose Interest or portion thereof has been accepted for repurchase will be adjusted for the Net Profits or Net Losses of the Fund through the Valuation Date, and such Member’s Capital Account shall not be adjusted for the amount withdrawn, as a result of repurchase or Transfer by the Memberrepurchase, is less than $50,000. If prior to the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a MemberRepurchase Date.
(i) Repurchases Upon its acceptance of tendered Interests from Members by or portions thereof for repurchase, the Fund may shall maintain daily on its books a segregated account consisting of cash, liquid securities or, to the extent applicable, interests in Portfolio Funds that the Master Fund (i) has requested be paid, withdrawn or (ii) is in the discretion process of liquidating, (or any combination of them) in an amount equal to the aggregate estimated unpaid dollar amount of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not Promissory Notes issued to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basisor portions thereof.
(j) The Notwithstanding anything in this Section 4.6 to the contrary, the Fund may suspend suspend, postpone or postpone terminate a repurchase offer in certain limited circumstances, and only by a vote upon the determination of a majority of the Board of Directors, Managers (including a majority of Independent Managers) that such suspension, postponement or termination is advisable for the Independent Directors. These Fund and its Members, including, without limitation, the existence of circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns its investments or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) Net Asset Value or other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Memberscircumstances.
(k) A fee (Partial Interests of a “Repurchase Fee”) Member tendered for repurchase will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be treated as having been repurchased on a “first in – in-first out” basis (in other wordsi.e., the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation Net Profits and depreciationNet Losses) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zeroadjusted for subsequent Net Profits and Net Losses). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s Interest under Section 4.5(g).
(l) A repurchase of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Partners Group Private Equity (Master Fund), LLC)
Repurchase of Interests. (a) No Member or other Person holding an Interest acquired from a Member will have the right to require the Fund to redeem or otherwise repurchase the Interest.
(b) The Fund may from time to time repurchase Interests from Members in accordance with written tenders by Members at those times, in those amounts, and on terms and conditions as the Board of Directors may determine in its sole discretion. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects and the Managing Member expect that it they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to accept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Members have requested to tender Interests to the Fund;
(2) the liquidity of the Fund’s 's assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Fund;
(4) the relative economies of scale of the tenders with respect to the size of the Fund;
(5) the history of the Fund in repurchasing Interests;
(6) the availability of information as to the value of the Fund’s 's interests in Investment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) any anticipated tax consequences to the Fund of any proposed repurchases of Interests; and
(9) the recommendations of the Managing Member and/or the Investment Manager.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that the Board of Directors determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s 's Interest will be calculated in accordance with the Fund’s 's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that datedate (including any Incentive Allocation to the Special Member in respect of the Interest (or portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the “"Notice Due Date”"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “"Promissory Note”") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund’s 's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the “"Initial Payment”") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 45 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from any Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the “"Post-Audit Payment”") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund’s 's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Fund Managing Member anticipates that the annual audit of the Fund’s 's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “"Special Laws or Regulations”"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member’s 's Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member’s 's Capital Account balance to fall below the required minimum, the Fund Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s 's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund may to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member’s 's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the FundManaging Member, in cash, or by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s 's net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a “"Repurchase Fee”") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s 's purchase of the Interest. Partial Interests will be repurchased on a “"first in – - first out” " basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s Managing Member's discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s 's Interest under Section 4.5(g).
(l) A repurchase of a Member’s 's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s 's then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund and the Managing Member on behalf of the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s 's Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Jp Morgan Multi-Strategy Fund LLC)
Repurchase of Interests. (a) No Except as otherwise provided in this Agreement, no Member or other Person person holding an Interest or portion thereof acquired from a Member will have has the right to require the Fund to withdraw, redeem or otherwise tender to the Fund for repurchase the Interest.
(b) its Interest or any portion thereof. The Fund may Board of Managers may, from time to time repurchase Interests from Members and in accordance with written tenders by Members at those times, in those amounts, its sole discretion and on such terms and conditions as it may determine, cause the Fund to offer to repurchase Interests from Members, including the Adviser or its Affiliates, pursuant to written tenders by Members. The Board of Directors may determine Managers, in its sole discretion, will determine the aggregate value of Interests to be repurchased, which may be a percentage of the value of the Fund’s outstanding interests. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless In determining whether the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund should offer to repurchase Interests from Members approximately six months after pursuant to written requests and the Initial Closing Date (or, if such date is not the last day amount of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether Interests to accept such a recommendationbe repurchased, the Board of Directors will Managers may consider the following factors, among others:
(1i) The liquidity of the Fund’s assets (including, without limitation, fees and costs associated with withdrawing from Portfolio Funds);
(ii) whether any Members have requested to tender Interests or portions of Interests to the Fund;
(2iii) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve liquidity requirements of the Fund;
(4iv) the relative economies of scale sizes of the tenders with respect to the size of repurchase requests and the Fund;
(5v) the history past practice of the Fund in repurchasing Interests;
(6vi) the availability of information as to the value of the Fund’s interests in Investment Funds;
(7) the existing conditions condition of the securities markets market and the economy generally, as well as political, national or international developments or current affairs;
(8) any vii) the anticipated tax consequences to the Fund of any proposed repurchases of Interests;
(viii) the Fund’s investment plans; and
(9ix) the recommendations availability of information as to the value of the Investment ManagerFund’s interests in Portfolio Funds and other investments.
(b) The Adviser and each of its Affiliates may tender their Interests or a portion thereof as a Member or Organizational Member, as applicable, under Section 4.4(a) hereof, without notice to the other Members.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that If the Board of Directors Managers determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When the Board of Directors determines its sole discretion that the Fund will offer to repurchase Interests, the Board of Managers will provide written notice to Members. Such notice will be provided to Members, specifying include: (i) the commencement date of the repurchase offer; (ii) the Expiration Date on which repurchase requests must be received by the Fund Fund; and (the “Notice Due Date”), describing the terms of the offer, containing iii) other information Members should consider in deciding whether and how to participate in the such repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the periodopportunity.
(d) The Fund expects amount due to employ the following repurchase proceduresany Member whose Interests or portion thereof is repurchased shall, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice subject to the Members:
terms of this Agreement (1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Dateincluding, which generally will without limitation, Section 4.4(a)), be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “Promissory Note”) entitling the Member to be paid an amount equal to the net asset value, value of the Member’s Interests (or portion thereof being repurchased) based on the Net Asset Value of the Fund as of the Repurchase Valuation Date, after reduction for all fees, including any Investment Management Fee or Administration Fee, any Incentive Fee, any required tax withholding and other liabilities of the repurchased InterestFund to the extent accrued or otherwise attributable to the Interests or portion thereof being repurchased, provided that, subject to applicable law, the Board of Managers may offer to purchase Interests at a discount to the Net Asset Value (a “Discount Repurchase Offer”). Payment by the Fund to each Member, upon repurchase of such Member’s Interests shall be made in the form of a promissory note (a “Promissory Note”). Such payment shall be made as promptly as practicable following the Expiration Date. Any in-kind distribution of Securities will be valued in accordance with Section 7.4 hereof. The determination of the value of Interests as of the Repurchase Valuation Date is shall be subject to adjustment based upon the results of the next annual audit of the Fund’s financial statementsstatements for the Fiscal Year in which such Valuation Date occurred. A Member who tenders some but not all of his Interests for repurchase will be required to maintain a minimum Account balance equal to the amount set forth, from time to time, in the Fund’s Form N-2. The Board of Managers may, in its sole discretion, waive this minimum Account balance requirement. The Fund may reduce the amount to be repurchased from a Member in order to maintain a Member’s minimum Account balance.
(3e) The Each Promissory NoteNote issued pursuant to clause (d) of this Section 4.4, which will shall be non-interest-interest bearing and non-transferable, is expected to contain and shall provide, among other terms providing for payment at two separate times.
(4) determined by the Fund, in its sole discretion, the following payments. The initial payment in respect of the Promissory Note (the “Initial Payment”) will shall be in an amount equal to at least 95% of the net asset estimated value of the repurchased Interest Interests or portion thereof, determined as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchaseValuation Date. The Initial Payment will shall be made on or before the later of (i) 45 days twentieth business day after the Repurchase Date, or (ii) provided that if the Fund Fund, in the sole discretion of the Adviser, has requested withdrawals withdrawal of its capital from any Investment Portfolio Funds in order to fund the repurchase of Interests, ten Business Days such payment may be postponed until a reasonable time after the Fund has received at least 95% of the aggregate amount so requested to be withdrawn by the Fund from Portfolio Funds (the Investment Funds.
(5) “Portfolio Fund Payment Date”). The second and final payment in respect of the a Promissory Note (the “Post-Audit Final Payment”) is expected to be in an amount equal to the excess, if any, of (i1) the net asset value of the repurchased Interest Interests or portion thereof, determined as of the Repurchase Valuation Date and based upon the results of the annual audit of the Fund’s financial statements of the Fund for the year Fiscal Year in which the Repurchase Valuation Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchaseof such repurchase occurred, over (ii2) the Initial Payment. The Fund anticipates that the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve Notwithstanding anything in that capacity under this Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice 4.4 to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fundcontrary, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be if a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase, would continue to hold at least 5% of the aggregate value of its Interests as of the Valuation Date, the Final Payment in respect of such repurchase shall be made on or before the 60th day after the Repurchase Date, provided that if the Fund, in the sole discretion of the Adviser, has requested withdrawals of its capital from any Portfolio Funds in order to fund the repurchase of Interests, such payment may be postponed until 10 business days after the applicable Portfolio Fund Payment Date. If a Member (other than the Managing Member) tenders Such payment shall be in an amount equal to the excess, if any, of (1) the value of the repurchased Interests or portion thereof, determined as of the Valuation Date, based upon information known to the Fund as of the date of the Final Payment, over (2) the Initial Payment. Notwithstanding anything in this Agreement to the contrary, if, based upon the results of the annual audit of the financial statements of the Fund for the Fiscal Year in which the Valuation Date of such repurchase occurred, it is determined that would cause the Member’s Capital Account balance to fall below value at which the required minimumInterests was repurchased was incorrect, the Fund shall have shall, as promptly as practicable after the right to either (1) reduce completion of such audit, decrease such Member’s Account balance by the amount of any overpayment, or increase such Member’s Account balance by the amount of any underpayment, as applicable.
(g) Notwithstanding anything in this Section 4.4 to the contrary, the Board of Managers shall modify any of the repurchase procedures described in this Section 4.4 if necessary to comply with the regulatory requirements imposed by the Securities and Exchange Commission.
(h) Each Member whose Interests have or portion thereof has been accepted for repurchase will continue to be a Member until the Repurchase Date (and thereafter if its Interests are repurchased from in part) and may exercise its voting rights with respect to the repurchased Interest or portion thereof until the Repurchase Date. Moreover, the Account maintained in respect of a Member so that whose Interests have or portion thereof has been accepted for repurchase will be adjusted for the required minimum balance is maintained appreciation or (2) repurchase the remainder depreciation of the Net Asset Value of the Fund through the Valuation Date, and such Member’s Interest in Account shall not be adjusted for the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fundamount withdrawn, as a result of repurchase or Transfer by the Memberrepurchase, is less than $50,000. If prior to the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a MemberRepurchase Date.
(i) Repurchases Upon its acceptance of tendered Interests from Members by or portions thereof for repurchase, the Fund may shall maintain daily on its books a segregated account consisting of cash, liquid securities or, to the extent applicable, interests in Portfolio Funds that the Fund (i) has requested be paid, withdrawn or (ii) is in the discretion process of liquidating, (or any combination of them) in an amount equal to the aggregate estimated unpaid dollar amount of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not Promissory Notes issued to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basisor portions thereof.
(j) The Notwithstanding anything in this Section 4.4 to the contrary, the Fund may suspend suspend, postpone or postpone terminate a repurchase offer in certain limited circumstances, and only by a vote upon the determination of a majority of the Board of Directors, Managers (including a majority of Independent Managers) that such suspension, postponement or termination is advisable for the Independent Directors. These Fund and its Members, including, without limitation, the existence of circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns its investments or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) Net Asset Value or other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Memberscircumstances.
(k) A fee (Partial Interests of a “Repurchase Fee”) Member tendered for repurchase will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be treated as having been repurchased on a “first in – in-first out” basis (in other wordsi.e., the portion of the Interest Interests repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciationor depreciation of the Net Asset Value of the Fund) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjustedadjusted for subsequent appreciation or depreciation of the Net Asset Value of the Fund)).
(l) until such Capital Contribution is decreased to zero). Other than any Where an early repurchase fee (an "Early Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee ") will be charged by the Fund in connection with respect to any repurchase of Interests from a Member’s Interest under Section 4.5(g).
(l) A repurchase Member at any time prior to the day immediately preceding the two-year anniversary of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the commencement of operations of the Fund may determine in its sole discretion, provided that (1) valuation of or the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s thenone-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account year anniversary of the Member’s Interest's purchase of Interests, if such repurchase or distribution would violate as applicable, the Delaware Act or other applicable lawEarly Repurchase Fee may be waived where the Board of Managers determines that doing so is in the best interest of the Fund.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Partners Group Next Generation Infrastructure LLC)
Repurchase of Interests. (a) No Member or other Person holding an Interest acquired from a Member will have the right to require the Fund to redeem or otherwise repurchase the Interest.
(b) The Fund may from time to time repurchase Interests from Members in accordance with written tenders by Members at those times, in those amounts, and on terms and conditions as the Board of Directors may determine in its sole discretion. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects and the Managing Member expect that it they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to accept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Members have requested to tender Interests to the Fund;
(2) the liquidity of the Fund’s 's assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Fund;
(4) the relative economies of scale of the tenders with respect to the size of the Fund;
(5) the history of the Fund in repurchasing Interests;
(6) the availability of information as to the value of the Fund’s 's interests in Investment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) any anticipated tax consequences to the Fund of any proposed repurchases of Interests; and
(9) the recommendations of the Managing Member and/or the Investment Manager.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that the Board of Directors determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s 's Interest will be calculated in accordance with the Fund’s 's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that datedate (including any Incentive Allocation to the Special Member in respect of the Interest (or portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the “"Notice Due Date”"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “"Promissory Note”") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund’s 's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the “"Initial Payment”") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 45 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from any Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the “"Post-Audit Payment”") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund’s 's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Fund Managing Member anticipates that the annual audit of the Fund’s 's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “"Special Laws or Regulations”"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member’s 's Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member’s 's Capital Account balance to fall below the required minimum, the Fund Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s 's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund may to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member’s 's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the FundManaging Member, in cash, or by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s 's net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a “"Repurchase Fee”") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s 's purchase of the Interest. Partial Interests will be repurchased on a “"first in – - first out” " basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s Managing Member's discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s 's Interest under Section 4.5(g).
(l1) A repurchase of a Member’s 's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s 's then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Jp Morgan Multi-Strategy Fund LLC)
Repurchase of Interests. (a) No Member or other Person holding an Interest acquired from a Member will have the right to require the Fund to redeem or otherwise repurchase the Interest.
(b) The Fund may from time to time repurchase Interests from Members in accordance with written tenders by Members at those times, in those amounts, and on terms and conditions as the Board of Directors may determine in its sole discretion. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects and the Managing Member expect that it they will recommend to the Board of Directors that the Fund offer to repurchase Interests from Members approximately six months after the Initial Closing Date (or, if such date is not the last day of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether to accept such a recommendation, the Board of Directors will consider the following factors, among others:
(1) whether any Members have requested to tender Interests to the Fund;
(2) the liquidity of the Fund’s 's assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve requirements of the Fund;
(4) the relative economies of scale of the tenders with respect to the size of the Fund;
(5) the history of the Fund in repurchasing Interests;
(6) the availability of information as to the value of the Fund’s 's interests in Investment Funds;
(7) the existing conditions of the securities markets and the economy generally, as well as political, national or international developments or current affairs;
(8) any anticipated tax consequences to the Fund of any proposed repurchases of Interests; and
(9) the recommendations of the Managing Member and/or the Investment Manager.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that the Board of Directors determines to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s 's Interest will be calculated in accordance with the Fund’s 's procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that datedate (including any Performance Allocation to the Special Member in respect of the Interest (or portion of the Interest) being repurchased). When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the “"Notice Due Date”"), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its their sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “"Promissory Note”") entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund’s 's financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the “"Initial Payment”") will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 45 30 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from any Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the “"Post-Audit Payment”") is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund’s 's financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Fund Managing Member anticipates that the annual audit of the Fund’s 's financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Post-Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Special Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund Managing Member in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund Managing Member or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Special Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “"Special Laws or Regulations”"), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member or the Special Member) tendering for repurchase only a portion of the Member’s 's Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member or the Special Member) tenders an amount that would cause the Member’s 's Capital Account balance to fall below the required minimum, the Fund Managing Member shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s 's Interest in the Fund. The Managing Member may, in its sole discretion, cause the Fund may to repurchase the entire Interest held by a Member (other than the Managing Member or Special Member) if the Member’s 's Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member or Special Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the FundManaging Member, in cash, or by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s 's net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Members.
(k) A fee (a “"Repurchase Fee”") will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s 's purchase of the Interest. Partial Interests will be repurchased on a “"first in – - first out” " basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s Managing Member's discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s 's Interest under Section 4.5(g).
(l) A repurchase of a Member’s 's Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund Managing Member may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s 's then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund and the Managing Member on behalf of the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s 's Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Jp Morgan Multi-Strategy Fund LLC)
Repurchase of Interests. (a) No Except as otherwise provided in this Agreement, no Member or other Person holding an Interest or portion thereof acquired from a Member will have has the right to require the Fund to withdraw, redeem or otherwise tender to the Fund for repurchase the Interest.
(b) its Interest or any portion thereof. The Fund may Board of Managers may, from time to time repurchase Interests from Members and in accordance with written tenders by Members at those times, in those amounts, its sole discretion and on such terms and conditions as it may determine, cause the Fund to offer to repurchase Interests from Members, including the Adviser, the Sub-Adviser or their Affiliates, pursuant to written tenders by Members. The Board of Directors may determine Managers, in its sole discretion, will determine the aggregate value of Interests to be repurchased, which may be a percentage of the value of the Fund’s outstanding Interests. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless In determining whether the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund should offer to repurchase Interests from Members approximately six months after pursuant to written requests and the Initial Closing Date (or, if such date is not the last day amount of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether Interests to accept such a recommendationbe repurchased, the Board of Directors will Managers may consider the following factors, among others:
(1i) the liquidity of the Fund’s assets (including, without limitation, fees and costs associated with withdrawing from Portfolio Funds);
(ii) whether any Members have requested to tender Interests or portions of Interests to the Fund;
(2iii) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve liquidity requirements of the Fund;
(4iv) the relative economies of scale of the tenders repurchase requests with respect to the size of the Fund;
(5v) the history past practice of the Fund in repurchasing Interests;
(6vi) the availability of information as to the value of the Fund’s interests in Investment Funds;
(7) the existing conditions condition of the securities markets market and the economy generally, as well as political, national or international developments or current affairs;; and
(8) any vii) the anticipated tax consequences to the Fund of any proposed repurchases of Interests; and
(9viii) the recommendations availability of information as to the value of the Investment Manager.
(c) Fund’s interests in Portfolio Funds. The Board of Managers shall cause the Fund will to repurchase Interests from Members at net asset value in accordance with or portions thereof pursuant to written tenders only on terms and conditions that the Board of Directors Managers determines to be fair to the Fund and to all Members Members.
(b) The Adviser, the Sub-Adviser and each of their Affiliates may tender their Interest or Persons holding Interests acquired from a portion thereof as a Member or Organizational Member, as applicable, under Section 4.6(a) hereof, without notice to the other Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When .
(c) If the Board of Directors Managers determines in its sole discretion that the Fund will offer to repurchase Interests, the Board of Managers will provide written notice to Members. Such notice will be provided to Members, specifying include: (i) the commencement date of the repurchase offer; (ii) the Expiration Date on which repurchase requests must be received by the Fund Fund; and (the “Notice Due Date”), describing the terms of the offer, containing iii) other information Members should consider in deciding whether and how to participate in the such repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the periodopportunity.
(d) The Fund expects amount due to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each any Member whose Interest has been accepted for repurchase a promissory note or portion thereof is repurchased shall, subject to the terms of this Agreement (the “Promissory Note”) entitling the Member to including, without limitation, Section 4.6(a)), be paid an amount equal to the net asset value, value of the Member’s Capital Account (or portion thereof being repurchased) based on the Net Asset Value of the Fund as of the Repurchase Valuation Date, after reduction for all fees, including any Investment Management Fee or Administration Fee, any Incentive Allocation, any required tax withholding and other liabilities of the repurchased InterestFund to the extent accrued or otherwise attributable to the Interest or portion thereof being repurchased. Payment by the Fund to each Member, upon repurchase of such Member’s Interests, shall be made in the form of a promissory note (a “Promissory Note”). Such payment shall be made as promptly as practicable following the Expiration Date. Any in-kind distribution of Securities will be valued in accordance with Section 7.4 hereof. The determination of the value of Interests as of the Repurchase Valuation Date is shall be subject to adjustment based upon the results of the next annual audit of the Fund’s financial statementsstatements for the Fiscal Year in which such Valuation Date occurred. A Member who tenders some but not all of his Interest for repurchase will be required to maintain a minimum Capital Account balance equal to the amount set forth, from time to time, in the Fund’s Form N-2. The Board of Managers may, in its sole discretion, waive this minimum Capital Account balance requirement. The Fund may reduce the amount to be repurchased from a Member in order to maintain a Member’s minimum Capital Account balance.
(3e) The Each Promissory NoteNote issued pursuant to clause (d) of this Section 4.6, which will be non-interest-interest bearing and non-transferable, is expected to contain shall provide, among other terms providing for payment at two separate times.
(4) determined by the Fund, in its sole discretion, the following payments. The initial payment in respect of the Promissory Note (the “Initial Payment”) will shall be in an amount equal to at least 9590% of the net asset estimated value of the repurchased Interest or portion thereof, determined as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchaseValuation Date. The Initial Payment will shall be made on or before the later of (i) 45 days ninetieth calendar day after the Repurchase Date, or (ii) provided that if the Fund , in the sole discretion of the Adviser or the Sub-Adviser, has requested withdrawals withdrawal of its capital from any Investment Portfolio Funds in order to fund the repurchase of Interests, ten Business Days such payment may be postponed until a reasonable time after the Fund has received at least 9590% of the aggregate amount so requested to be withdrawn by the Fund from the Investment Funds.
Portfolio Fund (5) the “Portfolio Fund Payment Date”). The second and final payment in respect of the a Promissory Note (the “Post-Audit Final Payment”) is expected to be in an amount equal to the excess, if any, of (i1) the net asset value of the repurchased Interest or portion thereof, determined as of the Repurchase Valuation Date and based upon the results of the annual audit of the Fund’s financial statements of the Fund for the year Fiscal Year in which the Valuation Date of such repurchase occurred, over (2) the Initial Payment.
(f) Notwithstanding anything in this Section 4.6 to the contrary, in the event that a Member has requested the repurchase of a portion of its Interest which would result in such Member continuing to hold at least 5% of the value of its Interest as of March 31 of the Fiscal Year ending immediately prior to the Fiscal Year in which such request was made, the Final Payment in respect of such repurchase shall be made approximately 90 days after the Repurchase Date occursDate, less provided that if the Fund, in the sole discretion of the Adviser, has requested withdrawals of its capital from any Repurchase Fee due Portfolio Funds in order to fund the repurchase of Interests, such payment may be postponed until a reasonable time after the applicable Portfolio Fund Payment Date. Such payment shall be in an amount equal to the excess, if any, of (1) the value of the repurchased Interest or portion thereof, determined as of the Valuation Date, based upon information known to the Fund in connection with as of the repurchasedate of the Final Payment, over (ii2) the Initial Payment. The Fund anticipates that Notwithstanding anything in this Agreement to the contrary, if, based upon the results of the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and for the Fiscal Year in which the Valuation Date of such repurchase occurred, it is determined that the Post- Audit Payment will be made value at which the Interest was repurchased was incorrect, the Fund shall, as promptly as practicable after the completion of the such audit.
(e) In the event that the Managing , decrease such Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made ’s Capital Account balance by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 amount of this Agreement (other than under Section 4.1(c) of this Agreement)any overpayment, the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On increase such date, the Board of Directors will cause the Interest to be repurchased Member’s Capital Account balance by the Fund for cash at a valuation determined by the Board amount of Directors in accordance with Section 4.5(c) of this Agreementany underpayment, and the former Managing Member will thereupon cease to be a Memberas applicable.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund Notwithstanding anything in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious this Section 4.6 to the business or reputation of the Fundcontrary, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or Managers shall modify any of the Members repurchase procedures described in this Section 4.6 if necessary to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection comply with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those requirements imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the InterestSecurities and Exchange Commission.
(h) A Each Member (other than the Managing Member) tendering whose Interest or portion thereof has been accepted for repurchase only will continue to be a portion Member of the Member’s Fund until the Repurchase Date (and thereafter if its Interest is repurchased in part) and may exercise its voting rights with respect to the repurchased Interest or portion thereof until the Repurchase Date. Moreover, the Capital Account maintained in respect of a Member whose Interest or portion thereof has been accepted for repurchase will be required to maintain a Capital Account balance adjusted for the Net Profits or Net Losses of at least $50,000 after giving effect to the repurchase. If a Member (other than Fund through the Managing Member) tenders an amount that would cause the Valuation Date, and such Member’s Capital Account balance to fall below the required minimum, the Fund shall have the right to either (1) reduce not be adjusted for the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s Interest in the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fundwithdrawn, as a result of repurchase or Transfer by the Memberrepurchase, is less than $50,000. If prior to the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a MemberRepurchase Date.
(i) Repurchases Upon its acceptance of tendered Interests from Members by or portions thereof for repurchase, the Fund may be paidshall maintain daily on its books a segregated account consisting of cash, liquid securities or interests in Portfolio Funds that the discretion Fund has requested withdrawn (or any combination of them) in an amount equal to the aggregate estimated unpaid dollar amount of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not Promissory Notes issued to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basisor portions thereof.
(j) The Notwithstanding anything in this Section 4.6 to the contrary, the Fund may suspend suspend, postpone or postpone terminate a repurchase offer in certain limited circumstances, and only by a vote upon the determination of a majority of the Board of Directors, Managers (including a majority of Independent Managers) that such suspension, postponement or termination is advisable for the Independent Directors. These Fund and its Members, including, without limitation, circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns its investments or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) Net Asset Value or other unusual circumstances as the Board of Directors in its discretion deems advisable to the Fund and its Memberscircumstances.
(k) A fee (a “Repurchase Fee”) will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary of the Member’s purchase of the Interest. Partial Interests will be repurchased on a “first in – first out” basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s Interest under Section 4.5(g).
(l) A repurchase of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (Hatteras Global Private Equity Partners Master Fund, LLC)
Repurchase of Interests. (a) No Except as otherwise provided in this Agreement, no Member or other Person person holding an Interest or portion thereof acquired from a Member will have has the right to require the Fund to withdraw, redeem or otherwise tender to the Fund for repurchase the Interest.
(b) its Interest or any portion thereof. The Fund may Board of Managers may, from time to time repurchase Interests from Members and in accordance with written tenders by Members at those times, in those amounts, its sole discretion and on such terms and conditions as it may determine, cause the Fund to offer to repurchase Interests from Members, including J.▇. ▇▇▇▇▇▇▇ or its Affiliates, pursuant to written tenders by Members. The Board of Directors may determine Managers, in its sole discretion, will determine the aggregate value of Interests to be repurchased, which may be a percentage of the value of the Fund’s outstanding interests. The Fund will not offer to repurchase Interests on more than four occasions during any one Fiscal Year, unless In determining whether the Fund has been advised by legal counsel to the Fund to the effect that more frequent offers would not cause any adverse tax consequences to the Fund or the Members. The Investment Manager expects that it will recommend to the Board of Directors that the Fund should offer to repurchase Interests from Members approximately six months after pursuant to written requests and the Initial Closing Date (or, if such date is not the last day amount of a calendar quarter, the last day of that calendar quarter), and, after that date, quarterly, effective as of the last day of March, June, September and December. In determining whether Interests to accept such a recommendationbe repurchased, the Board of Directors will Managers may consider the following factors, among others:
(1i) The liquidity of the Fund’s assets (including, without limitation, fees and costs associated with withdrawing from Sub-Manager Funds);
(ii) whether any Members have requested to tender Interests or portions of Interests to the Fund;
(2iii) the liquidity of the Fund’s assets (including fees and costs associated with withdrawing from Investment Funds and/or disposing of assets managed by Subadvisers);
(3) the investment plans and working capital and reserve liquidity requirements of the Fund;
(4iv) the relative economies of scale of the tenders repurchase requests with respect to the size of the Fund;
(5v) the history past practice of the Fund in repurchasing Interests;
(6vi) the availability of information as to the value of the Fund’s interests in Investment Funds;
(7) the existing conditions condition of the securities markets market and the economy generally, as well as political, national or international developments or current affairs;
(8) any vii) the anticipated tax consequences to the Fund of any proposed repurchases of Interests; and
(9viii) the recommendations availability of the Investment Manager.
(c) The Fund will repurchase Interests from Members at net asset value in accordance with written tenders on terms and conditions that the Board of Directors determines information as to be fair to the Fund and to all Members or Persons holding Interests acquired from Members. The net asset value of a Member’s Interest will be calculated in accordance with the Fund’s procedures as of the relevant Repurchase Date, after giving effect to all allocations that are made as of that date. When the Board of Directors determines that the Fund will repurchase Interests, notice will be provided to Members, specifying the date on which repurchase requests must be received by the Fund (the “Notice Due Date”), describing the terms of the offer, containing information Members should consider in deciding whether to participate in the repurchase opportunity and containing information on how to participate. The Notice Due Date will be a date set by the Board of Directors occurring no sooner than 20 Business Days after the commencement of the repurchase offer and such date may be extended by the Board of Directors in its absolute discretion. Members deciding whether to tender their Interests during the period that a repurchase offer is open may obtain the most recently calculated net asset value of their Interests by contacting the Investment Manager during the period.
(d) The Fund expects to employ the following repurchase procedures, which procedures may be deviated from, varied or amended by the Board of Directors in its sole discretion upon notice to the Members:
(1) A Member choosing to tender an Interest for repurchase must do so by the Notice Due Date, which generally will be the 25th calendar day of the second month prior to the month in which the Repurchase Date falls (or, if such date is not a Business Day, the preceding Business Day).
(2) Promptly after the Notice Due Date, the Fund will give to each Member whose Interest has been accepted for repurchase a promissory note (the “Promissory Note”) entitling the Member to be paid an amount equal to the net asset value, as of the Repurchase Date, of the repurchased Interest. The determination of the value of Interests as of the Repurchase Date is subject to adjustment based upon the results of the next annual audit of the Fund’s financial statements.
(3) The Promissory Note, which will be non-interest-bearing and non-transferable, is expected to contain terms providing for payment at two separate times.
(4) The initial payment in respect of the Promissory Note (the “Initial Payment”) will be in an amount equal to at least 95% of the net asset value of the repurchased Interest as of the Repurchase Date less any Repurchase Fee due to the Fund in connection with the repurchase. The Initial Payment will be made on or before the later of (i) 45 days after the Repurchase Date, or (ii) if the Fund has requested withdrawals of its capital from any Investment Funds in order to fund the repurchase of Interests, ten Business Days after the Fund has received at least 95% of the aggregate amount withdrawn by the Fund from the Investment Funds.
(5) The second and final payment in respect of the Promissory Note (the “Post-Audit Payment”) is expected to be in an amount equal to the excess, if any, of (i) the net asset value of the repurchased Interest as of the Repurchase Date and based upon the results of the annual audit of the Fund’s financial statements for the year in which the Repurchase Date occurs, less any Repurchase Fee due to the Fund in connection with the repurchase, over (ii) the Initial Payment. The Fund anticipates that the annual audit of the Fund’s financial statements will be completed within 60 days after the end of each Fiscal Year of the Fund and that the Post- Audit Payment will be made promptly after the completion of the audit.
(e) In the event that the Managing Member, the Investment Manager or any of their respective Affiliates holds an Interest in his, her or its capacity as a Member, the Interest may be tendered for repurchase in connection with any repurchase offer made by the Fund.
(f) If the Managing Member ceases to serve in that capacity under Section 4.1 of this Agreement (other than under Section 4.1(c) of this Agreement), the Board of Directors may, by written notice to the former Managing Member (or its trustee or other legal representative) within 60 days of the former Managing Member ceasing to serve as managing member of the Fund, require the former Managing Member to tender to the Fund its entire Interest on a date set out in the notice. On such date, the Board of Directors will cause the Interest to be repurchased by the Fund for cash at a valuation determined by the Board of Directors in accordance with Section 4.5(c) of this Agreement, and the former Managing Member will thereupon cease to be a Member.
(g) The Fund may repurchase an Interest of a Member or any Person acquiring an Interest from or through a Member without consent or other action by the Member or other Person if the Fund in its sole discretion determines that:
(1) the Interest has been Transferred or has vested in any Person other than with the consent of the Fund or by operation of law as the result of the death, divorce, bankruptcy, insolvency, adjudicated incompetence or dissolution of the Member;
(2) ownership of the Interest by a Member or other Person is likely to cause the Fund to be in violation of, or require registration of any Interest under, or subject the Fund to additional registration or regulation under, the securities, commodities or other laws of the United States or any other relevant jurisdiction;
(3) continued ownership of the Interest may be harmful or injurious to the business or reputation of the Fund, the Board of Directors, the Managing Member, the Investment Manager or any of their Affiliates, or may subject the Fund or any of the Members to an undue risk of adverse tax or other fiscal or regulatory consequences;
(4) any of the representations and warranties made by a Member or other Person in connection with the acquisition of the Interest was not true when made or has ceased to be true;
(5) with respect to a Member subject to special regulatory or compliance requirements, such as those imposed by Employee Retirement Income Security Act of 1974, the Bank Holding Company Act of 1956 or certain Federal Communication Commission regulations (collectively, “Special Laws or Regulations”), such Member will likely be subject to additional regulatory or compliance requirements under these Special Laws or Regulations by virtue of continuing to hold an Interest; or
(6) it would be in the best interests of the Fund for the Fund to repurchase the Interest.
(h) A Member (other than the Managing Member) tendering for repurchase only a portion of the Member’s Interest will be required to maintain a Capital Account balance of at least $50,000 after giving effect to the repurchase. If a Member (other than the Managing Member) tenders an amount that would cause the Member’s Capital Account balance to fall below the required minimum, the Fund shall have the right to either (1) reduce the amount to be repurchased from the Member so that the required minimum balance is maintained or (2) repurchase the remainder of the Member’s Interest in the Fund. The Fund may repurchase the entire Interest held by a Member (other than the Managing Member) if the Member’s Capital Account balance in the Fund, as a result of repurchase or Transfer by the Member, is less than $50,000. If the entire Interest of a Member (other than the Managing Member) is repurchased, that Member will cease to be a Member.
(i) Repurchases of Interests from Members by the Fund may be paid, in the discretion of the Fund, in cash, by the distribution of Securities in-kind or partly in cash and partly in-kind. The Fund, however, expects not to distribute Securities in-kind, except in the unlikely event that making a cash payment would result in a material adverse effect on the Fund or on Members not tendering Interests for repurchase. Any Securities distributed will be valued in accordance with this Agreement and will be distributed to all tendering Members on a proportional basis.
(j) The Fund may suspend or postpone a repurchase offer in certain limited circumstances, and only by a vote of a majority of the Board of Directors, including a majority of the Independent Directors. These circumstances include the following:
(1) for any period during which circumstances exist as a result of which it is not reasonably practicable for the Fund to dispose of Securities it owns or to determine the value of the Fund’s net assets;
(2) for any other periods that the SEC permits by order for the protection of Members; or
(3) other unusual circumstances as the Board of Directors interests in its discretion deems advisable Sub-Manager Funds. Each repurchase offer will be limited to the Fund and its Members.
(k) A fee (a “Repurchase Fee”) will be charged by the Fund on any repurchase of an Interest from a Member at any time prior to the day immediately preceding the one-year anniversary approximately 5% of the Member’s purchase Interests (but in no event to exceed the repurchase of 20% of the Interest. Partial Interests will be repurchased on a “first in – first out” basis (in other words, the portion of the Interest repurchased will be deemed to have been taken from the earliest Capital Contribution made by such Member (adjusted for subsequent appreciation and depreciation) until that Capital Contribution is decreased to zero, and then from each subsequent Capital Contribution made by such Member (as adjusted) until such Capital Contribution is decreased to zero). Other than any Repurchase Fee, the Fund will not impose any charges in connection with repurchases of Interests. At the Fund’s discretion, no Repurchase Fee will be charged by the Fund in connection with any repurchase of a Member’s Interest under Section 4.5(gper quarter).
(l) A repurchase of a Member’s Interest under Sections 4.5(g) or (h) shall be on terms and conditions as the Fund may determine in its sole discretion, provided that (1) valuation of the Interest shall be determined in accordance with Section 4.5(c), and (2) payment for the Interest shall be made no later than as provided under the Fund’s then-current tender offer procedures.
(m) Notwithstanding any provision to the contrary contained in this Agreement, the Fund will not repurchase any Interest or make a distribution to any Member on account of the Member’s Interest, if such repurchase or distribution would violate the Delaware Act or other applicable law.
Appears in 1 contract
Sources: Limited Liability Company Agreement (JHW Pan Asia Strategies Master Fund, LLC)