FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF GOLUB CAPITAL BDC LLC
FIRST
AMENDED AND RESTATED
OF
▇▇▇▇▇
CAPITAL BDC LLC
This
Limited Liability Company Agreement (this “Agreement”) of ▇▇▇▇▇ CAPITAL BDC LLC
is entered into as of February 5, 2010 by GEMS, L.P., a Delaware limited
partnership, ▇▇▇▇▇ CAPITAL COMPANY IV LLC, a Delaware limited liability company,
▇▇▇▇▇ CAPITAL COMPANY V LLC, a Delaware limited liability company, and ▇▇▇▇▇
CAPITAL COMPANY VI LLC, a Delaware limited liability company, as members
(collectively, the “Members”, each individually a “Member”).
1. Formation and
Name. The Members have formed a Delaware limited liability
company pursuant to and in accordance with the Delaware Limited Liability
Company Act (6 Del.
Code §18-101, et seq.), as amended
from time to time (the “Act”). The name of the limited liability
company is ▇▇▇▇▇ CAPITAL BDC LLC (the “Company”).
2. Certificates. ▇▇▇▇▇▇
▇▇▇▇, as an authorized person, under Section 18-204 of the Act (the
“Organizer”), has executed, delivered and filed the certificate of formation of
the Company. The Members or the Board of Directors, as authorized
persons under Section 18-204 of the Act, shall execute, deliver and file any
amendments and/or restatements to the certificate of formation and any other
certificates (and any amendments and/or restatements thereof) necessary for the
Company to qualify to do business in a jurisdiction in which the Company may
wish to conduct business and any other documentation necessary or convenient for
the formation of the Company or the authorization of the Company’s business
activities. All prior actions of the Organizer and its personnel
undertaken to perform its duties under this paragraph are hereby ratified by the
Members.
3. Term. The
Company shall have perpetual existence unless sooner dissolved and wound up by
the Members pursuant to Section 18, or by the entry of a decree of judicial
dissolution under Section 18-802 of the Act.
4. Purpose and
Powers. The Company is formed for the object and purpose of,
and the nature of the business to be conducted and promoted by the Company is,
engaging in any lawful act or activity for which limited liability companies may
be formed under the Act and exercising any powers permitted to limited liability
companies under the laws of the State of Delaware. The Company, and
the Members or any officer acting on behalf of the Company, shall have and
exercise all powers necessary, convenient or incident to accomplishing the
foregoing purposes.
5. Principal Business
Office. The principal business office of the Company shall be
located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at
such other location as may hereafter be determined by the Members.
6. Registered Office and
Registered Agent. The address of the registered office of the
Company in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, in the City of
Wilmington, County of ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The name of the
registered agent of the Company for service of process in the State of Delaware
is The Corporation Trust Company.
7. Members. The
Members of the Company are GEMS Fund, L.P., ▇▇▇▇▇ Capital Company IV, LLC, ▇▇▇▇▇
Capital Company V LLC and ▇▇▇▇▇ Capital Company VI LLC, each of whom shall hold
limited liability company interests in the Company as set forth on Schedule
A.
8. Officers. The
officers of the Company shall be as set forth on Schedule B, as amended from
time to time. Notwithstanding anything to the contrary contained
herein, the officers of the Company, including any vice president, shall have
the power to do any and all acts necessary, convenient or incidental to or for
the furtherance of the purposes described herein, including all powers,
statutory or otherwise. The officers of the Company are agents of the
Company for the purpose of the Company’s business, and the actions of the
officers taken in accordance with such powers set forth in this Agreement shall
bind the Company. The officers of the Company may be re-designated,
removed or substituted and additional officers may be appointed at any time by
the Board of Directors.
9. Limited
Liability. Except as otherwise provided by the Act, the debts,
obligations and liabilities of the Company, whether arising in contract, tort or
otherwise, shall be solely the debts, obligations and liabilities of the
Company, and neither the Organizer, the Members, nor any other person or entity
shall be obligated personally for any such debt, obligation or liability of the
Company.
10. Capital
Contributions. The Members may make from time to time, but are
not required to make, capital contributions to the Company as shall be
determined by the Members.
11. Allocation of Profits and
Losses. The Company’s profits and losses shall be allocated
pro rata based on each Member’s ownership interest.
12. Distributions. Distributions
shall be made to the Members at the times and in the aggregate amounts
determined by the Members. Such distributions shall be allocated to
each Member pro rata based on each Member’s ownership
interest. Notwithstanding any provision to the contrary contained in
this Agreement, the Company shall not make a distribution to the Members on
account of its interest in the Company if such distribution would violate
Section 18-607 of the Act or other applicable law.
13. Board of
Directors.
(a) Subject
to the delegation of rights and powers as provided for herein, the business and
affairs of the Company shall be vested in and conducted by a Board of Directors,
which shall have the right to manage the business and affairs of the Company and
shall have all powers and rights necessary, appropriate or advisable to
effectuate and carry out the purposes and business of the
Company. The Board shall meet no less than
quarterly. Written notice stating the place, day and hour of any
meeting of the Board and shall be delivered not less than five nor more than 60
days before the date of such meeting by the Chairman of the Board of
Directors. The number of directors constituting the Board of
Directors shall be between two and six, as provided for in the resolutions of
the Board of Directors. The Chairman of the Board of Directors shall
be elected by a majority of directors on the Board of Directors. The
initial members of the Board of Directors shall be ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chairman,
and ▇▇▇▇▇ ▇. ▇▇▇▇▇.
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(b) The
Board of Directors may, by resolution, designate one or more committees, each
committee to consist of one or more of the directors of the
Company. Any such committee, to the extent permitted by law, this
Agreement and a resolution of the Board of Directors, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Company.
(c) Subject
to the provisions of this Agreement, any action which could be taken by the
Board of Directors at a meeting of the Board of Directors may be taken by the
Board of Directors, without a meeting, without prior notice and without a vote,
if a unanimous written consent setting forth the action so taken is signed by
all of the directors of the Board of Directors. Any such written
consent may be executed and ascribed to by facsimile or similar electronic
means.
(d) The
Chairman of the Board of Directors shall have the power to adjourn such meeting
from time to time, without any notice other than announcement at the meeting of
the time and place of the holding of the adjourned meeting. Upon the
resumption of such adjourned meeting, any business may be transacted that might
have been transacted at the meeting as originally called.
(e) Except
as otherwise provided in this Agreement, the Board of Directors shall have the
power and authority to delegate to one or more other persons its rights and
powers to manage and control the business and affairs of the Company, including
delegating such rights and powers to a committee of directors, or
directors of the Company. The Board of Directors may authorize any
person to enter into any document on behalf of the Company and perform the
obligations of the Company thereunder.
14. Other
Business. The Members and any person or entity affiliated with
the Members may engage in or possess an interest in other business ventures
(unconnected with the Company) of every kind and description, independently or
with others. The Company shall not have any rights in or to such
ventures or the income or profits therefrom by virtue of this
Agreement.
15. Exculpation and
Indemnification. None of the Organizer, the Members, directors
or the officers shall be liable to the Company, or any other person or entity
who has an interest in the Company for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Organizer, Members,
directors or officers in good faith in connection with the formation of the
Company or on behalf of the Company and in a manner reasonably believed to be
within the scope of the authority conferred on such Organizer, Members,
directors or officers by this Agreement. To the full extent permitted
by applicable law, the Organizer, the Members, the directors and the officers
shall each be indemnified from and held harmless by the Company for any loss,
damage or claim incurred by such Organizer, Members, directors or officers by
reason of any act or omission performed or omitted by such person on behalf of
the Company; provided, however, that any
indemnity under this Section 15 shall be provided out of and to the extent of
Company assets only, and no Member shall have personal liability on account
thereof.
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16. Assignments. Any
assignment of interests in the Company must be approved in writing by Members
holding at least two-thirds of the ownership interests of the
Company. If any Member transfers all or part of its interest in the
Company, the transferee shall be admitted to the Company as a member upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement. Upon the admission of such transferee,
this Agreement shall be amended to reflect such transferee as a Member of the
Company.
17. Admission of Additional
Members. One (1) or more additional members of the Company may
be admitted to the Company with the written consent of the Members holding at
least two-thirds of the ownership interests of the Company. Upon the admission
of one or more additional members of the Company, this agreement shall be
amended to reflect such new member or members as a Member or Members of the
Company.
18. Dissolution.
(a) The
Company shall dissolve, and its affairs shall be wound up, upon the first to
occur of the following: (i) the unanimous written consent of the Members or (ii)
the entry of a decree of judicial dissolution under Section 18-802 of the
Act.
(b) In
the event of dissolution, the Company shall conduct only such activities as are
necessary to wind up its affairs (including the sale of the assets of the
Company in an orderly manner), and the assets of the Company shall be applied in
the manner, and in the order of priority, set forth in Section 18-804 of the
Act.
19. Separability of
Provisions. Each provision of this Agreement shall be
considered separable, and, if for any reason, any provision or provisions herein
are determined to be invalid, unenforceable or illegal under any existing or
future law, such invalidity, unenforceability or illegality shall not impair the
operation of or affect those portions of this Agreement which are valid,
enforceable and legal.
20. Governing
Law. This Agreement shall be governed by, and construed under,
the laws of the State of Delaware, all rights and remedies being governed by
said laws.
21. Amendments. This
Agreement may not be modified, altered, supplemented or amended except pursuant
to a written agreement executed and delivered by each of the
Members.
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IN WITNESS WHEREOF, the undersigned,
intending to be legally bound hereby, has duly executed this Agreement as of the
date first above written.
MEMBER:
GEMS FUND, L.P.
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By:
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GEMS
Associates, LLC, a Delaware limited liability company, its general
partner
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Managing
Member
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MEMBER:
▇▇▇▇▇ CAPITAL COMPANY IV, LLC
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By:
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▇▇▇▇▇
Capital Partners IV, L.P., a
Delaware
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limited
partnership, its sole member
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By:
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▇▇▇▇▇
▇▇ III, LLC, a Delaware limited liability company, its general
partner
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Manager
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MEMBER:
▇▇▇▇▇ CAPITAL COMPANY V LLC
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By:
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▇▇▇▇▇
Capital Partners V, L.P., a
Delaware
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limited
partnership, its sole member
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By:
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▇▇▇▇▇
▇▇ V, LLC, a Delaware limited liability company, its general
partner
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Manager
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[Signature page to First Amended and Restated LLC
Agreement]
MEMBER:
▇▇▇▇▇ CAPITAL COMPANY VI LLC
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By:
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▇▇▇▇▇
Capital Partners VI, L.P., a
Delaware
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limited
partnership, its sole member
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By:
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▇▇▇▇▇
▇▇ VI, LLC, a Delaware limited liability company, its general
partner
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By:
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/s/ ▇▇▇▇▇ ▇.
▇▇▇▇▇
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Name: ▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: Managing
Member
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[Signature page to First Amended and Restated LLC
Agreement]
SCHEDULE
A
LIMITED
LIABILITY COMPANY INTERESTS
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Limited
Liability Company Interests in ▇▇▇▇▇ Capital BDC LLC
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Name
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Limited
Liability
Company Interests
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GEMS
Fund, L.P.
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195
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▇▇▇▇▇
Capital Company IV, LLC
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221
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▇▇▇▇▇
Capital Company V LLC
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388
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▇▇▇▇▇
Capital Company VI LLC
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196
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[Signature page to First Amended and Restated LLC
Agreement]
SCHEDULE
B
OFFICERS
OF THE COMPANY
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NAME OF OFFICER
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TITLE
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1. ▇▇▇▇▇
▇. ▇▇▇▇▇
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Chief
Executive Officer
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2. ▇▇▇▇
▇▇▇▇▇▇▇
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Vice
President
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