Exhibit b(2)
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
VERSUS CAPITAL REAL ASSETS FUND LLC,
a Delaware limited liability company,
dated as of January 9, 2025
Table
of Contents
| Article
I Definitions |
1 |
| 1.1 |
Certain Definitions |
1 |
| Article
II The Company |
3 |
| 2.1 |
Formation/Continuation |
3 |
| 2.2 |
Company Name |
4 |
| 2.3 |
Purposes |
4 |
| 2.4 |
Powers |
4 |
| 2.5 |
Principal Place of Business |
6 |
| 2.6 |
Registered Office |
6 |
| 2.7 |
Term |
6 |
| 2.8 |
Filings |
6 |
| 2.9 |
Reservation of Other Business Opportunities |
6 |
| 2.10 |
Qualification in Other Jurisdictions |
6 |
| Article
III Management and Membership |
6 |
| 3.1 |
Management of the Company |
6 |
| 3.2 |
Actions by the Board |
8 |
| 3.3 |
Officers |
8 |
| 3.4 |
Admission of Subsequent Members;
Capital Contributions |
9 |
| 3.5 |
Actions by Members |
10 |
| 3.6 |
Books and Records |
11 |
| 3.7 |
Limited Liability |
11 |
| 3.8 |
Indemnification |
11 |
| 3.9 |
Insurance |
12 |
| 3.10 |
Powers of Members |
12 |
| 3.11 |
Partition |
12 |
| 3.12 |
Other Activities |
13 |
| Article
IV Transfers of Shares |
13 |
| 4.1 |
Transferability of Shares |
13 |
| 4.2 |
Indemnification |
14 |
| Article
V Repurchases of Shares |
14 |
| 5.1 |
General |
14 |
| 5.2 |
Quarterly Repurchase Offers |
15 |
| 5.3 |
Mandatory Repurchases |
16 |
| Article
VI Valuation |
16 |
| 6.1 |
Valuation Calculation |
16 |
| 6.2 |
Reserves |
16 |
| Article VII Shares |
17 |
| 7.1 |
General |
17 |
| 7.2 |
Rights
and Liabilities with respect to Shares |
17 |
| Article VIII Distributions,
Withholding and Dividend Reinvestment Plan |
18 |
| 8.1 |
Distributions |
18 |
| 8.2 |
Distribution
Election; Dividend Reinvestment Plan |
19 |
| Article IX Other Fiscal Matters |
19 |
| 9.1 |
Deposits |
19 |
| 9.2 |
Financial
Records |
19 |
| 9.3 |
Fiscal
Year |
19 |
| 9.4 |
Agreements,
Consents, Checks, Etc |
19 |
| 9.5 |
Transactions
with the Members |
20 |
| 9.6 |
Entity
Classification Election |
20 |
| 9.7 |
Corporate
Form |
20 |
| Article X Dissolution |
20 |
| 10.1 |
Dissolution |
20 |
| Article XI SPECIAL POWER OF
ATTORNEY |
21 |
| 11.1 |
Granting
of Power |
21 |
| 11.2 |
Extent
of Power |
22 |
| Article XII Miscellaneous |
22 |
| 12.1 |
Amendments |
22 |
| 12.2 |
Confidentiality |
23 |
| 12.3 |
Applicability
of Investment Company Act |
23 |
| 12.4 |
Binding
Effect |
24 |
| 12.5 |
Construction |
24 |
| 12.6 |
Headings |
24 |
| 12.7 |
Severability |
24 |
| 12.8 |
Variation
of Pronouns |
24 |
| 12.9 |
Governing
Law |
24 |
| 12.10 |
Entire
Agreement |
24 |
| 12.11 |
Counterparts |
24 |
| 12.12 |
Notices |
24 |
| 12.13 |
Waiver
of Terms and Conditions |
25 |
| 12.14 |
Litigation |
25 |
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
AGREEMENT
OF
VERSUS CAPITAL REAL ASSETS FUND LLC
This AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT (as further amended, restated or otherwise modified, this “Agreement”) of VERSUS
CAPITAL REAL ASSETS FUND LLC (the “Company”) is being executed by Versus Capital Advisors LLC (the “Initial
Member”) as of this 9th day of January, 2025.
All other persons or entities
who shall be admitted as members of the Company in accordance with the provisions hereof as a result of such persons’ or entities’
acquisition of shares of beneficial interest of the Company of any class (“Shares”) shall be “Subsequent
Members” and, together with the Initial Member, the “Members.” By virtue of its respective ownership of
Shares, each Member shall be bound by the provisions set forth, and subject to the obligations contained, in this Agreement.
WHEREAS, the Company was
formed by the Initial Member as a limited liability company under the Delaware Limited Liability Company Act (6 Del. C. § 18-101,
et seq.) (as amended from time to time, the “Act”) pursuant to the filing of a certificate of formation in the office
of the Secretary of State of the State of Delaware on September 26, 2016 (the “Certificate”);
WHEREAS, the Initial Member
entered into a limited liability company agreement, dated September 26, 2016 (the “Original Agreement”), to govern
the initial operations of the Company; and
WHEREAS, the Initial Member
amended and restated the Original Agreement on December 5, 2019 (the “December 2019 Agreement”);
WHEREAS, the Initial Member
amended and restated the Original Agreement on November 20, 2020 (the “November 2020 Agreement”); and
WHEREAS, the Initial Member
wishes to amend and restate the November 2020 Agreement pursuant to the terms of this Agreement;
NOW, THEREFORE, for good
and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree that the Agreement governing
the operations of the Company shall hereby be as follows:
Article
I
Definitions
| 1.1 | Certain
Definitions. The following terms used in this Agreement and not otherwise defined shall
have the following meanings: |
| (a) | “Act”
has the meaning assigned to it in the Recitals. |
| (b) | “Adviser”
means a person who at any particular time serves as an investment adviser to the Company
pursuant to an Investment Management Agreement. The current Adviser to the Company is Versus
Capital Advisors LLC. |
| (c) | “Affiliate”
of a person means any person who: (a) directly or indirectly controls, is controlled by,
or is under common control with such person; or (b) owns or controls ten percent or more
of the outstanding voting securities of such person; or (c) is an officer or director of such person;
or (d) is an officer, director, partner, or trustee of any entity for which such person acts in any such capacity. |
| (d) | “Board”
means the Board of Directors of the Company. |
| (e) | “Business
Day” means any day that the NYSE is open for business. |
| (f) | “Capital
Contribution” has the meaning assigned to it in Section 3.4(b). |
| (g) | “Certificate”
has the meaning assigned to it in the Recitals. |
| (h) | “Code”
means the Internal Revenue Code of 1986, as amended. |
| (i) | “Confidential
Information” has the meaning assigned to it in Section 12.2(b). |
| (j) | “Director”
means an individual designated as a Director of the Company pursuant to the provisions of
Section 3.1 of this Agreement and who serves on the Board. |
| (k) | “Distribution”
has the meaning assigned to it in Section 8.1. |
| (l) | “Distribution
Election” means the election a Member makes to receive Distributions in cash. |
| (m) | “Form
N-2” means the Company’s registration statement on Form N-2 filed with the
SEC, as amended from time to time. |
| (n) | “GAAP”
means U.S. generally accepted accounting principles in effect from time to time, applied
on a consistent basis. |
| (o) | “Independent
Director” means a Director who is not an “interested person”
as such term is defined in Section 2(a)(19) of the Investment Company Act (or such successor
provision thereof). |
| (p) | “Initial
Member” has the meaning assigned to it in the preamble hereto. |
| (q) | “Investment
Management Agreement” means a separate written agreement entered into by the Company
pursuant to which the Adviser provides Management Services to the Company. |
| (r) | “Investment
Company Act” means the Investment Company Act of 1940, as amended. |
| (s) | “Management
Services” means such investment advisory and other services as the Adviser is required
to provide to the Company pursuant to an Investment Management Agreement. |
| (t) | “Members”
has the meaning assigned to it in the preamble hereto. |
| (u) | “Net
Asset Value” means the excess of the Company’s assets over its liabilities. |
| (v) | “Net
Asset Value per Share” means the Net Asset Value divided by the number of Shares
of the Company held by Members. |
| (w) | “NYSE”
has the meaning assigned to it in Section 5.2(a). |
| (x) | “Offer
Acceptance” has the meaning assigned to it in Section 5.2(f). |
| (y) | “Officers”
has the meaning assigned to it in Section 3.3. |
| (z) | “Party”
has the meaning assigned to it in Section 3.7. |
| (aa) | “Periodic
Distribution” has the meaning assigned to it in Section 8.1. |
| (bb) | “Quarterly
Distribution” has the meaning assigned to it in Section 8.1. |
| (cc) | “Repurchase
Payment Deadline” has the meaning assigned to it in Section 5.2(g). |
| (dd) | “Repurchase
Pricing Date” has the meaning assigned to it in Section 5.2(b). |
| (ee) | “Repurchase
Request Deadline” has the meaning assigned to it in Section 5.2(a). |
| (ff) | “Repurchase
Notice” has the meaning assigned to it in Section 5.2(a). |
| (gg) | “Repurchase
Offer” has the meaning assigned to it in Section 5.1(b). |
| (hh) | “Repurchase
Offer Amount” has the meaning assigned to it in Section 5.2(c). |
| (ii) | “SEC”
means the Securities and Exchange Commission. |
| (jj) | “Securities
Act” means the Securities Act of 1933, as amended. |
| (kk) | “Selling
Agent” means a broker or dealer contracted to sell Shares. |
| (ll) | “Shares”
has the meaning assigned to it in the preamble hereto. |
| (mm) | “Subsequent
Members” has the meaning assigned to it in the preamble hereto. |
| (nn) | “Underlying
Fund” has the meaning assigned to it in Section 2.4(j). |
Article
II
The Company
| 2.1 | Formation/Continuation.
The Initial Member formed the Company as a limited liability company pursuant to the provisions
of the Act and upon the terms and conditions set forth in this Agreement. The Company has
been governed since the date of the Certificate pursuant to the terms of this Agreement.
The Initial Member hereby agrees to continue the Company as a limited liability company under
and pursuant to the Act and agrees that, except as expressly provided herein to the contrary,
the rights and obligations of the Members and the administration and termination of the Company
shall be governed by the Act. The Initial Member, on behalf of itself and the other Members,
shall execute all documents and perform all acts as may be necessary or appropriate to comply
with the requirements for the formation and operation of the Company under the laws of the
State of Delaware and all other jurisdictions where the Company may conduct business. |
| 2.2 | Company
Name. The name of the limited liability company is “VERSUS CAPITAL REAL ASSETS
FUND LLC.” All business of the Company shall be conducted in such name or such other
name as the Board shall determine. The Company shall hold all of its property in the name
of the Company and not in the name of any Member. |
| 2.3 | Purposes.
The purpose and business of the Company shall be to act as a non-diversified, continuously
offered, closed-end investment company registered under the Investment Company Act and the
Securities Act and to do any and all acts and things which may be necessary, advisable or
incidental to the foregoing, the promotion or conduct of the business of the Company or the
maintenance and improvement of its property and any other lawful act or activity for which
limited liability companies may be formed pursuant to the Act consistent with this Agreement.
The Company intends to operate as an interval fund under Rule 23c-3 of the Investment Company
Act. |
| 2.4 | Powers.
In furtherance of its purposes, but subject to the restrictions and limitations contained
in the Investment Company Act and subject to the provisions of this Agreement, the Company
shall have the power and is hereby authorized to engage in all activities and transactions
as the Board or the Officers may deem necessary, appropriate, proper, advisable, incidental
or convenient in connection therewith, including, without limitation: |
| (a) | Borrow
money and issue evidences of indebtedness in furtherance of any or all of the purposes of
the Company, and secure the same by pledge or other lien on the assets of the Company; |
| (b) | Invest
any funds of the Company pending distribution or payment of the same pursuant to the provisions
of this Agreement; |
| (c) | Prepay,
in whole or in part, refinance, recast, increase, modify or extend any indebtedness of the
Company and, in connection therewith, execute any extensions, renewals or modifications of
any security agreement securing such indebtedness; |
| (d) | Enter
into, perform and carry out contracts of any kind, including, without limitation, contracts
with any person or entity affiliated with the Initial Member, necessary to, in connection
with, convenient to, or incidental to the accomplishment of the purposes of the Company; |
| (e) | File
documents with the SEC, including amendments and supplements thereto, as are required by
the Investment Company Act, the Securities Act or as otherwise may be convenient to, or incidental
to the accomplishment of the purposes of the Company; |
| (f) | Execute,
deliver and file any certificates (or any amendments and/or restatements thereof) necessary
for the Company to qualify to do business in any other jurisdiction in which the Company
may wish to conduct business; |
| (g) | Execute
and file such forms or certificates and may take any and all other actions as may be reasonably
necessary to perfect and maintain the status of the Company under the laws of any other states
or jurisdictions in which the Company engages in business; |
| (h) | Employ
or otherwise engage employees, managers, contractors, advisors, attorneys and consultants
and pay reasonable compensation for such services; |
| (i) | Enter
into partnerships, limited liability companies, trusts, associations, corporations or other
ventures with other persons or entities in furtherance of the purposes of the Company; |
| (j) | Allocate
capital among a number of pooled entities that may be organized in the U.S. and in non-U.S.
jurisdictions and classified as real estate investment trusts, limited partnerships, regulated
investment companies, corporations, limited liability companies or other entities for U.S.
federal income tax purposes (each, an “Underlying Fund” and collectively,
the “Underlying Funds”), each pursuant to relative value investment strategies
or other techniques and subject to various risks; |
| (k) | Engage
attorneys, appraisers, administrators, independent accountants, or such other persons as
the Board or the Officers may deem necessary or advisable; |
| (l) | Enter
into custody agreements with third parties to hold in custody certain of the Company’s
assets or Shares; |
| (m) | Maintain
for the conduct of the Company’s affairs one or more offices and to engage personnel,
whether part time or full time, and do such other acts as the Board or the Officers may deem
necessary or advisable; |
| (n) | Designate
from time to time persons to act as signatories for the Company, including, without limitation,
persons authorized to execute and deliver any filings with the SEC or applicable federal
or state regulatory authorities or self-regulatory organizations; |
| (o) | Acquire
by purchase, lease, contribution of property or otherwise, own, hold, sell, convey, transfer
or dispose of any real or personal property that may be necessary, convenient or incidental
to the accomplishment of the purposes of the Company; |
| (p) | Act
as a trustee, executor, nominee, bailee, director, officer, agent or in some other fiduciary
capacity for any person or entity and exercise all of the powers, duties, rights and responsibilities
associated therewith; |
| (q) | Take
any and all actions necessary, convenient or appropriate as trustee, executor, nominee, bailee,
director, officer, agent or other fiduciary, including the granting or approval of waivers,
consents or amendments of rights or powers relating thereto and the execution of appropriate
documents to evidence such waivers, consents or amendments; |
| (r) | Operate,
purchase, maintain, finance, improve, own, sell, convey, assign, lease or demolish or otherwise
dispose of any real or personal property that may be necessary, convenient or incidental
to the accomplishment of the purposes of the Company; |
| (s) | Acquire
and enter into any contract of insurance necessary or appropriate for the protection of the
Company, its Officers and Directors or for the conservation of the Company’s assets; |
| (t) | Delegate
the power to take any of the foregoing actions on behalf of the Company to the Adviser, a
third party or any of the Officers or Directors; and |
| (u) | Do
such other things and engage in such other activities related to the foregoing as may be
necessary, advisable, convenient or incidental to the conduct of the business of the Company, and have and
exercise all of the powers and rights conferred upon limited liability companies formed pursuant to the Act. |
The foregoing enumeration of the powers shall
be read as broadly and liberally as possible, it being the intent of the foregoing to in no way limit the Company’s powers and
authority.
| 2.5 | Principal
Place of Business. The principal place of business of the Company shall be at ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other location as may be
designated by the Board from time to time. |
| 2.6 | Registered
Office. The address of the registered office of the Company in the State of Delaware
shall be c/o The Corporation Trust Company, The Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and The Corporation Trust Company shall act as the Company’s
registered agent for service of process. At any time, the Board may designate another registered
office and/or registered agent. |
| 2.7 | Term.
The term of the Company shall be perpetual unless and until the Company is dissolved as set
forth herein. The existence of the Company as a separate legal entity shall continue until
the cancellation of the Certificate pursuant to the Act and this Agreement. |
| 2.8 | Filings.
Within a reasonable period of time following the dissolution and completion of winding up
of the Company, the Board shall cause to be executed and filed a certificate of cancellation
of the Certificate in accordance with the Act and such other documents as may be required
by the laws of any other states or jurisdictions in which the Company has registered to transact
business or otherwise filed articles. |
| 2.9 | Reservation
of Other Business Opportunities. No business opportunities other than those actually
exploited by the Company shall be deemed the property of the Company, and the Initial Member
may engage in or possess an interest in any other business venture, independently or with
others, of any nature or description, even if such venture or opportunity is in direct competition
with the business of the Company; and the Company shall have no rights by virtue hereof in
or to such other business ventures, or to the income or profits derived therefrom. |
| 2.10 | Qualification
in Other Jurisdictions. The Board shall cause the Company to be qualified, formed or
registered under assumed or fictitious name, statues or similar laws in any jurisdiction
in which the Company transacts business in which such qualification, formation or registration
is required or desirable. The Officers shall be authorized to execute, deliver and file any
certificates (and any amendments and/or restatements thereof) necessary for the Company to
qualify to do business in the jurisdiction in which the Company may wish to conduct business. |
Article
III
Management and Membership
| 3.1 | Management
of the Company. The business and affairs of the Company shall be managed under the direction
and by the approval of the Board. |
| (a) | The
Directors currently serving on the Board are ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇. The Board
may, subject to the provisions of this Agreement with respect to the number of vacancies
in the position of Director and with respect to the election of Directors to the |
Board by Members, designate
any person who shall agree to be bound by all of the terms of this Agreement. The names and mailing addresses of the Directors shall
be set forth in the books and records of the Company. The number of Directors shall be fixed from time to time by the Board.
| (b) | Subject
to any maximum term of service, required age of retirement or similar limitation that the
Board may establish from time to time, each Director shall serve on the Board for the duration
of the term of the Company, unless his or her status shall be sooner terminated pursuant
to Section 3.1(h) hereof. In the event of any vacancy in the position of Director,
the remaining Directors may appoint an individual to serve in such capacity, so long as immediately
after such appointment at least two-thirds (2/3) of the Directors then serving would have
been elected by the Members. The Board may call a meeting of Members to fill any vacancy
in the position of Director, and shall do so within sixty (60) days after any date on which
Directors who were elected by the Members ceases to constitute a majority of the Directors
then serving on the Board. |
| (c) | In
the event that no Director remains to continue the business of the Company, the Adviser shall
promptly call a meeting of the Members, to be held within sixty (60) days after the date
on which the last Director ceased to act in that capacity, for the purpose of determining
whether to continue the business of the Company and, if the business shall be continued,
of electing the required number of Directors to the Board. If the Members shall determine
at such meeting not to continue the business of the Company or if the required number of
Directors is not elected within sixty (60) days after the date on which the last Director
ceased to act in that capacity, then the Company shall be dissolved pursuant to Section
10.1(a) hereof and the assets of the Company shall be liquidated and distributed pursuant
to Section 10.1(c) hereof. |
| (d) | Independent
Directors will at all times constitute at least a majority (or more if required by the Investment
Company Act) of the Directors then serving on the Board. |
| (e) | An
Independent Director will be replaced by another Independent Director selected and nominated
by the remaining Independent Directors, or in a manner otherwise permissible under the Investment
Company Act. |
| (f) | Each
Director shall be a “Manager” of the Company as such term is defined in
the Act. |
| (g) | The
Independent Directors will receive compensation for their services as Independent Directors,
as determined by the Board. |
| (h) | The
status of a Director shall terminate if the Director (i) shall die; (ii) shall be adjudicated
incompetent; (iii) shall voluntarily withdraw as a Director (upon not less than ninety (90)
days’ prior written notice to the other Directors, or such lesser notice period agreeable
to the other Directors); (iv) shall be removed pursuant to Section 3.1(i); (v) shall be certified
by a physician to be mentally or physically unable to perform his duties hereunder; (vi)
shall be declared bankrupt by a court with appropriate jurisdiction, file a petition commencing
a voluntary case under any bankruptcy law or make an assignment for the benefit of creditors;
(vii) shall have a receiver appointed to administer the property or affairs of such Director;
or (viii) shall otherwise cease to be a Director of the Company under the Act. |
| (i) | Any
Director may be removed either by (a) the vote or written consent of at least two-thirds
(2/3) of the Directors not subject to the removal vote or (b)(i) the vote, if at a meeting,
of Members holding a majority of the outstanding voting securities or (ii) written consent
of Members holding not less than two-thirds (2/3) of the total number of votes eligible to
be cast by all Members for the election of Directors. For this purpose, the vote of a majority
of the outstanding voting securities means, unless otherwise defined by the Investment Company
Act, the vote, at an annual or a special meeting of Members, of 67% or more of the total
number of votes eligible to be cast by all Members present at the meeting, if the holders
of more than 50% of the total number of votes eligible to be cast by all Members are present
or represented by proxy, or of more than 50% of the total number of votes eligible to be
cast by all Members, whichever is less. |
| (a) | The
Board shall have the full power and authority 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, possessed by a board of directors of a limited liability company
or corporation under the laws of the State of Delaware, including the power to delegate its
powers to the Adviser, a third party or any of the Officers. The Board has the authority
to bind the Company. Unless provided otherwise in this Agreement, the Board will act only: |
| (i) | by
the affirmative vote of a majority of the Directors (which majority will include any requisite
number of Independent Directors required by the Investment Company Act) present at a meeting
duly called at which a quorum of the Directors is present either in person or, to the extent
consistent with the provisions of the Investment Company Act, by conference telephone or
other communications equipment by means of which all persons participating in the meeting
can hear each other; or (ii) by unanimous written consent of all of the Directors without
a meeting, if permissible under the Investment Company Act. A majority of the Directors then
in office will constitute a quorum at any meeting of Directors. In any circumstances for
which the vote or consent of the Members is required by the terms of this Agreement, the
decisions and actions of the Board shall be consistent with such vote or action. |
| (b) | Specifically,
the Board shall have the full power and authority, without Member approval, to apply for
exemptive orders from the SEC that, if granted, would allow the Board to directly or by delegation
to the Adviser, among other things, authorize one or more additional classes of Shares. |
| (c) | The
expression of any power or authority of the Board shall not in any way limit or exclude any
other power or authority which is not specifically or expressly set forth in this Agreement. |
| 3.3 | Officers.
The Board may, from time to time as it deems advisable, select natural persons who are employees
or agents of the Company and designate them as officers of the Company (the “Officers”)
and assign titles (including without limitation.,
President, Chief Operating Officer, Chief Executive Officer, Chief Compliance
Officer, Chief Investment Officer) to any such person. Unless the Board decides otherwise,
if the title is one commonly used for officers of a business corporation formed under the
Delaware General Corporation Law, the assignment of such title shall |
constitute the delegation
to such person of the authorities and duties that are normally associated with that office. The Board, in its sole and absolute discretion,
may delegate any of its powers to any Officer. Any delegation pursuant to this Section 3.3 may be revoked at any time by the Board.
Each of the Officers shall serve until the earlier of their death, resignation or removal, in accordance with this Agreement. An Officer
position may be revoked with or without cause by the Board. The officers set forth on Exhibit A were appointed by the Board to
administer the day to day affairs of the Company as of the date of this Agreement and the Board may from time to time remove or appoint
additional officers without amending Exhibit A hereto; provided, that, notwithstanding the foregoing, the business and affairs
of the Company shall be managed under the direction and by the approval of the Board.
| 3.4 | Admission
of Subsequent Members; Capital Contributions. |
| (a) | A
Person shall be admitted as a Member and shall become bound by the terms of and subject to
the obligations contained in this Agreement if such Person purchases or otherwise lawfully
acquires any Share and becomes the record holder of such Share in accordance with the provisions
of this Agreement. A Person may become a record holder of Shares without the consent or approval
of any of the Members. |
| (b) | The
name of each Member, the amount of the capital contribution(s) made by such Member upon admission
to the Company and thereafter (each, a “Capital Contribution”) and each
Member’s corresponding Share ownership, shall be set forth in the books and records
of the Company. |
| (c) | The
Board may establish minimum initial Capital Contributions for each Member and, in the case
of the Initial Member only, the minimum initial Capital Contribution will be $100,000. The
amount of the Capital Contribution of each member shall be recorded by the Company upon acceptance
as a contribution to the capital of the Company. Each Member’s entire initial Capital
Contribution will be paid to the Company immediately prior to the Company’s acceptance
of the Member’s purchase of Shares. |
| (d) | Subject
to the provisions of the Investment Company Act, and except as otherwise permitted by the
Board, initial Capital Contributions and any additional Capital Contributions by any Member
will be payable in cash in readily available funds at the date of the proposed acceptance
of the contributions. |
| (e) | The
minimum initial contribution amounts set out in this Section 3.4 may be increased
or reduced by the Board from time to time. Reductions may be applied to all Members, individual
Members or to classes of Members, in each case in the sole discretion of the Board. |
| (f) | The
Shares shall be personal property for all purposes. |
| (g) | No
interest shall be paid on any Capital Contributions and, except as expressly provided herein,
no Member may withdraw his Capital Contributions and the Company shall not be obligated to
repurchase a Member’s Shares, other than as required by this Agreement and the Investment
Company Act. The Company shall not have any obligation to repay any Capital Contributions
and such repayments, if any, shall be made only by the Company upon dissolution and termination
or as otherwise specifically set forth herein. No Member may demand property other than cash
in return for its Capital Contribution. |
| (a) | Members
shall have the right to vote on any matters only as provided in this Agreement or on any
matters that require the approval of the holders of voting securities under the Investment
Company Act or as otherwise required in the Act. |
| (b) | Actions
requiring the vote of the Members may be taken at any duly constituted meeting of the Members
at which a quorum is present or by means of a written consent. Meetings of the Members may
be called by the affirmative vote of a majority of Directors then in office, or by Members
holding at least a majority of the total number of Shares held by all Members, and may be
held at any time, date and place determined by the Board. In each case, the Board will provide
notice of the meeting, stating the date, time and place of the meeting and the record date
for the meeting, to each Member entitled to vote at the meeting within a reasonable time
prior to the meeting. |
| (c) | Failure
to receive notice of a meeting on the part of any Member will not affect the validity of
any act or proceeding of the meeting, so long as a quorum is present at the meeting. |
| (d) | Except
as otherwise required by applicable law, only matters set out in the notice of a meeting
may be voted on by the Members at the meeting. |
| (e) | The
presence in person or by proxy of Members holding a majority of the total number of Shares
held by all Members as of the record date will constitute a quorum at any meeting of Members.
In the absence of a quorum, a meeting may be adjourned to the time or times as determined
by the Board and communicated to the Members in the manner described above in this Section
3.5. |
| (f) | Except
as otherwise required by any provision of this Agreement or of the Investment Company Act,
(i) those candidates receiving a plurality of the votes cast at any meeting of Members called
pursuant to Section 3.1(c) of this Agreement or elected pursuant to the requirement
of Section 3.1(b) will be elected as Directors and (ii) all other actions of the Members
taken at a meeting will require the affirmative vote of Members holding a majority of the
total number of Shares held by those Members who are present in person or by proxy at the
meeting. |
| (g) | Each
Member will be entitled to cast at any meeting of Members or pursuant to written consent
a number of votes equivalent to the number of Shares held by such Member as of the record
date for the meeting or the date of the written consent. The Board will establish a record
date not less than ten (10) nor more than sixty (60) days prior to the date of any meeting
of Members or mailing (including by electronic transmission) to the Members of any written
consent, to determine eligibility to vote at the meeting and the number of votes that each
Member will be entitled to cast at the meeting, and will maintain for each record date a
list setting out the name of each Member and the number of votes that each Member will be
entitled to cast at the meeting. |
| (h) | A
Member may vote at any meeting of Members by a properly executed proxy transmitted to the
Company at any time at or before the time of the meeting by telegram, telecopier or other
means of electronic communication or other readable reproduction as contemplated by the provisions
relating to proxies applicable to corporations incorporated under the laws of Delaware now
or in the future in effect. A proxy may be suspended or revoked, as the |
case may be, by the
Member executing the proxy by a later writing delivered to the Company at any time prior to exercise of the proxy or if the Member executing
the proxy is present at the meeting and votes at the meeting. Any action of the Members that is permitted to be taken at a meeting of
the Members may be taken without a meeting if consents in writing, setting out the action to be taken, are signed by Members holding
a majority of the total number of votes eligible to be cast or any greater percentage as may be required under this Agreement to approve
the action.
| 3.6 | Books
and Records. The Company shall keep, or shall designate an individual to keep, proper
and usual books and records pertaining to the business of the Company. The books and records
of the Company shall be kept at the principal office of the Company or at such other places,
within or without the State of Delaware, as the Board shall from time to time determine. |
| (a) | 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 no Director, Officer or Member or any Affiliate thereof shall
be obligated personally for any such debt, obligation or liability of the Company solely
by reason of being a director, officer or member of the Company. |
| (b) | To
the extent that at law or in equity, a Member or any other party shall have duties (including
fiduciary duties) and liabilities to the Company, such duties and liabilities may be restricted
by provisions of this Agreement. No Member shall be liable to the Company or any Member for
any loss, damage or claim incurred by reason of any act or omission performed or omitted
by any such Member in good faith on behalf of the Company and in a manner reasonably believed
to be within the scope of authority conferred on any such Member by this Agreement. |
| (c) | Each
Member shall be fully protected in relying in good faith upon the records of the Company
and upon such information, opinions, reports or statements presented to the Company by any
person as to the matters each Member reasonably believes are within such other person’s
professional or expert competence and who has been selected with reasonable care by or on
behalf of the Company, including information, opinions, reports or statements as to the value
and amount of the assets, liabilities, profits, losses or net cash flow or any other facts
pertinent to the existence and amount of assets from which distributions to each Member might
properly be paid. |
| (d) | Any
repeal or modification of this Section 3.7 shall not adversely affect any right or
protection of any Member existing prior to such repeal or modification. |
| (a) | The
Company shall indemnify and hold harmless each Member and each of the Company’s affiliates,
including the Adviser, Officers, Directors, managers, members, agents or employees (the “Parties”)
from and against any loss, expense, damage or injury suffered or sustained by the Parties
(or any of them) by reason of any acts, omissions or alleged acts or omissions arising out
of its or their activities on behalf of the Company or in furtherance of the interests of
the Company, including, but not limited to, any judgment, award, settlement, reasonable attorney’s
fees and other costs or expenses incurred in connection |
with the defense of
any actual or threatened action, proceeding or claim; provided that the acts, omissions or alleged acts or omissions upon which
such actual or threatened action, proceeding or claim is based were not performed or omitted fraudulently or as a result of gross negligence
or willful misconduct by any such Party; and provided that such Party reasonably believed that the acts, omissions, or alleged
acts or omissions upon which such actual or threatened action, proceeding or claim is based were in the best interests of the Company.
Such indemnification shall be made only to the extent of the assets of the Company.
| (b) | To
the fullest extent permitted by applicable law, expenses (including legal fees) incurred
by a Party (or any of them) in defending any claim, demand, action, suit or proceeding shall,
from time to time, be advanced by the Company prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on
behalf of the Party (or any of them) to repay such amount if it shall be determined that
the Party is not entitled to be indemnified as authorized in this Section 3.8. |
| (c) | Notwithstanding
any provisions of Section 3.8(a) or (b) to the contrary, no indemnity shall
be paid by the Company if indemnification is not lawful (and, in this respect, the Company
has been advised that (1) Section 17(h) of the Investment Company Act and amendments thereto
provides in essence that investment companies registered under said act may not indemnify
their directors for their willful misfeasance, bad faith, gross negligence or reckless disregard
of their duties as directors, and (2) the SEC believes that indemnification for liabilities
arising under the federal securities laws for certain “disabling conduct” is
against public policy and is, therefore, unenforceable and that “reasonable and fair”
means should be used for determining whether liability has arisen from disabling conduct,
including (i) a final decision on the merits by a court that the liability did not arise
from his disabling conduct, (ii) a reasonable determination to this effect by a majority
of a quorum of independent directors who are not parties to the relevant proceeding, or (iii)
a written opinion to this effect from independent legal counsel). |
| 3.9 | Insurance.
The Board shall have the power on behalf of the Company to purchase and maintain insurance
on behalf of the Officers and Directors and against any liability incurred by them in their
capacities as such, whether or not the Company has the power to indemnify them against such
liability. |
| 3.10 | Powers
of Members. The Members shall have the power to exercise any and all rights or powers
granted to the Members pursuant to the express terms of this Agreement, unless prior to the
exercise by the Members of any such rights, the Board shall have notified the Members that
the exercise of such rights will adversely affect (i) the limited liability of the Members
or (ii) the classification of the Company as a corporation and as a regulated investment
company for federal income tax purposes. Except as otherwise specifically provided by this
Agreement, no Member shall have the power to act for or on behalf of, or to bind, the Company.
Notwithstanding the foregoing sentence, all Members shall constitute one class or group of
members of the Company for all purposes of the Act. |
| 3.11 | Partition.
Each member waives any and all rights that it may have to maintain an action for partition
of the Company’s property. |
| (a) | Neither
the Initial Member nor any of its principals, members, directors, officers, partners, employees
or beneficial owners nor any Director nor any Officer will be required to devote full time
to the affairs of the Company. |
| (b) | Each
Director, each Member, and each Affiliate of the foregoing may engage in or possess an interest
in other business ventures or commercial dealings of every kind and description, independently
or with others, including, but not limited to, acquisition and disposition of securities,
provision of investment advisory or brokerage services, serving as directors, officers, employees,
advisors or agents of other companies, partners of any partnership, members of any limited
liability company, or trustees of any trust, or entering into any other commercial arrangements.
No Member will have any rights in or to such activities of any other Member, Directors or
any Affiliate of any Member or any profits derived from these activities. |
Article
IV
Transfers of Shares
| 4.1 | Transferability
of Shares. |
| (a) | Except
pursuant to Section 4.1(b) below, no person shall become a substituted Member without
the consent of the Board, which consent may be granted or withheld in its sole and absolute
discretion. Any purported transfer in violation of this Section 4.1 shall be void. |
| (b) | Shares
held by Members shall only be transferred: |
| (i) | by
operation of law pursuant to the death, disability, divorce, bankruptcy, insolvency, incompetence
or dissolution of a Member; or |
| (ii) | under
limited circumstances, with the written consent of the Board or any officer of the Company
to which the Board delegates its authority hereunder (such consent to be granted or withheld
in the sole and absolute discretion of the Board or the officer, as applicable). |
| (c) | The
Board generally will not consider consenting to a transfer unless: |
| (i) | the
transfer is one in which the tax basis of the Shares in the hands of the transferee is determined,
in whole or in part, by reference to its tax basis in the hands of the transferring Member
(e.g., certain gifts and contributions to family entities); or |
| (ii) | the
transfer is to members of the transferring Member’s immediate family (siblings, spouse,
parents and children). |
| (d) | The
Board, in its sole and absolute discretion, may consent to a transfer of Shares by a Member
if the transfer is to a single transferee or after the transfer of the Shares, the aggregate
Net Asset Value of Shares of each of the transferee and transferor is not less than $2,000. |
| (e) | Notice
to the Company of any proposed transfer must include evidence satisfactory to the Board that
the proposed transferee, at the time of transfer, meets any requirements imposed by the Company
with respect to investor eligibility and suitability and complies with the Investment Company Act,
the Securities Act, and all other applicable laws and rules of any applicable governmental authority. |
| (f) | Each
transferring Member and transferee must agree to pay all expenses, including, but not limited
to, attorneys’ and accountants’ fees, incurred by the Company in connection with
the transfer. |
| (g) | If
a Member transfers Shares with the approval of the Board, the Company will promptly take
all necessary actions so that each transferee or successor to whom the Shares is transferred
is admitted to the Company as a Member. |
| 4.2 | Indemnification.
Each Member shall indemnify and hold harmless the Company, each member of the Board, the
Adviser, each other Member and any Affiliate of the foregoing against all losses, claims,
damages, liabilities, costs and expenses (including legal or other expenses incurred in investigating
or defending against any such losses, claims, damages, liabilities, costs and expenses or
any judgments, fines and amounts paid in settlement), joint or several, to which such persons
may become subject by reason of or arising from (i) any transfer of Shares made by such Member
in violation of Section 4.1 and (ii) any misrepresentation by such Member (or such
Member’s transferee) in connection with any such transfer of Shares . |
Article
V
Repurchases of Shares
| (a) | Shares
are not redeemable upon demand. From time to time, the Company may repurchase or redeem its
Shares, all upon such terms and conditions as may be determined by the Directors and subject
to any applicable provisions of the Investment Company Act or any exemption therefrom. Except
as otherwise specifically provided in this Agreement, no Member shall have the right to require
the Company to repurchase its Shares. |
| (b) | The
Board shall adopt a repurchase policy in accordance with Rule 23c-3 of the Investment Company
Act whereby the Company shall offer, on a quarterly basis (each, a “Repurchase Offer”),
to repurchase no less than five percent (5%) or more than twenty-five percent (25%) of Shares
outstanding at Net Asset Value, unless suspended or postponed in accordance with Section
5.1(c) below. |
| (c) | In
accordance with the terms and conditions as are set forth in this Agreement, the Board may
suspend or postpone a Repurchase Offer only: (a) if making or effecting the Repurchase Offer
would cause the Company to lose its status as a regulated investment company under the Code;
(b) for any period during which the NYSE or any market on which the securities owned by the
Company are principally traded is closed, other than customary weekend and holiday closings,
or during which trading in such market is restricted; (c) for any period during which an
emergency exists as a result of which disposal by the Company of securities owned by it is
not reasonably practicable, or during which it is not reasonably practicable for the Company
fairly to determine the value of its net assets; or (d) for such other periods as the SEC
may by order permit for the protection of Members of the Company. |
| 5.2 | Quarterly
Repurchase Offers. In connection with a Repurchase Offer, the Board shall cause the Company
to repurchase Shares on terms fair to the Company and to all Members in the following manner: |
| (a) | Members
will be notified in writing (each such writing, a “Repurchase Notice”)
about each quarterly Repurchase Offer, how they may request that the Company repurchase
their Shares, the number of Shares that are the subject of such Repurchase Offer, the percentage
that such Shares represent of all Shares held by Members and the “Repurchase Request
Deadline,” which is the date the Repurchase Offer ends. The Repurchase Request
Deadline will be determined by the Board and will be based on factors such as market conditions,
liquidity of the Company’s assets and Member servicing conditions. The time between
the notification to Members and the Repurchase Request Deadline may vary from no more than
42 days to no less than 21 days. The repurchase price of the Shares will be the Net Asset
Value as of the close of regular trading on the New York Stock Exchange (“NYSE”)
on the Repurchase Pricing Date. |
| (b) | Each
quarterly repurchase pricing will typically occur on the Repurchase Request Deadline, but
no later than the 14th day after the Repurchase Request Deadline, or the next
Business Day if the 14th is not a Business Day (each, a “Repurchase Pricing Date”). |
| (c) | The
Board, or a committee thereof, in its sole discretion, will determine the number of shares
that the Company will offer to repurchase (the “Repurchase Offer Amount”)
for a given Repurchase Request Deadline. The Repurchase Offer Amount, however, will be not
less than 5% nor more than 25% of the total number of Shares outstanding on the Repurchase
Request Deadline. |
| (d) | If
Share repurchase requests exceed the number of Shares in the Repurchase Offer, the Company
may, in its sole discretion (i) repurchase the tendered Shares on a pro rata basis or (ii)
increase the number of Shares to be repurchased by up to 2.0% of the Company’s outstanding
Shares. The Company may accept all Shares tendered for repurchase by Members who own less
than one hundred shares and who tender all of their Shares, before prorating other amounts
tendered. Because of the potential for proration, tendering Members may not have all of their
tendered Shares repurchased by the Company. |
| (e) | Members
must submit, in a manner described in the Repurchase Notice, responses to a Repurchase Notice
(each, an “Offer Acceptance”) to the Company or its designated agent named
in the Repurchase Notice by the applicable Repurchase Request Deadline. Offer Acceptances
received by the Company or its designated agent after the Repurchase Request Deadline will
be void and of no force and effect. |
| (f) | The
amount due to any Member tendering all of or a portion of its Shares shall be equal to the
product of the total number of Shares accepted for repurchase by the Company multiplied by
the Net Asset Value per Share determined as of the close of regular trading on the NYSE on
the Repurchase Pricing Date, which will be based on the estimated unaudited Net Asset Value
of the Company’s assets as of such date, after giving effect to all allocations to
be made to the Members as of such date. |
| (g) | Payment
pursuant to the repurchase will be made in cash within seven days of the Repurchase Pricing
Date (the “Repurchase Payment Deadline”). The Board may establish other
policies for repurchases of Shares that are consistent with the Investment Company |
Act and other pertinent
laws. Shares tendered for repurchase by a Member prior to any Repurchase Request Deadline will be repurchased subject to the aggregate
repurchase amounts established for that Repurchase Request Deadline. Repurchase proceeds, net of any repurchase fee, will be paid to
Members prior to the Repurchase Payment Deadline.
| (h) | The
Company may maintain cash or borrow money to satisfy its repurchase obligations. |
| 5.3 | Mandatory
Repurchases. The Board, in its sole discretion, may cause the Company to repurchase the
Shares of a Member or of any person acquiring such Shares from or through a Member in the
event that the Board determines or has reason to believe that, among other things: |
| (a) | all
or part of such Shares have been transferred in violation of this Agreement or such Shares
have vested in any person by operation of law as a result of the death, dissolution, bankruptcy
or incompetency of a Member; |
| (b) | ownership
of such Shares by such Member or other person will cause the Company to be in violation of,
or subject the Company or any Member to additional registration or regulation under the securities,
commodities, or other laws of the U.S. or any other relevant jurisdiction; |
| (c) | continued
ownership of such Shares may be harmful or injurious to the business or reputation of the
Company, or may subject the Company or any Members to an undue risk of adverse tax or other
fiscal consequences; or |
| (d) | any
representation or warranty made by a Member in connection with the acquisition of its Shares
was not true when made or has ceased to be true. |
Article
VI
Valuation
| 6.1 | Valuation
Calculation. Valuation of the Company’s assets and Share price will be determined
in the following manner: |
| (a) | the
value of the Company’s assets shall be calculated once each Business Day as of the
regularly scheduled close of normal trading on the NYSE (normally, 4:00 p.m.,
Eastern Time). If the NYSE closes early, such as on days in advance of holidays
generally observed by the NYSE, the Company will calculate Net Asset Value as of such earlier
closing time. The Net Asset Value of the Company will be equivalent to its assets less its
liabilities. Investments are valued on the basis of market quotations where available and
otherwise in accordance with the policies and procedures as defined specifically in the Company’s
“Valuation Policy” adopted by the Board. All values assigned to the assets
of the Company pursuant to this Section 6.1 shall be binding and conclusive as to
all parties. |
| 6.2 | Reserves.
Liabilities of the Company shall be determined in accordance with GAAP. The Board, in its
sole discretion, may from time to time provide reserves for liabilities and expenses where
the amounts of such items are estimated. |
Article
VII
Shares
| (a) | The
number of the Company’s authorized Shares and the number of Shares that may be issued
is unlimited, and, subject to Section 3.4 hereof and Section 7.2(c) hereof,
the Board may issue Shares for such consideration and on such terms as they may determine
(or for no consideration if pursuant to a Share dividend or split-up), or may reduce the
number of issued Shares in proportion to the relative net asset value of the Shares then
outstanding, all without action or approval of the Members. All such Shares shall have $1.00
par value per Share. All Shares when so issued on the terms determined by the Directors shall
be fully paid and non-assessable. The Board may hold on behalf of the Company any Shares
reacquired by the Company, reissue such Shares for such consideration and on such terms as
they may determine, or cancel such Shares, at their discretion from time to time. |
| (b) | Any
Adviser or Director, Officer or other agent of the Company, and any organization in which
any such person is interested may acquire, own, hold and dispose of Shares to the same extent
as if such person were not a Director, Officer or other agent of the Company; and the Company
may issue and sell or cause to be issued and sold and may purchase Shares from any such person
or any such organization subject only to the limitations, restrictions or other provisions
applicable to the sale or purchase of Shares generally. |
| (c) | Shares
shall not be represented by certificates, but only by notation on the Share records of the
Company, as kept by the Company or by any transfer or similar agent, as the case may be.
The Share records, whether maintained by the Company or any transfer or similar agent, as
the case may be, shall be conclusive as to who are the holders of Shares and as to the number
of Shares held from time to time by each such person. |
| 7.2 | Rights
and Liabilities with respect to Shares. |
| (a) | All
consideration received by the Company for the issue or sale of Shares, together with all
assets in which such consideration is invested or reinvested, all income, earnings, profits,
and proceeds thereof, including any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment of such proceeds
in whatever form the same may be, shall irrevocably belong to all Members generally and not
to the account of any particular Member, subject only to the rights of creditors, and shall
be so recorded upon the books and records of the Company. |
| (b) | The
liabilities, expenses, costs and charges (including any reserves as may be established from
time to time) attributable to the Shares shall be charged and allocated to such Shares generally
and not to the account of any particular Member and shall be so recorded upon the books and
records of the Company. |
| (c) | Dividends
and distributions on Shares may be paid to the Members, pursuant to Section 8.1 herein. |
| (d) | In
the event of the liquidation or dissolution of the Company, the Members shall be entitled
to receive assets of the Company as set out in this Section 7.2. Upon the liquidation
or dissolution of the Company, the Board shall make provisions for the satisfaction (whether |
by payment or the making
of reasonable provision for payment thereof) of all of the Company’s outstanding obligations, taxes and other liabilities, accrued
or contingent in accordance with the Act. Any remaining assets (which may, in the discretion of the Board, include assets distributed
in-kind valued at their date of distribution in accordance with Section 6.l(a) hereof) shall be distributed among the Members in proportion
to the relative number of Shares held by such persons.
| (e) | Shares
shall be transferable only in accordance with Article IV hereof. |
| (f) | Except as provided herein, each Share shall represent an
equal proportionate interest in the Company, and each Share shall be equal with respect to Net Asset Value per Share as against each
other Share of the Company. The rights attaching to all Shares shall be identical as to right of redemption or repurchase, dividends
and other distributions (whether or not on liquidation), and voting rights (the vote attaching to each Share or fraction thereof
being equal to the dollar value of the same as of the record date for any such vote). The Board may from time to time divide or
combine the Shares into a greater or lesser number of Shares provided that such division or combination does not change the
proportionate interest in the Company of any Member or in any way affect the rights of Shares. |
| (g) | The
Board may accept investments in the Company by way of Share purchase, from such persons,
on such terms (including minimum purchase amounts) and for such consideration, not inconsistent
with the provisions of the Investment Company Act, as they from time to time authorize or
determine. The Board may authorize any distributor, principal underwriter, custodian, transfer
agent or other person to accept orders for the purchase or sale of Shares that conform to
such authorized terms and to reject any purchase or sale orders for Shares whether or not
conforming to such authorized terms. |
| (h) | Any
fractional Share, if outstanding, shall carry proportionately all the rights and obligations
of a whole Share, including those rights and obligations with respect to voting, receipt
of dividends and distributions, redemption of Shares, and liquidation of the Company. Fractions
of Shares shall be calculated to three decimal points. |
Article
VIII
Distributions, Withholding and Dividend Reinvestment Plan
| 8.1 | Distributions.
The Company shall generally distribute all or a portion of any dividends or investment income
it earns on investments to Members on a quarterly basis (each, a “Quarterly Distribution”).
In addition to Quarterly Distributions, the Company will make regular distributions to the
Members of all or a portion of capital gains distributed to the Company by the Underlying
Funds and capital gains earned by the Company from the disposition of an Underlying Fund
or other investments, together with any dividends or interest income earned from such investments
(each, a “Periodic Distribution” and, together with Quarterly Distributions,
the “Distributions”). All Distributions shall be made to each Member pro rata
based on the number of Shares held by such Member and will be net of Company expenses. The
Company may make distributions as determined by the Board from time to time in accordance
with this Agreement; provided, however, that no distribution shall be declared and
paid unless, after the distribution is made, the assets of the Company are in excess of the
liabilities of the Company and such distribution does not violate the Act or other applicable
law. Notwithstanding any provision to the contrary contained in this Agreement, the Board
shall not be permitted to make a distribution to the Members on account of their interest
in the Company if such distribution would violate the Act or any other applicable law. |
| 8.2 | Distribution
Election; Dividend Reinvestment Plan. |
| (a) | Unless
a Member makes a Distribution Election in accordance with the Company’s Dividend Reinvestment
Policy, all Distributions shall be reinvested in full and fractional Shares at the Net Asset
Value per Share next determined on the payable date of such Distributions. Any such Shares
shall be registered in the name of such Member. |
| (b) | If
a Member has made a Distribution Election, the Company may make Distributions in a combination
of cash and Shares. Any such Shares shall be registered in the name of such Member and any
such cash payment shall be mailed as soon as practicable after Distributions are declared.
The Company may distribute Shares to a Member that has made a Distribution Election only
to the extent that the Board has determined that such distribution of Shares will be treated
as a distribution of property for purposes of section 301 of the Code. No interest shall
accrue on amounts represented by uncashed Distributions checks. |
| (c) | A
Member may make a Distribution Election on a quarterly basis by written request to the Company
or such Member’s broker/dealer, who will inform the Company of such Member’s
Distribution Election. |
| (d) | The
Company shall be entitled to withhold or cause to be withheld from each Member’s distribution
from the Company such amounts on account of taxes or similar charges, if any, as are required
by applicable law. Each Member shall furnish to the Company from time to time all such information
as is required by applicable law or otherwise reasonably requested by the Company (including
certificates in the form prescribed by the Code or Treasury Regulations thereunder or applicable
state, local or foreign law) to permit the Company to ascertain whether and in what amount
withholding is required in respect of such Member. |
| (e) | The
Company may make additional distributions to Members at such times and in such amounts as
the Board determines are necessary or appropriate in connection with the Company’s
qualification as a regulated investment company for federal income tax purposes, to reduce
or eliminate the Company’s investment company taxable income for federal income tax
purposes, or to reduce or avoid the imposition of any excise tax on the Company. |
Article
IX
Other Fiscal Matters
| 9.1 | Deposits.
All funds of the Company shall be deposited in an account or accounts in such banks, trust
companies or other depositories as the Board may select. |
| 9.2 | Financial
Records. All financial records shall be maintained and reported using GAAP. |
| 9.3 | Fiscal
Year. The fiscal year of the Company shall end on the last day of March each year, unless
otherwise determined by the Board. |
| 9.4 | Agreements,
Consents, Checks, Etc. All agreements, consents, checks, drafts or other orders for the
payment of money, and all notes or other evidences of indebtedness issued in the name of
the Company shall be signed by those persons authorized from time to time by the Board. |
| 9.5 | Transactions
with the Members. Except as prohibited in the Act, the Members may lend money to, borrow
money from, act as surety, guarantor or endorser for, guarantee or assume one or more obligations
of, provide collateral for, and transact other business with the Company and have the same
rights and obligations with respect to any such matter as a person who is not a Member. |
| 9.6 | Entity
Classification Election. The Company shall execute and file a U.S. Internal Revenue Service
Form 8832 electing to classify the Company as a corporation for U.S. federal income tax purposes
pursuant to Treasury Regulation Section 301.7701-3 as of a date no later than the date hereof,
and each Officer of the Company and each Director is hereby authorized to execute and file
such Form 8832 for all of the Members. The Company is hereby authorized to execute and file
for all of the Members any comparable form or document required by any applicable United
States state or local income or similar tax law for the Company to be classified as a corporation
under such tax law. |
| 9.7 | Corporate
Form. The Company may convert to another Delaware business entity in accordance with
the Act upon the approval of the Members representing a majority of the outstanding voting
securities of the Company. |
Article
X
Dissolution
| (a) | The
Company shall be dissolved and its affairs wound-up upon the occurrence of any of the following
events: |
| (i) | any
event which would make it unlawful to continue the existence of the Company; or |
| (ii) | the
Board determines to dissolve the Company upon at least thirty (30) calendar days’ prior
written notice to the Members. |
| (b) | Upon
the dissolution of the Company, the Board shall promptly notify the Members of such dissolution. |
| (c) | Upon
dissolution of the Company, the Board shall, at any time during the ninety (90) calendar
day period following completion of a final audit of the Company’s books and records,
make distributions out of Company assets in the following manner and order: |
| (i) | to
payment and discharge of the claims of all creditors of the Company who are not Members; |
| (ii) | to
payment and discharge of the claims of Member creditors of the Company pro rata based on
the respective amounts of their claims; and |
| (iii) | to
each Member in proportion to number of Shares held by such Member. |
| (d) | The
Board shall furnish each of the Members with a statement prepared by the Company’s
accountants setting forth the assets and liabilities of the Company as of the date of completion
of the dissolution and liquidation as herein provided. Such statement shall also schedule the receipts
and disbursements made with respect to the dissolution and liquidation under this Agreement. |
| (e) | Within
a reasonable period of time following the completion of dissolution in accordance with the
terms hereof, the Company shall terminate and a Certificate of Cancellation of the Company
or such other document or documents as may be required by the Act for such purpose shall
be filed, whereupon the Company will cease to exist in all respects. |
| (f) | Members
and former Members shall look solely to the Company’s assets for any payment in respect
of their Shares, and if the assets of the Company remaining after payment of or due provisions
for all debts, liabilities and obligations of the Company are insufficient to make any payment
in respect of Shares, the Members and former Members shall have no recourse against the Company
or any other Member. |
Article
XI
SPECIAL POWER OF ATTORNEY
| 11.1 | Granting
of Power. The Members hereby grant to each Director and each Officer, with full power
of substitution, and resubstitution, a special power of attorney which constitutes and appoints
each Director and each Officer as an attorney-in-fact for the Members, with power and authority
to each Director and each Officer to act in the name and on behalf, of the Members to make,
execute, consent to, acknowledge, and swear to, in the execution, acknowledgment, and filing
of documents, which shall include, by way of illustration but not of limitation, the following: |
| (a) | This
Agreement, the Certificate, as well as any amendments to or restatements of the foregoing
which are in accordance with the terms of this Agreement and which, under the laws of the
State of Delaware or under the applicable laws of any other jurisdiction, are deemed by the
Board to be necessary, required, advisable or desirable to be filed; |
| (b) | Any
other instrument, certificate, or document which may be required or deemed advisable to be
filed by the Company or the Board under the laws of the State of Delaware or under the applicable
laws of any other jurisdiction to the extent that the Board deems such filing to be necessary,
required, advisable or desirable; |
| (c) | Any
and all amendments, restatements or modifications of the instruments described in the preceding
paragraphs (a) and (b); |
| (d) | Any
document which may be required to effectuate the continuation of the Company, the admission
of additional or substituted Members in accordance with the terms of this Agreement, or the
reduction, dissolution, termination or extension of the Company (provided such continuation,
admission, reduction, dissolution, termination or extension is in accordance with the terms
of this Agreement) or to reflect any reductions in the number of Shares; |
| (e) | Any
administrative or clarifying amendments or modifications of this Agreement, the Certificate
or any other instrument deemed necessary or desirable by the Board to effectuate the terms
and provisions of this Agreement; and |
| (f) | Any
instrument, certificate or document which the Board deems necessary, required, advisable
or desirable to comply with the terms and provisions of Article XII of this Agreement. |
| 11.2 | Extent
of Power. The special power of attorney granted by the Members: |
| (a) | Is
a special power of attorney coupled with an interest, is irrevocable and shall survive and
not be affected by the subsequent death or incapacity of the granting Members; |
| (b) | Shall
survive the delivery of a transfer by any Member of the whole or any portion of his interest;
except that where the transferee thereof has been admitted to the Company as a Subsequent
Member, it shall survive the delivery of such transfer for the sole purpose of enabling the
Board or any Officer to execute, acknowledge and file any instrument necessary to effectuation
such transfer. |
Article
XII
Miscellaneous
| (a) | Except
as otherwise provided in this Section 12.1, this Agreement may be amended, in whole
or in part, with: (i) the approval of a majority of the Board (including the approval of
a majority of the Independent Directors, if required by the Investment Company Act) and (ii)
if required by the Investment Company Act, the approval of the Members by such vote as is
required by the Investment Company Act. |
| (b) | Any
amendment that would: |
| (i) | increase
the obligation of a Member to make any contribution to the capital of the Company; |
| (ii) | reduce
the rights attaching to the Shares held by any person as against the rights attaching to
the Shares held by any other person; or |
| (iii) | modify
the events causing the dissolution of the Company; |
| (iv) | may
be made only if (1) the written consent of each Member adversely affected thereby is obtained
prior to the effectiveness thereof or (2) such amendment does not become effective until
(A) each Member has received written notice of such amendment and (B) any Member objecting
to such amendment has been afforded a reasonable opportunity (pursuant to such procedures
as may be prescribed by the Board) to tender all of such person’s Shares for repurchase
by the Company. |
| (c) | The
power of the Board to amend this Agreement at any time without the consent of the Members
in accordance with paragraph (a) of this Section 12.1 shall specifically include,
but shall not be limited to, the power to: |
| (i) | restate
this Agreement together with any amendments hereto that have been duly adopted in accordance
herewith to incorporate such amendments in a single, integrated document; |
| (ii) | amend
this Agreement (other than with respect to the matters set forth in Section 12.1(b)
hereof) to effect compliance with any applicable law or regulation, including, but not limited
to, the requirements, or to reflect any relaxation of such requirements in the future, of
any U.S. federal securities laws, or any regulations, guidelines or policies or interpretations
of the federal securities laws or regulatory agencies or the staffs thereof, or to clarify
or cure any ambiguity or to correct or supplement any provision hereof that may be inconsistent
with any other provision hereof; and |
| (iii) | amend
this Agreement, taking due consideration of the interests of the Members as a whole, to make
such changes as may be necessary or advisable to ensure that the Company maintains its then-current
federal tax treatment. |
| (d) | No
amendment to this Agreement will be valid to the extent such amendment was not approved in
accordance with the provisions of the Investment Company Act. |
| (a) | A
Member may obtain from the Company such information regarding the affairs of the Company
as is just and reasonable under the Act, subject to reasonable standards (including standards
governing what information and documents are to be furnished, at what time and location and
at whose expense) established by the Board. |
| (b) | Each
Member covenants that, except as required by applicable law or any regulatory body, it will
not divulge, furnish or make accessible to any other person the name and/or address (whether
business, residence or mailing) of any Member (collectively, “Confidential Information”)
without the prior written consent of the Board, which consent may be granted or withheld
in its sole and absolute discretion. |
| (c) | Each
Member recognizes that in the event that this Section 12.2 is breached by any Member
or any of its principals, partners, shareholders, directors, officers, employees or agents
or any of its affiliates, including any of such affiliates’ principals, partners, shareholders,
directors, officers, employees or agents, irreparable injury may result to the non-breaching
Members and the Company. Accordingly, in addition to any and all other remedies at law or
in equity to which the non-breaching Members and the Company may be entitled, it is the intent
of the parties that such Members and the Company shall also have the right to obtain equitable
relief, including, without limitation, injunctive relief, to prevent any disclosure of Confidential
Information, plus reasonable attorneys’ fees and other litigation expenses incurred
in connection therewith. In the event that any non-breaching Member or the Company determines
that any of the other Members or any of its principals, partners, shareholders, directors,
officers, employees or agents or any of its affiliates, including any of such affiliates’
principals, partners, shareholders, directors, officers, employees or agents should be enjoined
from or required to take any action to prevent the disclosure of Confidential Information,
each of the other non-breaching Members agrees to pursue in a court of appropriate jurisdiction
such injunctive relief. |
| 12.3 | Applicability
of Investment Company Act. The parties hereto acknowledge that this Agreement is not
intended to, and does not, set forth the substantive provisions contained in the Investment
Company Act and the Form N-2 that affect numerous aspects of the conduct of the Company’s
business and of the rights, privileges and obligations of the Members. Each provision of this Agreement shall
be subject to and interpreted in a manner consistent with the applicable provisions of the Investment Company Act and the Form N-2. |
| 12.4 | Binding
Effect. Except as otherwise provided in this Agreement, every covenant, term and provision
of this Agreement shall be binding upon and inure to the benefit of the Members and their
respective heirs, legatees, legal representatives, successors, transferees and assigns. |
| 12.5 | Construction.
The Board shall have the full power and authority to construe and interpret this Agreement. |
| 12.6 | Headings.
Section and other headings contained in this Agreement are for reference purposes only and
are not intended to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof. |
| 12.7 | Severability.
Every provision of this Agreement is intended to be severable. If any term or provision hereof
is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not
affect the validity or legality of the remainder of this Agreement. |
| 12.8 | Variation
of Pronouns. All pronouns and any variations thereof shall be deemed to refer to masculine,
feminine or neuter, singular or plural, as the identity of the person or persons may require. |
| 12.9 | Governing
Law. The laws of the State of Delaware shall govern the validity of this Agreement, the
construction of its terms, and the interpretation of the rights and duties of the Members,
without regard to the principles of conflicts of laws. |
| 12.10 | Entire
Agreement. This Agreement constitutes the entire agreement of the parties hereto with
respect to the subject matter hereof. |
| 12.11 | Counterparts.
This Agreement may be executed in several counterparts with the same effect as if all parties
thereto had signed the same document provided that the several counterparts, in the
aggregate shall have been signed by all of the Members. All such counterparts shall be construed
together and shall constitute one Agreement binding upon all the parties thereto. |
| 12.12 | Notices.
All notices shall be in writing and shall be deemed to have been duly given if delivered
personally or if mailed by registered mail, postage prepaid, to the following respective
addresses until a different address is specified in writing by a party to the other party: |
| To the Fund: |
|
Versus Capital Real Assets Fund LLC |
| |
|
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ |
| |
|
Denver, CO 80237 |
| |
|
Attention:
▇▇▇▇▇▇▇ ▇▇▇▇, President
|
| To the Adviser: |
|
Versus Capital Advisors LLC |
| |
|
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ |
| |
|
Denver, CO 80237 |
| |
|
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇, President |
| 12.13 | Waiver
of Terms and Conditions. Any waiver as to any of the terms or conditions of this Agreement
in one instance shall not operate as a waiver of the same terms and conditions or prevent
the enforcement of any of the terms and conditions hereof in any other instance. |
| 12.14 | Litigation.
The Board shall prosecute and defend such actions at law or in equity as may be necessary
in its sole discretion to enforce or protect the interests of the Company. |
[Signature page follows]
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement as of the day first above set forth.
| |
MEMBERS: |
| |
|
|
| |
VERSUS CAPITAL ADVISORS LLC |
| |
|
|
| |
By: |
Versus Capital Group LLC, |
| |
its Managing Member |
| |
|
|
| |
By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇ |
| |
Name: |
▇▇▇▇▇▇▇ ▇▇▇▇ |
| |
Title: |
President |
Exhibit A
OFFICERS
OF
VERSUS CAPITAL
REAL ASSETS FUND LLC
(as of the date of this agreement)
| Name |
Office |
| ▇▇▇▇ ▇. ▇▇▇▇ |
Chief Executive
Officer |
| ▇▇▇▇▇▇▇ ▇.
▇▇▇▇, ▇▇. |
President |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇ |
Chief Investment
Officer |
| ▇▇▇▇ ▇▇▇▇▇ |
Deputy Chief
Investment Officer |
| ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ |
Chief Financial
Officer and Treasurer |
| ▇▇▇▇▇▇ ▇. ▇▇▇▇ |
Assistant Treasurer |
| ▇▇▇▇▇ ▇▇▇▇▇▇ |
Assistant Treasurer |
| ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ |
Chief Compliance
Officer and Secretary |
Schedule A
Initial Members
| Name |
Address |
Capital
Contribution |
| Versus
Capital Advisors LLC |
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ |
$100,000 |