LIMITED LIABILITY COMPANY AGREEMENT OF RED OAK CAPITAL INTERMEDIATE INCOME FUND, LLC
Exhibit
2(b)
OF
This Limited
Liability Company Agreement, dated June 24, 2020, of Red Oak
Capital Intermediate Income Fund, LLC, a Delaware limited liability
company (the “Company”), is entered into by the Company
and Red Oak Capital Participation Fund GP, LLC, a Delaware limited
liability company, the sole member of the Company (the
“Member”).
WHEREAS, the
Company was formed pursuant to the Delaware Limited Liability
Company Act, 6 Del.
C. 18 § 101, et seq., as amended from time to
time (the “Act”) with the filing of the certificate of
formation of the Company (the “Certificate”) on June
24, 2020 with the Secretary of State for the State of Delaware;
and
WHEREAS, the Member
and the Company, by execution of this Agreement, hereby agree as
follows:
ARTICLE
I
DEFINITIONS
The following terms
shall have the meanings set forth below unless otherwise expressly
provided herein:
1.01 “Act” shall mean the
Delaware Limited Liability Company Act, 6 Del. C. 18 § 101
et seq., as amended from time to
time.
1.02 “Affiliate” shall mean any
Person that directly or indirectly controls, is controlled by, or
is under common control with another Person.
1.03 “Agreement” shall mean
this Limited Liability Company Agreement, as originally executed
and as amended from time to time.
1.04 “Capital Contribution”
shall mean any contribution to the capital of the Company by the
Member in cash, property or services, or a binding obligation to
contribute cash, property or services, whenever made.
“Initial Capital
Contribution” shall mean the initial Capital
Contribution of the Member pursuant to this Agreement.
1.05 “Certificate” shall mean
the certificate of formation of the Company, as amended from time
to time.
1.06 “Code” shall mean the
Internal Revenue Code of 1986, as amended, or corresponding
provisions of subsequent superseding federal revenue
laws.
1.07 “Company” shall mean Red
Oak Capital Intermediate Income Fund, LLC, a Delaware limited
liability company.
1.08 “Entity” shall mean any
general partnership, limited liability company, corporation, joint
venture, trust, business trust, cooperative or other
association.
1.09 “Limited Liability Company
Interest” shall mean the Member’s ownership
interest in the Company’s capital, profits and loss and the
voting and other rights and obligations with respect thereto as set
forth in this Agreement.
1.10 “Member” shall mean Red
Oak Capital Participation Fund GP, LLC, a Delaware limited
liability company, the sole Member of the Company.
1.11 “Person” shall mean any
natural person or Entity, and the heirs, executors, administrators,
legal representatives, successors, and assigns of such Person where
the context so admits.
ARTICLE
II
PURPOSE AND POWERS OF COMPANY
2.01
Purpose. 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 engaging in any and all
activities necessary or incidental to the foregoing, which shall
include but not be limited to acquiring minority participation interests in
commercial real estate loans made by entities affiliated with the
Company.
2.02 Powers.
The Company shall have the power and authority to take any and all
actions necessary, appropriate, advisable, convenient or incidental
to or for the furtherance of the purpose set forth in Section
2.01
ARTICLE
III
NAME AND ADDRESS OF SOLE MEMBER
3.01
Name and Address.
The name, address and Limited Liability Company Interest of the
Member are as follows:
|
Name and
Address
|
Limited Liability
Company Interest
|
|
|
|
|
Red Oak Capital
Participation Fund GP, LLC
|
100%
|
|
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Attn: ▇▇▇▇
▇▇▇▇▇▇▇▇
|
|
ARTICLE
IV
MANAGEMENT
4.01
In General. The
business and affairs of the Company shall be conducted solely and
exclusively by the Member, as provided herein. The Member shall
have all rights and powers on behalf and in the name of the Company
to perform all acts necessary and desirable to the objects and
purposes of the Company. All determinations, decisions and actions
made or taken by the Member (or its designee(s)) shall be
conclusive and binding upon the Company. ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ are each hereby appointed as an
authorized signatory of the Company and shall each have the
authority, acting alone, to execute on behalf of the Company such
agreements, contracts, instruments and other documents as the
Member shall from time to time approve, such approval to be
conclusively evidenced by the execution and delivery thereof by any
of the foregoing designated authorized signatories. Third
parties may conclusively rely upon the acts of ▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇ and/or ▇▇▇▇▇ ▇▇▇▇▇▇▇ as evidence of the authority of
such persons for all purposes in respect of their dealings with the
Company.
ARTICLE
V
CAPITALIZATION OF THE COMPANY; ALLOCATIONS AND
DISTRIBUTIONS
5.01
Member Capital
Contributions. The Member, upon the execution of this
Agreement, shall contribute as the Member’s Initial Capital
Contribution One Hundred Dollars ($100.00). The Member may but is
not required to make additional Capital Contributions to the
Company.
5.02
Interests and Return of
Capital Contribution. The Member shall not receive any
interest on the Member’s Capital Contribution. Except as
otherwise specifically provided for herein, the Member shall not be
allowed to withdraw or have refunded any Capital
Contribution.
5.03
Allocation of Profits and
Losses; Tax Status. The Company’s profits and losses
shall be allocated to the Member. At all times that the Company has
only one member, it is the intention of the Member that the Company
be disregarded for federal, state, local and foreign income tax
purposes.
5.04 Distributions.
All distributions of cash or other property (except upon the
Company’s dissolution, which shall be governed by the
applicable provisions of the Act and Article VI hereof) shall be
made to 100% to the Member; provided, however, that until such time
as all obligations under any bonds issued by the Company pursuant
to an offering thereof have been repaid in full, the Company shall
not make any distributions to the Member pursuant to this Section
5.04, other than as required to offset the Company’s tax
liability for allocations of profits made pursuant to Section 5.03.
All amounts withheld pursuant to the Code or any provisions of
state or local tax law with respect to any payment or distribution
to the Member from the Company shall be treated as amounts
distributed to the Member pursuant to this Section
5.04.
ARTICLE
VI
TERM; DISSOLUTION AND TERMINATION
6.01 Term. The term of the Company
shall be perpetual unless the Company is dissolved and terminated
in accordance with this Article VI.
6.02 Events of Dissolution. The
Company shall be dissolved, and its affairs shall be wound up, upon
the first to occur of the following: (a) the written consent of the
Member, (b) the occurrence of any event other than the death or
incompetency of the Member that terminates the continued membership
of the Member without the admission of a successor member to the
Company or (c) the entry of a decree of judicial dissolution under
Section 18-802 of the Act or any successor statute. In the event of
the death or incompetency of the Member, the Company shall not
dissolve but the personal representative (as defined in the Act) of
the Member shall agree in writing to continue the Company and to
the admission of the personal representative of the Member or its
nominee or designee to the Company as a member, effective as of the
death or incompetency of the Member.
6.03
Liquidation. Upon
the dissolution of the Company, the Member shall wind up its
affairs and distribute its assets in accordance with the Act by
either or a combination of the following methods as the Member (or
the Person or Persons carrying out the liquidation) shall
determine:
(a)
Selling the Company’s assets and, after the payment of
Company liabilities, distributing the net proceeds therefrom to the
Member; and/or
(b)
Distributing the Company’s assets to the Member in kind,
subject to its liabilities.
6.04
Orderly
Liquidation. A reasonable time as determined by the Member
(or the Person or Persons carrying out the liquidation) not to
exceed eighteen (18) months shall be allowed for the orderly
liquidation of the assets of the Company and the discharge of
liabilities to the creditors so as to minimize any losses attendant
upon dissolution.
6.05
Distributions. Upon
liquidation, the Company assets (including any cash on hand) shall
be distributed in the following order and in accordance with the
following priorities:
(a)
First, to the payment of the debts and liabilities of the Company
and the expenses of liquidation; then
(b)
Second, to the setting up of any reserves which the Member (or the
Person or Persons carrying out the liquidation) deem reasonably
necessary for any contingent or unforeseen liabilities or
obligations of the Company. At the expiration of such period as the
Member (or the Person or Persons carrying out the liquidation)
shall deem advisable, but in no event to exceed eighteen (18)
months, the Company shall distribute the balance thereof in the
manner provided in the following subsection; then
(c)
Third, 100% to the Member in accordance with its Limited Liability
Company Interest.
ARTICLE
VII
LIABILITY OF MEMBER; OTHER BUSINESS AND TRANSACTIONS
7.01
Liability. The
Member shall not have any liability for the obligations or
liabilities of the Company except to the extent provided in the Act
or as otherwise agreed in contract.
7.02
Outside Business.
The Member or any of its Affiliates may engage in or possess an
interest in any business venture of any nature or description,
independently or with others, similar or dissimilar to the business
of the Company, and the Company shall have no rights by virtue of
this Agreement in and to such independent ventures or the income or
profits derived therefrom, and the pursuit of any such venture,
even if competitive with the business of the Company, shall not be
deemed wrongful or improper. The Member or any of its Affiliates
shall not be obligated to present any particular investment
opportunity to the Company even if such opportunity is of a
character that, if presented to the Company, could be taken by the
Company, and the Member or any of its Affiliate shall have the
right to take for its own account (individually or as a partner,
shareholder, fiduciary or otherwise) or to recommend to others any
such particular investment opportunity.
ARTICLE
VIII
EXCULPATION AND INDEMNIFICATION
8.01
Exculpation.
(i) The Member, whether
acting as Member or in any other capacity, shall, to the fullest
extent permitted by law, have no liability to the Company or to any
other person for any loss, damage or claim incurred by reason of
any error of judgment, act or omission, other than any act or
omission constituting gross negligence or willful malfeasance,
performed or omitted by the Member.
(ii)
The 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 matters the Member reasonably believes
are within the professional or expert competence of such person or
entity and who or which 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 any other facts pertinent to the
existence and amount of assets from which distributions to the
Member might properly be paid. The foregoing provision shall in no
way be deemed to reduce the limitation on liability of the Member
provided in Section 8.01(i).
8.02
Duties and Liabilities of the
Member.
(i) To the extent that,
at law or in equity, the Member has duties (including fiduciary
duties) and liabilities relating thereto to the Company or to any
other person, the Member, acting under this Agreement, shall not be
liable to the Company or to any other Person for its reliance on
the provisions of this Agreement. The provisions of this Agreement,
to the extent that they restrict the duties and liabilities of the
Member otherwise existing at law or in equity, are agreed to
replace such other duties and liabilities of the
Member.
(ii) Whenever in this
Agreement the Member is permitted or required to make a decision
(a) in his “discretion” or under a grant of similar
authority or latitude, the Member shall be entitled to consider
only such interests and factors as it desires, including its own
interests, and shall have no duty or obligation to given any
consideration to any interest of or factors affecting the Company
or any other Person, or (b) in its “good faith” or
under another express standard, the Member shall act under such
express standard and shall not be subject to any other or different
standard imposed by this Agreement or other applicable
law.
8.03 Indemnification. To
the fullest extent permitted by applicable law, the Member
(irrespective of the capacity in which it acts) shall be entitled
to indemnification from the Company for any loss, damage or claim
incurred by the Member by reason of any error of judgment, act or
omission, other than an act or omission constituting gross
negligence or willful malfeasance, performed or omitted by it on
behalf of the Company; provided, however, that any indemnity under
this Section 8.03 shall be provided out of and to the extent of
Company assets only, and the Member shall not have any personal
liability on account thereof.
8.04 Expenses.
To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by the Member 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.
8.05 Insurance.
The Company may purchase and maintain insurance, to the extent and
in such amounts as the Member shall, in its sole discretion, deem
reasonable, against any liability that may be asserted against or
expenses that may be incurred by any such person or entity in
connection with the activities of the Company or such indemnities,
regardless of whether the Company would have the power to indemnify
such person or entity against such liability under the provisions
of this Agreement.
8.06
Other. The Member
and the Company may enter into indemnity contracts with any other
Person granting such Person rights of indemnification and may adopt
written procedures pursuant to which arrangements are made for the
advancement of expenses and the funding of obligations under this
Article VIII and containing such other procedures regarding
indemnification, all as the Member determines in its sole
discretion.
ARTICLE
IX
MISCELLANEOUS PROVISIONS
9.01
Application of Delaware
Law. This Agreement, and the interpretation hereof, shall be
governed exclusively by its terms and by the laws of the State of
Delaware, without reference to its choice of law provisions, and
specifically the Act.
9.02
Amendments. No
amendment or modification of this Agreement shall be effective
unless approved in writing by the Member.
9.03
Construction.
Whenever the singular number is used in this Agreement and when
required by the context, the same shall include the plural, and the
masculine gender shall include the feminine and neuter genders, and
vice versa.
9.04
Headings. The
headings in this Agreement are inserted for convenience only and
are in no way intended to describe, interpret, define, or limit the
scope, extent or intent of this Agreement or any provision
hereof.
9.05
Severability. If
any provision of this Agreement or the application thereof to any
Person or circumstance shall be invalid, illegal or unenforceable
to any extent, the remainder of this Agreement and the application
thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law.
9.06
Heirs, Successors and
Assigns. Each and all of the covenants, terms, provisions
and agreements herein contained shall be binding upon and inure to
the benefit of the parties hereto and, to the extent permitted by
this Agreement, their respective heirs, legal representatives,
successors and assigns.
9.07
Creditors. None of
the provisions of this Agreement shall be for the benefit of or
enforceable by any creditor of the Company.
9.08
Entire Agreement.
This Agreement sets forth all of the promises, agreements,
conditions and understandings between the parties respecting the
subject matter hereof and supersedes all prior or contemporaneous
negotiations, conversations, discussions, correspondence, memoranda
and agreements between the parties concerning such subject
matter.
The undersigned,
being the sole Member, hereby agrees, acknowledges and certifies
that the foregoing Limited Liability Company Agreement constitutes
the sole and entire Limited Liability Company Agreement of the
Company, adopted by the sole Member of the Company effective as of
the date first written above, and shall be binding on the Company
notwithstanding that the Company has only a single
Member.
SOLE
MEMBER:
RED OAK CAPITAL
PARTICIPATION FUND GP, LLC,
a Delaware limited
liability company
By: Red
Oak Capital Group, LLC,
a Delaware limited
liability company
Its: Manager
By:
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇
Its:
Manager
By:
Name:
▇▇▇▇▇▇
▇▇▇▇▇
Its:
Manager
By:
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇
Its:
Manager
The Company hereby
executes this Limited Liability Company Agreement for purposes of
becoming a party hereto and agreeing to perform its obligations and
duties hereunder and being entitled to enjoy its rights and
benefits hereunder.
a Delaware limited
liability company
By:
Red Oak Capital Participation Fund GP, LLC,
a Delaware limited
liability company
Its: Sole
Member
By: Red
Oak Capital Group, LLC,
a Delaware limited
liability company
Its: Manager
By:
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇
Its:
Manager
By:
Name:
▇▇▇▇▇▇
▇▇▇▇▇
Its:
Manager
By:
Name:
▇▇▇▇▇
▇▇▇▇▇▇▇
Its:
Manager