COMPANY ACKNOWLEDGEMENT AND CONSENT
Parties:
______, LLC (the “Company”)[1]
______Bank (the “Lender”)
______(the “Member”)
Background Statements:
The Member owns a limited liability company interest (the “LLC Interest”) in the Company.
The Member desires to grant to the Lender a security interest in the LLC Interest.
As a condition to its acceptance of a security interest in the LLC Interest, the Lender has requested the Company’s confirmation and agreement with respect to certain matters, all as more fully set forth in below.
As a condition to its consent to the grant by the Member of a security interest in the LLC interest,[2] the Company desires the Lender’s confirmation and agreement with respect to certain matters, all as more fully set forth below.
Intending to be legally bound, the Company, the Lender and the Member agree as follows:
1.Confirmation and Agreement of the Company.
(a)The Company hereby confirms to Lender that:
(i)The Company is a limited liability company formed and existing under the Revised Uniform Limited Liability Company Act as enacted and in effect in the State of ______(“RULLCA”). A copy of the Company’s certificate of formation as filed with the filing office of the State of ______on ______(the “Certificate”) is annexed hereto as Exhibit A.
(ii)The Company and the members of the Company (including the Member) have executed an operating agreement dated ______(the “Operating Agreement”), a copy of which (together with all amendments and supplements thereto) is annexed hereto as Exhibit B.
(iii)The Certificate and the Operating Agreement are the only writings that govern the internal affairs of the Company.
(iv)According to the records of the Company, the LLC Interest held by the Member consists of [______] .[3]
(v)The LLC Interest is not certificated.[4]
(vi)All required capital contributions in respect of the LLC Interest have been received by the Company.
(vii)The Company has no right to require the Member to make any additional contributions of capital to the Company in respect of the LLC Interest.
(viii)The Company has no knowledge of any other grant, transfer or assignment (including any prior grant of a security interest) by the Member of or affecting the LLC Interest.
(ix)The grant by the Member to the Lender of the security interest in the LLC Interest is not prohibited by, and does not otherwise violate, the Certificate or the Operating Agreement.
(b)The Company hereby agrees with the Lender that:
(i)The Company will not contest the validity or enforceability of the Lender’s security interest in the Interest.
(ii)The Company will provide prompt notice to the Lender of any of the following events:
A.A breach or default by Member of any obligations under the Certificate or Operating Agreement that could result in termination or forfeiture of the Interest;
B.The Member’s withdrawal (voluntary or involuntary) from the Company;
C.The cessation of business operations by the Company; or
D.The liquidation or dissolution of the Company.
(iii)Upon Company’s receipt of Lender’s written demand in the form of Exhibit A annexed hereto, all distributions by the Company to the Member in respect of the Interest[5] will be sent to Lender.
(iv)No interest in the Company (including the Interest) will be certificated.
2.Confirmation and Agreement of the Lender.
(a)The Lender hereby confirms to the Company that:
(i)Its status with respect to the LLC Interest is that of secured party only.
(ii)It has reviewed the Certificate and Operating Agreement, including all restrictions on future transfers of the LLC Interest.
(iii)The security interest in the LLC Interest has not been granted or accepted as part of any plan or scheme of distribution that would violate the Securities Act of 1933 or the Securities Exchange Act of 1934.
(b)The Lender hereby agrees with Company that:
(i)The Lender will provide prompt notice of any event of the following events:
A.A default by the Member in respect of which Lender is entitled to exercise any remedies that may affect the LLC Interest; or
B.Satisfaction of the obligations secured by the LLC Interest.
(ii)The Lender is bound by the restrictions on transfer of the LLC Interest as set forth in the Certificate and Operating Agreement.
(iii)The Lender will not interfere with the business and management of the Company.
3.Release and Indemnification by Member. Member releases the Company and the Lender from any claim or cause of action arising out of or based upon this Consent and Acknowledgment or any action taken by either of them pursuant to or in reliance upon its terms. Member will indemnify and defend Company and Lender from any loss, liability, damage, cost or expense (including reasonable attorneys fees and other costs of defense) incurred by either of them in connection with or arising out of any action taken by either of them pursuant to this Consent and Acknowledgement.
4.Miscellaneous.
[1] The Company’s governance structure must be carefully reviewed. In some cases, a “manager” may have sufficient authority to bind the Company. In other cases, some level of member consent may be required.
[2] It is important to carefully review all restrictions on transfer contained in the Company’s operating agreement. The agreement may or may not expressly include the grant of a security interest within the definition of “transfers” that are restricted under the Agreement. Under RULLCA, a member’s “transferable interest” (often referred to in an operating agreement as an economic interest) is the member’s right to receive distributions of profit and loss, but not to participate in the management of the affairs of the entity.
[3] The capital structure of the Company should be reviewed. Very often, there is more than one “Class” of membership interest, and each class may vary the rights and preferences of the interest holder. It is important to carefully describe the Interest as it exists on the date of grant. Some interests are measured in terms of “units”, others in terms of “percentages”. In any event, the Lender should understand the extent of rights held by the Member, as well as the Lender’s and Member’s relative ability (or inability) to preserve those rights.
[4] If the Interest is in fact certificated, it is important to ascertain if the Company has “opted in” to Article 8 of the UCC. If it has, the security interest may be perfected by obtaining perfection of the certificate. A security interest perfected in this manner has priority over other perfected security interests in the same collateral. See UCC Section _____.
[5] Presumably, this would not include “guaranteed distributions” under Code Section 707(c) on account of services provided.