TULP 8-K
Bloomia Holdings, Inc. (TULP)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported)
(Exact Name of Registrant as Specified in its Charter)
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(Registrant’s Telephone Number, Including Area Code)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2):
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter):
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 1.01. Entry into Material Definitive Agreement.
Credit Facility Amendment
On September 15, 2025, Lendway, Inc. (the “Company”), as parent guarantor, entered into a Second Amendment to the existing Credit Agreement dated February 20, 2024 and previously amended on October 16, 2024, together with its direct and indirect subsidiaries Tulp 24.1, LLC, as borrower, and each of Tulipa Acquisitie Holding B.V., Bloomia B.V., and Fresh Tulips USA, LLC, as guarantors, with Associated Bank, N.A., as agent for itself and the other lenders from time-to-time party thereto (the “Agent”). Under the Credit Agreement, as amended (the “Credit Agreement”), among other things, the revolving facility capacity was temporarily increased from $6,000,000 to $10,000,000 and the definition of eligible inventory will continue to include inventory in the Netherlands, in each case until April 30, 2026. Additionally, the senior cash flow leverage ratio covenant levels were further revised. Commencing September 30, 2025, the interest rate for all loans under the facility will be based on a term SOFR rate for an interest period selected by the Company plus an applicable margin, with a range from 3.00% to 4.00% based on the Company’s cash flow leverage ratio. As of September 18, 2025, the Company had an outstanding balance of $6.1 million under the revolving facility.
The foregoing description of the material terms of the revised Credit Agreement is qualified by the text of the Second Amendment to the Credit Agreement, which is filed as Exhibit 10.1 to this Current Report, and incorporated by reference into this Item 1.01.
Promissory Notes
On September 15, 2025, the Company entered into unsecured Promissory Notes (collectively, the “Notes”) with Air T, Inc. (“Air T”), AO Partners I, L.P. (“AO Partners Fund”), and Gary S. Kohler (“Kohler,” and, together with Air T and AO Partners Fund, the “Note Lenders”), pursuant to which the Lenders have agreed to lend to the Company a total of $4.0 million, in the amounts of $1,100,156, $1,699,844, and $1,200,000, respectively. Proceeds from the notes are expected to be used to fund operation of the Bloomia business. Amounts outstanding under the Notes bear interest at a fixed rate of 13.5% per year. The Notes are scheduled to mature and all principal and accrued but unpaid interest will become due on June 1, 2027. The Notes restrict the Company’s ability to obtain additional indebtedness, either directly or through its subsidiaries, other than existing indebtedness and usual and customary indebtedness incurred in the operation of the Company’s business, which restriction may be waived by the Lenders holding a majority interest in the Notes. No closing or origination fees are being paid to any Lender.
Air T beneficially owns greater than 10% of our outstanding common stock and, together with AO Partners Fund, is a member of a group of stockholders that collectively owns approximately 40% of our outstanding common stock. Additionally, our current director and Co-Chief Executive Officer, Mark R. Jundt, serves as General Counsel and Corporate Secretary of the Air T, current director and Co-Chief Executive Officer, Daniel C. Philp, serves as Senior Vice President of Corporate development at Air T, and current director, Nicholas J. Swenson, serves as President and Chief Executive Officer of the Lender and is himself a member of the stockholder group. Each of AO Partners Fund and Kohler beneficially owns greater than 5% of our outstanding common stock. Kohler also is a member of the board of directors of Air T. The entry into the Notes was pre-approved by the Audit Committee of our Board of Directors in accordance with our Related Person Transaction Approval Policy.
The foregoing description of the material terms of the Notes is qualified by the form of the Notes, which is filed as Exhibit 10.2 to this Current Report, and incorporated by reference into this Item 1.01.
Amended and Restated LLC Agreement
On September 15, 2025, the Company entered into an Amended and Restated Limited Liability Company Agreement (the “LLC Agreement”) with its wholly owned subsidiary, Tulp 24.1, LLC, and Werner F. Jansen (“Jansen”), to (i) fix the existing membership interest percentage among the two members, regardless of capital account balances and (ii) prioritize the repayment of unreturned capital contributions to the members in the payment of future distributions, if any. The
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Company’s expected contribution of $4 million to Tulp 24.1, LLC has also been excluded from the members’ pre-emptive rights.
The foregoing description of the amended terms of the LLC Agreement is qualified by the text of the LLC Agreement, which is filed as Exhibit 10.3 to this Current Report, and incorporated by reference into this Item 1.01.
Item 2.03. | Creation of A Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
The disclosure set forth in Item 1.01 relating to the Credit Agreement and the Notes is incorporated into this Item 2.03 by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. |
| Description |
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10.1 | |||||
10.2 | |||||
10.3 | |||||
104 | Cover Page Interactive Data File | ||||
Cautionary Statement for the Purpose of Safe Harbor Provisions of the Private Securities Litigation Reform Act of 1995
Statements in this Current Report on Form 8-K that are not statements of historical or current facts are considered forward-looking statements within the meaning of the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, as amended. The words “anticipate,” “believe,” “continue,” “expect,” “keep,” “plan,” “positions,” “potential,” “promises,” “remain,” “seek,” “will” and similar expressions identify forward-looking statements. Readers are cautioned not to place undue reliance on these or any forward-looking statements, which speak only as of the date of this report. Statements made in this report regarding, for instance, uses of proceeds and potential borrowing capacity under the Credit Agreement, are forward-looking statements. These forward-looking statements are based on current information, which we have assessed and which by its nature is dynamic and subject to rapid and even abrupt changes. As such, actual results may differ materially from the results or performance expressed or implied by such forward-looking statements. Forward-looking statements involve known and unknown risks, uncertainties and other factors, including our ability to maintain and integrate the acquired business, changes competition or price pressure resulting from public announcement of the acquisition, changes in demand and customer requirements for our products, delays or interruptions in production resulting from hazards, transportation limitations or other extraordinary events outside our control that may negatively impact our business or the supply chains in which we participate, risks associated with international operations, including import regulations, and those set forth in our Transition Report on Form 10-KT for the year ended June 30, 2025, and additional risks, identified in our Quarterly Reports on Form 10-Q and our other Current Reports on Form 8-K filed with the SEC. Such forward-looking statements should be read in conjunction with Lendway’s filings with the SEC. Lendway assumes no responsibility to update the forward-looking statements contained in this report release or the reasons why actual results would differ from those anticipated in any such forward-looking statement, other than as required by law.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Current Report to be signed on its behalf by the undersigned hereunto duly authorized.
LENDWAY, INC. | ||
Dated: September 18, 2025 | By | /s/ Elizabeth E. McShane |
Elizabeth E. McShane | ||
Chief Financial Officer | ||
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Exhibit 10.1
SECOND AMENDMENT TO CREDIT AGREEMENT
This SECOND AMENDMENT TO CREDIT AGREEMENT (this “Amendment”), made and entered into as of September 15, 2025, is by and among (1) TULP 24.1, LLC, a Delaware limited liability company (“Bloomia Acquisition”, together with each other Person joined to the Credit Agreement (as defined below) as a borrower from time to time, each, a “Borrower”, and collectively, the “Borrowers”), (2) LENDWAY, INC., a Delaware corporation (the “Parent Guarantor”), as a Guarantor, (3) TULIPA ACQUISITIE HOLDING B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the Laws of the Netherlands (“Tulipa”), as a Guarantor, (4) BLOOMIA, B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the Laws of the Netherlands (“Bloomia”), as a Guarantor, (5) FRESH TULIPS USA, LLC, a Virginia limited liability company (“Fresh Tulips”), as a Guarantor, (6) each other Person (if any) from time to time party to the Credit Agreement (as defined below) as a Guarantor, (7) the lenders that are signatories to the Credit Agreement (as defined below) (individually, each a “Lender” and collectively, the “Lenders”) and (8) Associated Bank, N.A., a national banking association, one of the Lenders, as agent for the Lenders (in such capacity, the “Agent”).
RECITALS
1.The Agent, the Lenders and the Borrowers and the Guarantors entered into that certain Credit Agreement dated as of February 20, 2024 (as amended that certain First Amendment to Credit Agreement dated as of October 16, 2024 and as further amended, restated or otherwise modified from time to time, the “Credit Agreement”).
2.The Borrowers desire to amend certain provisions of the Credit Agreement, and the Agent has agreed to make such amendments, subject to the terms and conditions set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto hereby covenant and agree to be bound as follows:
“Applicable Margin”: For any day, the rate per annum set forth below opposite the applicable Level then in effect (based on the Senior Cash Flow Leverage Ratio measured as of the last day of each fiscal quarter):
Tier | Senior Cash Flow Leverage Ratio | Applicable Margin |
I | Less than 3.00 to 1.00 | 3.00% |
II | Less than 4.00 to 1.00 but greater than or equal to 3.00 to 1.00 | 3.50% |
III | Greater than or equal to 4.00 to 1.00 | 4.00% |
Any increase or decrease in the Applicable Margin resulting from a change in the Senior Cash Flow Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 5.1(d) for the relevant fiscal quarter; provided, however, (a) the Borrowers shall provide notice to the Agent of any change in the Applicable Margin, and (b) that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Lenders, the highest rate set forth in each column of the Applicable Margin, in each case as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and in each case shall remain in effect until the first Business Day following the date on which such Compliance Certificate is delivered. In addition, at all times when the rate of interest is determined, at the option of the Required Lenders, pursuant to Section 2.4(b), the highest rate set forth in each column of the Applicable Margin shall apply.
If, as a result of any restatement of or other adjustment to the financial statements of the Borrowers and their Subsidiaries or for any other reason, the Borrowers, or the Lenders determine that (i) the Senior Cash Flow Leverage Ratio as calculated by the Borrowers as of any applicable date was inaccurate and (ii) a proper calculation of the Senior Cash Flow Leverage Ratio would have resulted in higher pricing for such period, the Borrowers shall immediately and retroactively be obligated to pay to the Agent for the account of the applicable Lenders or the Agent (in its capacity as issuer of the Letters of Credit under this Agreement, or any successor to the Agent in such capacity), as the case may be, promptly on demand by the Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Agent or any Lender), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period.
This paragraph shall not limit the rights of the Agent or any Lender, as the case may be, under any provision of this Agreement to payment of any Obligations hereunder at the rate of interest determined under Section 2.4(b). The Borrower’s obligations under this paragraph shall survive the termination of the obligation of the Lenders to make Revolving Loans and the repayment of all other Obligations hereunder.
The initial Applicable Margin shall be set forth in Tier I until the first Business Day immediately following the date a Compliance Certificate is delivered to the Agent pursuant to Section 5.1(d) for the fiscal quarter ending on or about September 30, 2025. Any adjustment in the Applicable Margin shall be applicable to all Loans and Letters of Credit then existing or subsequently made or issued.
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“Revolving Commitment Amount”: With respect to a Lender, the amount set opposite such Lender’s name on Schedule 1.1(a) hereto or opposite such caption in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement; provided that the Revolving Commitment Amount shall be temporarily increased to be the amount set opposite such Lender’s name on Exhibit A attached to the Second Amendment starting from the Second Amendment Effective Date to April 30, 2026 (the “Temporarily Increased Revolving Commitments”).
“Second Amendment”: That certain Second Amendment to Credit Agreement dated as of September 15, 2025.
“Second Amendment Effective Date”: September 15, 2025.
Section 5.17Parent Equity Contribution. By September 30, 2025, the Parent shall make a permanent cash equity contribution to Bloomia Acquisition in an amount not less than $4,000,000.
Section 6.18Senior Cash Flow Leverage Ratio. Commencing on September 30, 2025, the Borrowers will not permit the Senior Cash Flow Leverage Ratio to be more than (a) 4.75 to 1.00 as of the last day of the fiscal quarters ending on or about September 30, 2025 and December 31, 2025, (b) 4.50 to 1.00 as of the last day of the fiscal quarters ending on or about March 31, 2026, (c) 3.00 to 1.00 as of the last day of the fiscal quarters ending on or about June 30, 2026 and September 30, 2026, (d) 2.75 to 1.00 as of the last day of the fiscal quarters ending on or about December 31, 2026, (e) 2.50 to 1.00 as of the last day of the fiscal quarters ending on or about December 31, 2027, and (f) 2.25 to 1.00 as of the last day of the fiscal quarters ending on or about December 31, 2028 and the last day of each fiscal quarter ending thereafter.
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“Eligible Inventory”: all inventory held by the Borrowers and their Subsidiaries (excluding work in process and supplies) and which:
| (a) | is subject to a perfected, first priority security interest in favor of the Agent free and clear of all other Liens other than Permitted Liens; provided that the Agent may consider such inventory constitutes Foreign Collateral the security interest over which may not be perfected as eligible in the Agent’s sole discretion and, without limiting the generality of Section 5.11, reserves the right to require any Loan Party take necessary steps at the sole cost and expense of such Loan Party from time to time to perfect and maintain the validity, effectiveness and priority of any security interest over such inventory in any applicable jurisdiction; |
| (b) | is located at one of the Borrowers or their Subsidiaries’ business locations in the United States set forth in the US Security Agreement or in the Netherlands as set forth in the Netherlands Security Documents; |
| (c) | is not so identified to a contract to sell that it is evidenced by an account; |
| (d) | is of good and merchantable quality free from any defects which would affect the market value thereof; |
| (e) | is not, as reasonably determined by the Agent, nonsaleable in the ordinary course of the Borrowers’ or their Subsidiary’s business; |
| (f) | is insured against loss or damage in accordance with the provisions of the US Security Agreement or the Netherlands Security Documents (as applicable); |
| (g) | is not subject to or covered by a negotiable document of title, including, without limitation, negotiable warehouse receipts and negotiable bills of lading; and |
(h)is not a product that has been discontinued by the manufacturer or by the vendor from which the Borrowers or such Subsidiary purchased such inventory;
provided, that the Agent shall, notwithstanding the foregoing, have the right, in the reasonable exercise of its Permitted Discretion, to establish reserves against the aggregate amount of Eligible Inventory.
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by the Borrowers and the Guarantors of, and compliance by the Borrowers and Guarantors with, the following:
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[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed as of the date and year first above written.
BORROWER:
TULP 24.1, LLC, as a Borrower
By: /s/ Elizabeth McShane
Name: Elizabeth E. McShane
Title: Chief Financial Officer
GUARANTORS:
LENDWAY, INC., as Parent Guarantor
By: /s/ Elizabeth McShane
Name: Elizabeth E. McShane
Title: Chief Financial Officer
TULIPA ACQUISITIE HOLDING B.V., as a Guarantor
By: /s/ Elizabeth McShane
Name: Elizabeth McShane
Title: Director
BLOOMIA B.V., as a Guarantor
By: /s/ Elizabeth McShane
Name: Elizabeth McShane
Title: Director
FRESH TULIPS USA, LLC, as a Guarantor
By: /s/ Werner Jansen
Name: Werner F. Jansen
[Signature Page to Second Amendment to Credit Agreement (Bloomia)]
Title: Chief Executive Officer
ASSOCIATED BANK, NATIONAL
ASSOCIATION, as Agent and as a Lender
By: /s/ Nicholas G. Myers
Name: Nicholas G. Myers
Title: Senior Vice President
[Signature Page to Second Amendment to Credit Agreement (Bloomia)]
EXHIBIT A
REVOLVING COMMITMENTS
Lender | Revolving |
Associated Bank, N.A. | $10,000,000 |
Exhibit 10.2
PROMISSORY NOTE
FOR VALUE RECEIVED, LENDWAY, INC., a Delaware corporation (the “Borrower”), hereby promises to pay to [LENDER] or its endorsees, successor and assigns (together with its endorsees, successors, and assigns, the “Lender”), at its office located at [●] (or at such other place of payment designated by the holder hereof to the Borrower), the principal sum equal to [AMOUNT] (the “Principal Amount”) under this Promissory Note (this “Note”), and to pay interest, as set forth below, in lawful money of the United States of America in immediately available funds, payable without presentment, demand, protest or notice of any kind, all of which are hereby expressly waived by the Borrower, and without set-off, counterclaim or other deduction of any nature.
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then, and in every such event (other than an event described in paragraph (c) or (d) above), and at any time thereafter during the continuance of such event, the Lender, by notice to Borrower, may declare the Principal Amount to be forthwith due and payable in whole or in part, whereupon the principal so declared to be due and payable, together with accrued interest thereon and all other obligations of the Borrower accrued hereunder, shall become forthwith due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein to the contrary notwithstanding; and in any event described in paragraph (c) or (d) above, the Principal Amount, together with accrued interest thereon and all other obligations of the Borrower accrued hereunder, shall automatically become due and payable, without presentment, demand, protest or any other notice of any kind, all of which are hereby expressly waived by the Borrower, anything contained herein to the contrary notwithstanding.
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IN WITNESS WHEREOF and intending to be legally bound hereby, the Borrower has executed this Note as of the date hereof.
LENDWAY, INC., as Borrower
By:
Name:Elizabeth E. McShane
Title:Chief Financial Officer
[LENDER], as Lender
[By:]
[Name:]
[Title:]
[Signature Page to Promissory Note]
Exhibit 10.3
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
among
TULP 24.1, LLC
and
THE MEMBERS NAMED HEREIN
dated as of
September 15, 2025
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iii
iv
SECOND AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
This Second Amended and Restated Limited Liability Company Agreement of Tulp 24.1, LLC, a Delaware limited liability company (the “Company”), is entered into as of September 15, 2025 (the ”Effective Date”) by and among the Company, Lendway, Inc., a Delaware corporation (the “Majority Member”), and Werner F. Jansen (the “Minority Member”).
RECITALS
WHEREAS, the Company was formed under the laws of the State of Delaware by the filing of a Certificate of Formation with the Secretary of State of Delaware (the “Secretary of State”) on January 16, 2024 (the “Certificate of Formation”) for the purposes set forth in Section 2.05 of this Agreement;
WHEREAS, at the time of formation, the Majority Member was the sole member of the Company and executed that certain Limited Liability Company Agreement of the Company dated January 17, 2024, which was amended and restated by that Amended and Restated Limited Liability Company Agreement, dated as of February 22, 2024 (the “Previous Agreement”);
WHEREAS, the Members wish to amend and restate the Previous Agreement in its entirety, replace the Previous Agreement with this Agreement and enter into this Agreement setting forth the terms and conditions governing the operation and management of the Company.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
“Affiliate” means, with respect to any Person, any other Person who, directly or indirectly (including through one or more intermediaries), controls, is controlled by, or is under common control with, such Person. For purposes of this definition, “control,” when used with respect to any specified Person, shall mean the power, direct or indirect, to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities or partnership or other ownership interests, by contract or otherwise; and the terms “controlling” and “controlled” shall have correlative meanings.
“Agreement” means this Second Amended and Restated Limited Liability Company Agreement, as executed and as it may be amended, modified, supplemented or restated from time to time, as provided herein.
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“Applicable Law” means all applicable provisions of (a) constitutions, treaties, statutes, laws (including the common law), rules, regulations, decrees, ordinances, codes, proclamations, declarations or orders of any Governmental Authority; (b) any consents or approvals of any Governmental Authority; and (c) any orders, decisions, advisory or interpretative opinions, injunctions, judgments, awards, decrees of, or agreements with, any Governmental Authority.
“Bankruptcy” means, with respect to a Member, the occurrence of any of the following: (a) the filing of an application by such Member for, or a consent to, the appointment of a trustee of such Member’s assets; (b) the filing by such Member of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing such Member’s inability to pay its debts as they come due; (c) the making by such Member of a general assignment for the benefit of such Member’s creditors; (d) the filing by such Member of an answer admitting the material allegations of, or such Member’s consenting to, or defaulting in answering a bankruptcy petition filed against such Member in any bankruptcy proceeding; or (e) the expiration of sixty (60) days following the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating such Member a bankrupt or appointing a trustee of such Member’s assets.
“BBA” means the Bipartisan Budget Act of 2015.
“Book Depreciation” means, with respect to any Company asset for each Fiscal Year, the Company’s depreciation, amortization, or other cost recovery deductions determined for federal income tax purposes, except that if the Book Value of an asset differs from its adjusted tax basis at the beginning of such Fiscal Year, Book Depreciation shall be an amount which bears the same ratio to such beginning Book Value as the federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year bears to such beginning adjusted tax basis; provided, that if the adjusted basis for federal income tax purposes of an asset at the beginning of such Fiscal Year is zero and the Book Value of the asset is positive, Book Depreciation shall be determined with reference to such beginning Book Value using any permitted method selected by the Managing Member in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv)(g)(3).
“Book Value” means, with respect to any Company asset, the adjusted basis of such asset for federal income tax purposes, except as follows:
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“Business” means sourcing tulip bulbs from producers in the Netherlands, Chile and New Zealand and operating greenhouses to hydroponically grow tulips and selling those tulips in the United States of America, South-Africa and Latin America.
“Business Day” means a day other than a Saturday, Sunday or other day on which commercial banks in the State of Delaware are authorized or required to close.
“Capital Account” has the meaning set forth in Section 3.03.
“Capital Contribution” means, for any Member, the total amount of cash and cash equivalents and the Book Value of any property contributed to the Company by such Member.
The Company shall first provide Service Provider with written notice and an opportunity to cure such breach, if curable, in the reasonable discretion of the Managing Member, and identify with specificity the action needed to cure within thirty (30) days of Service Provider’s receipt of written notice from the Company or an Affiliate of the Company.
“Certificate of Formation” has the meaning set forth in the Recitals.
“Change of Control” (i) means the sale of all or substantially all of the assets of the Company to an Independent Third Party; (ii) a sale resulting in more than 50% of the Membership Interests of the Company being held by an Independent Third Party; or (iii) a merger, consolidation, recapitalization, or reorganization of the Company with or into an Independent Third Party.
“Code” means the Internal Revenue Code of 1986, as amended.
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“Company” has the meaning set forth in the Preamble.
“Company Interest Rate” has the meaning set forth in Section 6.04(c).
“Company Minimum Gain” means “partnership minimum gain” as defined in Treasury Regulations Section 1.704-2(b)(2), substituting the term “Company” for the term “partnership” as the context requires.
“Competitive Activity” has the meaning set forth in Section 4.07(a).
“Competitor” has the meaning set forth in Section 4.07(a).
“Confidential Information” has the meaning set forth in Section 4.06(a).
“Control,” including the terms “controlled by” and “under common control with,” means the power to direct the affairs of a Person by reason of ownership of voting securities, by contract, or otherwise.
“Covered Person” has the meaning set forth in Section 8.01(a).
“Delaware Act” means the Delaware Limited Liability Company Act, Title 6, Chapter 18, §§ 18-101, et seq.
“Designated Individual” has the meaning set forth in 10.02(a).
“Disability” means a Member (or equity owner of a Member that is an entity if such equity owner controls the Member who has, for a period of at least six (6) continuous months been (i) considered disabled under any disability insurance policy maintained by the Company with respect to such Member (or equity owner of a Member that is an entity if such equity owner controls the Member) or (ii) if no such disability insurance policy exists, determined to be disabled for purposes of the Social Security Act.
“Drag-Along Member” has the meaning set forth in Section 9.03(a).
“Drag-Along Notice” has the meaning set forth in Section 9.03(b).
“Drag-Along Sale” has the meaning set forth in Section 9.03(a).
“Dragging Member” has the meaning set forth in Section 9.03(a).
“Effective Date” has the meaning set forth in the Preamble.
“Electronic Transmission” means any form of communication not directly involving the physical transmission of paper, including the use of, or participation in, one or more electronic networks or databases (including one or more distributed electronic networks or databases), that creates a record that may be retained, retrieved and reviewed by a recipient thereof and that may be directly reproduced in paper form by such a recipient through an automated process.
“Equity Security” or “Equity Securities” means (a) any share of stock, partnership or joint venture interest, membership interest, limited liability company interest, beneficial interest in a trust, or similar security or any other interest in the equity of the Company or any Subsidiary, (b) any security, debt instrument, or other interest convertible (with or without consideration) into any of the foregoing securities or other equity interests or to which any warrant, option or other right to subscribe to or purchase any of the foregoing securities or other equity interest (including convertible securities) is attached and (c) any such warrant, option or right.
“Event of Dissociation” of a Member means (a) the Bankruptcy of such Member; (b) in the case of a Member who is acting as a Member by virtue of being a trustee of a trust, the termination of the trust (but not merely the substitution of a new trustee); (c) in the case of a Member that is an organization other than a corporation, the dissolution and commencement of winding up of the separate organization; (d) in the case of a Member that is a corporation, the filing of a certificate of dissolution, or its equivalent, for the
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corporation or the revocation of its charter; or (e) the case of a Member that is an estate, the distribution by the fiduciary of the estate’s Membership Interests.
“Excess Tax Distribution” has the meaning set forth in Section 6.02.
“Fair Market Value” of any asset as of any date means the purchase price that a willing buyer having all relevant knowledge would pay a willing seller for such asset in an arm’s length transaction, as determined by the Managing Member.
“Fiscal Year” means the calendar year, unless the Company is required to have a taxable year other than the calendar year, in which case Fiscal Year shall be the period that conforms to its taxable year.
“Good Reason” hereunder means the initial occurrence of any of the following without a Service Provider’s consent: (a) a material and adverse change in Service Provider’s duties, title or position; (b) a reduction of fifteen percent (15%) or more by the Company or an Affiliate of the Company in Service Provider’s base salary except for across-the-board salary reductions similarly affecting all similarly situated employees of the Company or an Affiliate of the Company; or (c) a material breach by the Company of its obligations under this Agreement; provided, however, Good Reason shall not exist unless Service Provider has provided notice of the existence of the Good Reason condition within ninety (90) days of the date Service Provider learns of the condition, the Company or an Affiliate of the Company fails to reasonably cure such condition within thirty (30) days after the Company’s or an Affiliate of the Company’s receipt of such notice, and the Termination Date occurs within thirty (30) days after the expiration of the cure period.
“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.
“Independent Third Party” means, with respect to any Member, any Person who is not an Affiliate of such Member.
“Jansen Entity” means w-euroconsultancy LLC, a Virginia limited liability company.
“Jansen Member” means W.F. Jansen, a natural person, born in Utrecht, the Netherlands, on 2 June 1990, and currently residing in Fredericksburg, VA 22407, the United States of America, at 8610 South Fork Court, Jansen Entity, or any Permitted Transferee who has become a Member, and “Jansen Members” means collectively, all of the foregoing Members.
“Joinder Agreement” means the joinder agreement in form and substance attached hereto as Exhibit A.
“Liquidator” has the meaning set forth in Section 11.03(a).
“Losses” has the meaning set forth in Section 8.03(a).
“Majority Member” has the meaning set forth in the preamble.
“Managing Member” means, initially, the Majority Member, or such other Member as may be designated or become the Managing Member pursuant to the terms of this Agreement.
“Minority Member” has the meaning set forth in the preamble.
“Member” means (a) the Majority Member and Minority Member and (b) each Person who is hereafter admitted as a Member in accordance with the terms of this Agreement and the Delaware Act. The Members shall constitute the “members” (as that term is defined in the Delaware Act) of the Company.
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“Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury Regulations Section 1.704-2(b)(4), substituting the term “Company” for the term “partnership” and the term “Member” for the term “partner” as the context requires.
“Member Nonrecourse Debt Minimum Gain” means an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if the Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i)(3).
“Member Nonrecourse Deduction” means “partner nonrecourse deduction” as defined in Treasury Regulations Section 1.704-2(i), substituting the term “Member” for the term “partner” as the context requires.
“Membership Interest” means an interest in the Company owned by a Member, including such Member’s right (a) to its distributive share of Net Income, Net Losses and other items of income, gain, loss and deduction of the Company; (b) to its distributive share of the assets of the Company; (c) to vote on, consent to or otherwise participate in any decision of the Members as provided in this Agreement; and (d) to any and all other benefits to which such Member may be entitled as provided in this Agreement or the Delaware Act. The Membership Interest of each Member shall be expressed as a percentage interest, which shall be determined in connection with the issuance of such Membership Interest and shall be as set forth in the Member Ledger. The percentage interest of each Member’s Membership Interest may be adjusted from time to time in connection with the issuance of additional Membership Interests or contribution of additional capital by a Member.
“Net Income” and “Net Loss” mean, for each Fiscal Year or other period specified in this Agreement, an amount equal to the Company’s taxable income or taxable loss, or particular items thereof, determined in accordance with Code Section 703(a) (where, for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or taxable loss), but with the following adjustments:
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“Non-Competition Period” has the meaning set forth in Section 4.07(a).
“Nonrecourse Deductions” has the meaning set forth in Treasury Regulations Section 1.704-2(b).
“Nonrecourse Liability” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(3).
“Non-Tax Distributions” has the meaning set forth in Section 6.02.
“Note” has the meaning set forth in Section 9.05(c).
“Officers” has the meaning set forth in Section 7.02.
“Permitted Transfer” means a Transfer of Membership Interests carried out pursuant to Section 9.02. “Permitted Transferee” means a recipient of a Permitted Transfer.
“Person” means an individual, corporation, partnership, joint venture, limited liability company, Governmental Authority, unincorporated organization, trust, association or other entity.
“Previous Agreement” has the meaning set forth in the Recitals.
“Prime Rate” means a variable interest rate equal to the prime rate as published from time to time in the “Money Rates” section of the Midwest Edition of The Wall Street Journal.
“Proposed Transferee” has the meaning set forth in Section 9.04(a).
“Regulatory Allocations” has the meaning set forth in Section 5.02(e).
“Representative” means, with respect to any Person, any and all directors, officers, employees, consultants, financial advisors, counsel, accountants and other agents of such Person.
“Repurchase Value” has the meaning set forth in Section 9.05(a).
“Revised Partnership Audit Rules” has the meaning set forth in Section 10.02(c).
“Sale Notice” has the meaning set forth in Section 9.04(b).
“Secretary of State” has the meaning set forth in the Recitals.
“Securities Act” means the Securities Act of 1933.
“Selling Member” has the meaning set forth in Section 9.04(a).
“Service Provider” means an employee, consultant or other service provider of the Company or an Affiliate of the Company who is a Member of the Company (or equity owner of a Member that is an entity if such equity owner controls the Member).
“Subsidiary” means, with respect to any Person, any other Person of which a majority of the outstanding shares or other equity interests having the power to vote for directors or comparable managers are owned, directly or indirectly, by the first Person.
“Tag-Along Notice” has the meaning set forth in Section 9.04(c)(i).
“Tag-Along Period” has the meaning set forth in Section 9.04(c)(i).
“Tag-Along Sale” has the meaning set forth in Section 9.04(a).
“Tag-Along Member” has the meaning set forth in Section 9.04(a).
“Tax Matters Representative” has the meaning set forth in Section 10.02(a).
“Taxing Authority” has the meaning set forth in Section 6.04(b).
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“Termination of Service” means the termination of a Service Provider’s provision of Services to the Company or an Affiliate of the Company, including a termination by the Company for Cause or without Cause, resignation by the Service Provider with Good Reason or without Good Reason. Notwithstanding the foregoing, the death or Disability of a Service Provider shall not be deemed a Termination of Service.
“Transfer” means to, directly or indirectly, sell, transfer, assign, pledge, encumber, hypothecate or similarly dispose of, either voluntarily or involuntarily, by operation of law or otherwise, or to enter into any contract, option or other arrangement or understanding with respect to the sale, transfer, assignment, pledge, encumbrance, hypothecation or similar disposition of, any Membership Interests owned by a Person or any interest (including a beneficial interest or any direct or indirect economic or voting interest) in any Membership Interests owned by a Person. “Transfer” when used as a noun shall have a correlative meaning. “Transferor” and “Transferee” mean a Person who makes or receives a Transfer, respectively.
“Treasury Regulations” means the final or temporary regulations issued by the United States Department of Treasury pursuant to its authority under the Code, and any successor regulations.
“Triggering Event” means, for purposes of any Transfer of a Membership Interest pursuant to Article IX (including the indirect Transfer of Membership Interests via a change in ownership of a Member that is an entity as specifically set forth in this definition), any one of the following events, each as of the date stated herein: (i) the divorce of a Member (or equity owner of a Member that is an entity if such equity owner controls the Member) if, in connection with such divorce, the Member (or equity owner thereof) is required to Transfer all or part of his or her Membership Interest (or membership interest in the Member, in the case of an equity owner of a Member) to his or her ex-spouse as part of a divorce decree; (ii) a Member takes any action (or omission), either directly or indirectly, that results in a breach of Section 4.07 or Section 4.08 hereof; (iii) a Member purports to Transfer Membership Interests in violation of Article IX, or such Transfer is made or to be made by operation of law or pursuant to a court order or decree.
“Unreturned Capital” means, as to each Member, an amount equal to (i) the aggregate amount of Capital Contributions made by such Member, less (ii) the aggregate amount of distributions to such Member under Section 6.01(a) and Section 11.03(c)(iii).
“Violation” means a breach or violation of, a default under, the acceleration of or the creation of any lien, pledge, security interest, claim, charge or other encumbrance of any nature whatsoever (with or without the giving of notice or the lapse of time, or both) pursuant to, any provision of any agreement, lease, license, contract, note, mortgage, indenture, arrangement or other obligation to which the Company is a party or by which any of its assets or properties is bound, or any law, rule, ordinance or regulation or any judgment, decree, order, award or governmental or non-governmental permit to which the Company is subject.
“Withholding Advances” has the meaning set forth in Section 6.04(b).
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Interest shall cease to accrue from the time the Member on whose behalf the Withholding Advance was made repays such Withholding Advance (and all accrued interest) by either method of repayment described above.
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provided, that (x) such Covered Person acted in good faith and in a manner believed by such Covered Person to be in, or not opposed to, the best interests of the Company and within the scope of such Covered Person’s authority conferred on them by the Company and, with respect to any criminal proceeding, had no reasonable cause to believe their conduct was unlawful, and (y) such Covered Person’s conduct did not constitute fraud, gross negligence, willful misconduct or a material breach or knowing violation of this Agreement by such Covered Person, in each case as determined by a final, nonappealable order of a court of competent jurisdiction. In connection with the foregoing, the termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Covered Person did not act in good faith or, with respect to any criminal proceeding, had reasonable cause to believe that such Covered Person’s conduct was unlawful, or that the Covered Person’s conduct constituted fraud, gross negligence, willful misconduct or a material breach or knowing violation of this Agreement.
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then in any such event, the Company shall have the right and option (but not the obligation) to purchase, and the applicable Member and its Affiliates shall be required to sell to the Company, all but not less than all of, the Membership Interests then held by them, at a price equal to the Repurchase Value of such Membership Interests; provided, however, that in the event that this Company option arises as a result of a (A) Triggering Event or (B) Termination of Service for Cause or without Good Reason, the Company may purchase the Membership Interests at question for the lesser of the Repurchase Value of such Membership Interests or the sum of such Member’s Capital Contributions. The Managing Member shall decide whether the Company will exercise its option pursuant to this Section. The Managing Member may exercise the foregoing call option by delivering written notice of such exercise to the applicable Member at any time during the period beginning upon the occurrence of the event and ending ninety (90) days after the occurrence of the event.
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If to the Company: | Tulp 24.1, LLC c/o Lendway, Inc. 5000 West 36th Street, Suite 220 Minneapolis, MN 55416 Attn: Elizabeth E. McShane, Email: |
with a copy to: | Faegre Drinker Biddle & Reath LLP 2200 Wells Fargo Center, 90 South Seventh Street |
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Minneapolis, Minnesota 55402, USA Attn: Joshua Colburn Email: | |
If to Majority Member: | Lendway, Inc. 5000 West 36th Street, Suite 220 Minneapolis, MN 55416 Attn: Elizabeth E. McShane, E-mail: |
with a copy to: | Faegre Drinker Biddle & Reath LLP 2200 Wells Fargo Center, 90 South Seventh Street Minneapolis, Minnesota 55402, USA Attn: Joshua Colburn E-mail: |
If to Minority Member: | Werner F. Jansen 8610 South Fork Court, Fredericksburg, VA 22407 E-mail: |
with a copy to: | Moss & Barnett, PA 150 South Fifth Street, Suite 1200 Attn: Craig Brandt E-mail: |
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[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| COMPANY: TULP 24.1, LLC By: /s/ Elizabeth E. McShane |
| MEMBERS: Lendway, Inc. By: /s/ Elizabeth E. McShane /s/ Werner F. Jansen |
[Signature Page to Second Amended and Restated Limited Liability Company Agreement]
Exhibit A
to Second Amended and Restated LLC Agreement
THIS JOINDER AGREEMENT to the Second Amended and Restated Limited Liability Company Agreement of Tulp 24.1, LLC, a Delaware limited liability company (the “Company”), dated as of September 15, 2025, as amended or restated from time to time, by and among the Members of the Company (the “Agreement”), is made and entered into as of ___________, by and between the Company and _____________ (“Holder”). Capitalized terms used herein but not otherwise defined shall have the meanings set forth in the Agreement.
WHEREAS, on the date hereof, Holder has acquired Membership Interests from the Company and the Agreement and the Company require Holder, as a holder of such Membership Interests, to become a party to the Agreement, and Holder agrees to do so in accordance with the terms hereof.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Joinder hereby agree as follows:
1.Agreement to be Bound. Holder hereby (a) acknowledges that it has received and reviewed a complete copy of the Agreement and (b) agrees that upon execution of this Joinder, it shall become a party to the Agreement and shall be fully bound by, and subject to, all of the covenants, terms and conditions of the Agreement as though an original party thereto and shall be deemed, and is hereby admitted as, a Member for all purposes thereof and entitled to all the rights incidental thereto.
2.Members Schedule. For purposes of the Members Schedule, the address of the Holder is as follows: ________________________________________________.
3.Governing Law. This Agreement and the rights of the parties hereunder shall be interpreted in accordance with the laws of the State of Delaware, and all rights and remedies shall be governed by such laws without regard to principles of conflicts of laws.
4.Counterparts. This Joinder may be executed in separate counterparts each of which shall be an original and all of which taken together shall constitute one and the same agreement.
5.Descriptive Headings. The descriptive headings of this Joinder are inserted for convenience only and do not constitute a part of this Joinder.
[signature page follows]
A-1
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.
| COMPANY: TULP 24.1, LLC |
| By: HOLDERS: Lendway, Inc. By: |
A-2