48-236-105 - Limitations on distribution.
48-236-105. Limitations on distribution.
(a) Rule. No distribution may be made by an LLC if, after giving effect to the distribution:
(1) The LLC would not be able to pay its debts as they became due in the normal course of business; or
(2) The LLC's total assets would be less than the sum of its total liabilities plus, unless the articles or an operating agreement permit otherwise, the amount that would be needed, if the LLC were to be dissolved at the time of the distribution, to satisfy the preferential rights upon dissolution of members whose preferential rights are superior to the rights of members receiving the distribution and excluding liabilities for which the recourse of creditors is limited to specified property of the LLC, except that the fair value of property that is subject to a liability for which the recourse of creditors is limited shall be included in the assets of the LLC only to the extent that the fair value of the property exceeds that liability.
(b) Determination. The LLC may base a determination that a distribution is not prohibited under subsection (a) either on:
(1) Financial statements prepared on the basis of accounting practices and principles that are reasonable in the circumstances; or
(2) A fair valuation or other method that is reasonable in the circumstances.
(c) General Measuring Date. The effect of a distribution under subsection (a) is measured as of:
(1) The date the distribution is authorized if the payment occurs within four (4) months after the date of authorization; or
(2) The date the payment is made if it occurs more than four (4) months after the date of authorization.
(d) Special Measuring Date. If indebtedness is issued as a distribution, each payment of principal or interest on the indebtedness is treated as a distribution, the effect of which is measured on the date the payment is actually made.
(e) Status of LLC Indebtedness for Distributions. An LLC's indebtedness to a member incurred by reason of a distribution made in accordance with this section is at parity with the LLC's indebtedness to its general unsecured creditors, except to the extent subordinated by agreement and except to the extent provided otherwise by § 48-245-1101(a).
[Acts 1994, ch. 868, § 1.]