Common use of BHCA Matters Clause in Contracts

BHCA Matters. (a) Any Unit in the Company that is (i) held for its own account by a BHC Investor or by any affiliate (as defined in 12 U.S.C. Sec. 1841(k)) of such BHC Investor that is itself a BHC Investor (a “BHC Affiliate”), and (ii) determined in the aggregate to have voting rights with respect to a matter in excess of four and 99/100 percent (4.99%) (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of the voting rights of any Units pursuant to the applicable provisions of this Agreement (such determination to be made (A) at the time of admission of the BHC Investor or any of its BHC Affiliates to the Company, (B) at the time of admission of any additional Member to, or withdrawal of any Member from, the Company, or (C) at any other time when an adjustment is made to the Members’ proportionate ownership of Units or voting rights attributable to such Units (each, a “Recalculation Event”)), shall be treated as “Non-Voting Units” except as provided below. In the event that the Units of a BHC Investor and its BHC Affiliates are determined in the aggregate to include Non-Voting Units, such BHC Investor and its BHC Affiliates may by notice to the Company and the other Members allocate voting Units and Non-Voting Units among themselves in such percentages as they may elect. Upon any Recalculation Event, each Unit held by a BHC Investor and any of its BHC Affiliates shall be recalculated, and only that portion of Units held by such BHC Investor and any of its BHC Affiliates that is determined as of the date of such Recalculation Event to have voting rights in excess of four and 99/100 percent (4.99%) with respect to a matter (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of Units, excluding Non-Voting Units as of such date, shall be Non-Voting Units. (b) Except as provided in this Section 3.5(b), Non-Voting Units (whether or not subsequently Transferred in whole or in part to any other Person) shall not be entitled to vote or consent with respect to any matter under this Agreement or the Act, and shall be deemed to have waived any rights to vote or consent with respect to such matters. Non-Voting Units shall not be counted as Units of Members (either for purposes of determining the numerator or the denominator in any vote) for purposes of determining whether any vote required under this Agreement has been

BHCA Matters. (a) Any Unit If any BHC Partner, in the Company that is (iaggregate with any affiliate(s) held for its own account by a BHC Investor or by any affiliate (as defined in 12 U.S.C. Sec. §1841(k), has Capital Commitments, that at any time, comprise a percentage share greater than 4.99% (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of the aggregate Capital Commitments of all Limited Partners (excluding Affiliated Partners and any applicable Defaulting Limited Partners), such BHC Investor Partner shall be treated as representing only a 4.99% (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) percentage share for the purpose of determining whether any Majority (or other specified percentage) in Interest has been achieved for the purpose of any vote or consent required under this Agreement; provided that is itself a BHC Investor the foregoing restriction shall not apply to any vote or consent regarding: (a “BHC Affiliate”i) any proposal to dissolve or continue the business of the Partnership (but not on the selection of any successor General Partner), ; and (ii) determined matters as to which non-voting shares are permitted to vote pursuant to 12 CFR § 225.2(q)(2), as in effect from time to time. (b) Any Person that succeeds to any or all of the Interest of a BHC Partner shall be bound by this Section 2.04 to the same extent as such BHC Partner, unless (i) such Person received the Interest in a transaction or series of related transactions in which no transferee received an Interest representing more than 2% of aggregate Capital Commitments or (ii) such Person already held an Interest representing 50% or more of aggregate Capital Commitments prior to have voting rights with respect the Transfer from the BHC Partner. (c) Notwithstanding the foregoing, at the time of admission to the Partnership, any BHC Partner may request, subject to the General Partner’s sole discretion, not to be governed by subsection (a) and (b) of this Section 2.04 by providing a matter in excess of four and 99/100 percent (written request to the General Partner stating the basis for a conclusion that such BHC Partner’s acquiring or controlling more than 4.99%) % (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of the voting rights of any Units pursuant Interests held by the Limited Partners would not result in the Partnership becoming subject to the applicable provisions BHCA. (d) Notwithstanding any provision of this Agreement to the contrary, the General Partner shall terminate the Interest of any BHC Partner if such BHC Partner shall provide to the General Partner or the General Partner shall otherwise obtain an opinion of counsel (which counsel, whether outside or in-house, must be reasonably acceptable to the General Partner) to the effect that, by virtue of a change in law or circumstance, such determination BHC Partner’s continued ownership of its Interest would result in a material likelihood that such BHC Partner would be in violation of the BHCA (without regard to Section 4(k) thereof), including any regulation, written interpretation or directive of any governmental authority having regulatory authority over such BHC Partner, or any other law, rule, regulation or administrative practice to which such BHC Partner is subject, and that such violation could not be corrected or cured by other reasonable means; provided, however, that the General Partner shall only terminate such portion of such BHC Partner’s Interest to the extent necessary to be made in compliance with the foregoing. In full satisfaction of its terminated Interest in the Partnership, such BHC Partner shall be entitled to receive a distribution from the Partnership equal to the Partnership Interest Value of such BHC Partner’s terminated Interest, which amount the General Partner may, in its reasonable discretion, choose to distribute in cash, In-Kind Assets or Promissory Notes (or some combination thereof); provided that: (A) at the time of admission General Partner shall take commercially reasonable steps (consistent with the fiduciary duties of the BHC Investor or any of its BHC Affiliates General Partner to the CompanyPartnership and the Limited Partners) to liquidate such Investments, as it determines appropriate in its discretion, as may be necessary to satisfy such distribution obligation, and distribute to such BHC Partner the amount payable under this Section 2.04(d) within a reasonable time following the effective date of termination but, subject to the Act, in no event later than one hundred and twenty (120) days of such date; (B) at no approval of the time of admission Limited Partners or the LP Advisory Committee shall be required for the sale of any additional Member to, Investments or withdrawal the making of any Member from, the Company, or such distribution; (C) at the Partnership shall be permitted to and authorized to borrow as necessary to make any other time when an adjustment is made such cash payment to the Members’ proportionate ownership of Units or voting rights attributable to such Units (each, a “Recalculation Event”)), shall be treated as “Non-Voting Units” except as provided below. In the event that the Units of a terminated BHC Investor and its BHC Affiliates are determined in the aggregate to include Non-Voting Units, such BHC Investor and its BHC Affiliates may by notice Partner subject to the Company and the other Members allocate voting Units and Non-Voting Units among themselves limitations on leverage contained in such percentages as they may elect. Upon any Recalculation Event, each Unit held by a BHC Investor and any of its BHC Affiliates shall be recalculated, and only that portion of Units held by such BHC Investor and any of its BHC Affiliates that is determined as of the date of such Recalculation Event to have voting rights in excess of four and 99/100 percent (4.99%) with respect to a matter (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of Units, excluding Non-Voting Units as of such date, shall be Non-Voting Units. (b) Except as provided in this Section 3.5(b), Non-Voting Units (whether or not subsequently Transferred in whole or in part to any other Person) shall not be entitled to vote or consent with respect to any matter under this Agreement or the Act, and shall be deemed to have waived any rights to vote or consent with respect to such matters. Non-Voting Units shall not be counted as Units of Members (either for purposes of determining the numerator or the denominator in any vote) for purposes of determining whether any vote required under this Agreement has been2.02 hereof; and

BHCA Matters. (a) Any Unit in the Company that is (i) held for its own account by a BHC Investor or by any affiliate (as defined in 12 U.S.C. Sec. 1841(k)) of such BHC Investor that is itself a BHC Investor (a “BHC Affiliate”), and (ii) determined in the aggregate to have voting rights with respect to a matter in excess of four and 99/100 percent (4.99%) (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of the voting rights of any series or class of Units pursuant to the applicable provisions of this Agreement (such determination to be made (A) at the time of admission of the BHC Investor or any of its BHC Affiliates to the Company, (B) at the time of admission of any additional Member to, or withdrawal of any Member from, the Company, or (C) at any other time when an adjustment is made to the Members’ proportionate ownership of each series or class of Units or voting rights attributable to such Units (each, a “Recalculation Event”)), shall be treated as “Non-Voting Units” except as provided below. In the event that the Units of a BHC Investor and its BHC Affiliates are determined in the aggregate to include Non-Voting Units, such BHC Investor and its BHC Affiliates may by notice to the Company and the other Members allocate voting Units and Non-Voting Units among themselves in such percentages as they may elect. Upon any Recalculation Event, each Unit class or series of Units held by a BHC Investor and any of its BHC Affiliates shall be recalculated, and only that portion of each class or series of Units held by such BHC Investor and any of its BHC Affiliates that is determined as of the date of such Recalculation Event to have voting rights in excess of four and 99/100 percent (4.99%) with respect to a matter (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of such class or series of Units, excluding Non-Voting Units as of such date, shall be Non-Voting Units. (b) Except as provided in this Section 3.5(bparagraph (b), Non-Voting Units (whether or not subsequently Transferred in whole or in part to any other Person) shall not be entitled to vote or consent with respect to any matter under this Agreement or the Act, and shall be deemed to have waived any rights to vote or consent with respect to such matters. Non-Voting Units shall not be counted as Units of Members (either for purposes of determining the numerator or the denominator in any vote) for purposes of determining whether any vote required under this Agreement has beenbeen approved by the requisite percentage in interest of the Members; provided that a BHC Investor and its BHC Affiliates will be permitted to vote their Non-Voting Units on (i) any proposal to dissolve or continue the business of the Company (but not on the selection of any successor Managers, and each BHC Investor and its BHC Affiliates irrevocably waive their right to vote any Non-Voting Units on the selection of successor Managers under the Act, which waiver shall be binding upon such BHC Investor and its BHC Affiliates and any entities which succeed to their Units), and (ii) any matter that would significantly and adversely affect the rights, preferences or limited liability of such BHC Investor or its BHC Affiliates, such as modification of the terms of its Units in relation to the Units of other Members, the making of any distributions by the Company to any Member prior to making any required distributions to other Members, and other matters as to which non-voting shares are permitted to vote pursuant to 12 C.F.R. Sec. 225.2(q)(2), as in effect from time to time. Except as provided by the immediately preceding sentence, Non-Voting Units will not be counted (in either the numerator or the denominator of Units entitled to vote on any matter) as Units held by any Member for purposes of determining whether any vote or consent required has been approved under this Agreement or given by the requisite percentage in interest of the Members. Except as provided in this paragraph (b), Non-Voting Units will be identical in all respects to all other Units of the same class or series. (c) Notwithstanding the foregoing, a BHC Investor may elect not to be governed by this 0)(c) by giving written notice to the Company and each of the other Members stating that, as a result of a change in Law applicable to such BHC Investor or pursuant to such BHC Investor’s reliance on Section 4(k) of the BHCA or otherwise, the BHC Investor and its BHC Affiliates are not prohibited from acquiring or controlling more than four and 99/100 percent (4.99%) of the voting Units held by the Members (or such greater percentage as may be permitted by Section 4(c)(6) of the BHCA), in which case the amount of the Units held by such BHC Investor and its BHC Affiliates specified in such notice to be subject to this provision shall be voting Units. Any such election by a BHC Investor may be rescinded at any time by written notice to the Company and each of the other Members, provided that any such rescission shall be irrevocable. (d) The Company shall notify any BHC Investor as soon as reasonably practicable after a Recalculation Event of the voting rights of the Units of such BHC Investor and its BHC Affiliates, after giving effect to such event, as a percentage of the aggregate voting rights of Units of the Members pursuant to the applicable provisions of this Agreement.

BHCA Matters. (ai) Any Unit in the Company that is (i) held for its own account by a BHC Investor or by any affiliate (as defined in 12 U.S.C. Sec. 1841(k)) of such BHC Investor that is itself a BHC Investor (a “"BHC Affiliate”"), and (ii) determined in the aggregate to have voting rights with respect to a matter in excess of four and 99/100 percent (4.99%) (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of the voting rights of any Units pursuant to the applicable provisions of this Agreement (such determination to be made (A) at the time of admission of the BHC Investor or any of its BHC Affiliates to the Company, (B) at the time of admission of any additional Member to, or withdrawal of any Member from, the Company, or (C) at any other time when an adjustment is made to the Members’ ' proportionate ownership of Units or voting rights attributable to such Units (each, a “"Recalculation Event”")), shall be treated as “"Non-Voting Units” " except as provided below. In the event that the Units of a BHC Investor and its BHC Affiliates are determined in the aggregate to include Non-Voting Units, such BHC Investor and its BHC Affiliates may by notice to the Company and the other Members allocate voting Units and Non-Voting Units among themselves in such percentages as they may elect. Upon any Recalculation Event, each Unit held by a BHC Investor and any of its BHC Affiliates shall be recalculated, and only that portion of Units held by such BHC Investor and any of its BHC Affiliates that is determined as of the date of such Recalculation Event to have voting rights in excess of four and 99/100 percent (4.99%) with respect to a matter (or such greater percentage as may be permitted under Section 4(c)(6) of the BHCA) of Units, excluding Non-Voting Units as of such date, shall be Non-Voting Units. (bj) Except as provided in this Section 3.5(bparagraph (b), Non-Voting Units (whether or not subsequently Transferred in whole or in part to any other Person) shall not be entitled to vote or consent with respect to any matter under this Agreement or the Act, and shall be deemed to have waived any rights to vote or consent with respect to such matters. Non-Voting Units shall not be counted as Units of Members (either for purposes of determining the numerator or the denominator in any vote) for purposes of determining whether any vote required under this Agreement has beenbeen approved by the requisite percentage in interest of the Members; provided that a BHC Investor and its BHC Affiliates will be permitted to vote their Non-Voting Units on (i) any proposal to dissolve or continue the business of the Company (but not on the selection of any successor Board Members, and each BHC Investor and its BHC Affiliates irrevocably waive their right to vote any Non-Voting Units on the selection of successor Board Members under the Act, which waiver shall be binding upon such BHC Investor and its BHC Affiliates and any entities which succeed to their Units), and (ii) any matter that would significantly and adversely affect the rights, preferences or limited liability of such BHC Investor or its BHC Affiliates, such as modification of the terms of its Units in relation to the Units of other Members, the making of any distributions by the Company to any Member prior to making any required distributions to other Members, and other matters as to which non-voting shares are permitted to vote pursuant to 12 C.F.R. Sec. 225.2(q)(2), as in effect from time to time. Except as provided by the immediately preceding sentence, Non-Voting Units will not be counted (in either the numerator or the denominator of Units entitled to vote on any matter) as Units held by any Member for purposes of determining whether any vote or consent required has been approved under this Agreement or given by the requisite percentage in interest of the Members. Except as provided in this paragraph (b), Non-Voting Units will be identical in all respects to all other Units of the same class or series. (k) Notwithstanding the foregoing, a BHC Investor may elect not to be governed by this Section 3.5(c) by giving written notice to the Company and each of the other Members stating that, as a result of a change in Law applicable to such BHC Investor or pursuant to such BHC Investor's reliance on Section 4(k) of the BHCA or otherwise, the BHC Investor and its BHC Affiliates are not prohibited from acquiring or controlling more than four and 99/100 percent (4.99%) of the voting Units held by the Members (or such greater percentage as may be permitted by Section 4(c)(6) of the BHCA), in which case the amount of the Units held by such BHC Investor and its BHC Affiliates specified in such notice to be subject to this provision shall be voting Units. Any such election by a BHC Investor may be rescinded at any time by written notice to the Company and each of the other Members, provided that any such rescission shall be irrevocable. (l) The Company shall notify any BHC Investor as soon as reasonably practicable after a Recalculation Event of the voting rights of the Units of such BHC Investor and its BHC Affiliates, after giving effect to such event, as a percentage of the aggregate voting rights of Units of the Members pursuant to the applicable provisions of this Agreement.