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EXHIBIT 10.13
LIMITED LIABILITY COMPANY AGREEMENT
OF
PBO PROPERTY FUND, L.L.C.
Dated as of May 20, 1998
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TABLE OF CONTENTS
PAGE
1. Definitions............................................................. 2
2. Organization............................................................12
2.1 Formation.........................................................12
2.2 Fiscal Year.......................................................12
2.3 Name; Principal Office............................................12
2.4 Registered Office and Agent in Delaware...........................12
2.5 Term; Investment Period...........................................12
2.6 Purposes..........................................................13
2.7 Powers............................................................14
3. The Managing Member.....................................................16
3.1 Management........................................................16
3.2 Reliance by Third Parties.........................................17
3.3 Liability of Members; Indemnification.............................18
3.4 Other Activities of the Managing Member; Other Funds;
Investments Outside the Company; Allocation of
Investments; Conflicts of Interests...............................20
3.5 Investments.......................................................21
4. Investments in Projects.................................................21
5. Capital Contributions; Minimum Commitment; Voluntary Loans..............21
5.1 Capital Contributions and Capital Commitments of the Members......21
5.2 Voluntary Loans...................................................23
5.3 Failure to Contribute Capital.....................................23
6. Capital Accounts; Allocations; Distributions............................24
6.1 Capital Accounts..................................................24
6.2 Adjustments.......................................................24
6.3 Amounts and Priority of Distributions.............................25
6.4 [Reserved.].......................................................28
6.5 Overriding Provision..............................................28
6.6 [Reserved.].......................................................28
6.7 Distributions of Securities.......................................28
6.8 Negative Capital Accounts.........................................28
6.9 Section 754 Election..............................................28
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6.10 Withdrawal of Capital.............................................29
6.11 Allocation of Net Income and Net Loss.............................29
6.12 Regulatory Allocations............................................31
7. Other Members..........................................................32
7.1 No Participation in Management, etc...............................32
7.2 No Priority, etc..................................................32
7.3 Limitation of Liability of Members................................32
8. The Manager............................................................33
8.1 Appointment of Manager............................................33
8.2 Asset Management Fee..............................................33
8.3 Property Management and Services Fees.............................34
9. Advisory Board and Membership Meetings.................................34
10. Expenses...............................................................35
11. Determination by the Managing Member of Certain Matters................36
12. Investment Committee...................................................36
13. Limitation on Assignability of Members' Interests......................36
14. Death, Incompetency, Bankruptcy, Dissolution or Removal of Members.....38
14.1 Bankruptcy or Dissolution of the Managing Member.................38
14.2 Death, Incompetency, Bankruptcy, Dissolution or Withdrawal
of Member........................................................38
15. Dissolution and Termination of the Company.............................38
15.1 Dissolution......................................................38
15.2 Liquidation; Distribution of Proceeds............................39
15.3 Distributions in Cash or in Kind.................................40
15.4 Time for Liquidation, Etc........................................40
15.5 Termination......................................................40
15.6 Managing Member Not Personally Liable for Return of
Capital Contributions............................................40
16. Accounting and Reports.................................................40
17. Books and Records......................................................41
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18. Agreement Binding Upon Successors and Assigns..........................42
19. Amendment of the Agreement.............................................42
20. Notices................................................................43
21. Execution of Other Documents; Power of Attorney........................43
22. Governing Law..........................................................44
23. Consents...............................................................44
24. Miscellaneous..........................................................44
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LIMITED LIABILITY COMPANY
AGREEMENT OF PBO PROPERTY FUND, L.L.C.
This LIMITED LIABILITY COMPANY AGREEMENT (this "Agreement") of PBO PROPERTY
FUND, L.L.C. (the "Company") is made as of the 20th day of May, 1998 by and
among PBO PROPERTY CAPITAL, L.L.C., a Delaware limited liability company having
an office c/o The Pioneer Group, Inc., 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attn.: Xxxxxxx X. Xxxxxx (the "Managing Member"); BANC ONE CAPITAL
HOLDINGS CORPORATION, an Ohio corporation having an office at 000 Xxxx Xxx
Xxxxxx, 00xx Xxxxx, Xxxxxxxx, Xxxx 00000, Attn: Xxxx Xxxxxx (the "Special
Member"); and the other members shown on SCHEDULE A annexed hereto and make a
part hereof (the Managing Member, the Special Member and such other members are
hereinafter referred to, collectively, as the "Members", which term shall also
include any Person who is hereafter admitted as a member of the Company pursuant
to this Agreement and shall exclude any Person who hereafter shall cease to be a
member of the Company pursuant to any provision of this Agreement).
W I T N E S S E T H :
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WHEREAS, CEENIS Property Fund, L.P. ("CEENIS") was formed on May 28, 1996,
as a limited partnership under the laws of the State of Delaware; and
WHEREAS, CEENIS was formed in order to invest, through wholly-owned or
partly-owned subsidiaries, in real estate in Central and Eastern Europe and in
certain countries which were formerly a part of the Union of Soviet Socialist
Republics (the "Former USSR"); and
WHEREAS, CEENIS and CEENIS Equities, L.P. entered into a Finance Agreement
dated as of June 24, 1996 (the "Original Finance Agreement") with the Overseas
Private Investment Corporation ("OPIC"), an agency of the United States of
America, pursuant to which OPIC agreed, subject to certain terms and conditions,
to lend up to $160,000,000 to CEENIS for financing CEENIS' investments and other
activities; and
WHEREAS, on March 3, 1998, the Members formed the Company as a limited
liability company under the Limited Liability Company Act of the State of
Delaware (the "Act") in order to acquire all of the partnership interests in
CEENIS; and
WHEREAS, the Members intend, immediately after such acquisition, to
dissolve and liquidate CEENIS, to cause all of CEENIS' assets to be distributed
in kind to the Company, to cause the Company to assume all of CEENIS'
liabilities and obligations under (i) the Original Finance Agreement and (ii)
the Loan, the Note, and the other Financing Documents (each as defined in the
Original Finance Agreement), and to cause the Company to continue the business
of CEENIS; and
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WHEREAS, the Members intend, immediately after the execution and delivery
of this Agreement, to cause the Company to enter into an Amended and Restated
Finance Agreement with OPIC, the Holding Company and the Managing Member (the
"Finance Agreement"), pursuant to which the Original Finance Agreement shall be
amended and restated in its entirety;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following meanings:
"ACT" shall mean the Limited Liability Company Act of the State of
Delaware, as amended, and any successor to such statute.
"ACCELERATION DATE" shall have the meaning set forth in Section 6.3(a).
"ADJUSTED CAPITAL ACCOUNT" means, with respect to any Member, such Member's
Capital Account balance, increased by such Member's share of Company Minimum
Gain and Member Minimum Gain.
"ADJUSTMENT DATE" shall mean (a) the last Business Day of any Fiscal Year,
(b) the day before the date any Capital Contribution or distribution is made or
deemed to be made, or (c) any other date determined by the Managing Member as
appropriate for a closing of the Company's books.
"ADVISERS ACT" shall mean the Investment Advisers Act of 1940, as amended.
"ADVISORY BOARD" shall have the meaning set forth in Section 9(a).
"AFFILIATE" shall mean, with respect to any Person, any other Person who
directly or indirectly controls, is controlled by, or is under common control
with such Person. As used herein, the term "control" shall mean the power to
direct the management and policies of a Person, whether through the ownership of
voting securities, by contract or otherwise.
"AGREEMENT" shall mean this Limited Liability Company Agreement of the
Company, as amended, modified, supplemented or restated from time to time in
accordance herewith and with the Finance Agreement.
"ASSET MANAGEMENT FEE" shall have the meaning set forth in Section 8.2.
"AVAILABLE CAPITAL" (i) shall have the meaning set forth in the Finance
Agreement during the Loan Period and (ii) at all other times, shall mean the
Capital Commitments together with the principal amount of any loan commitment
pursuant to a Financing Arrangement, in each case from time to time outstanding.
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"BALTIC REPUBLICS" shall mean Lithuania, Latvia and Estonia.
"BASIS" shall mean, with respect to any right or asset (including any
securities) held by the Company, the basis thereof as determined pursuant to the
Code, except that Basis shall not include any adjustment to basis that may
otherwise result from an election by the Company under Section 754 of the Code.
"BUSINESS DAY" shall mean any day other than a Saturday, Sunday or day on
which commercial banks are authorized by law to close in New York, New York.
"CAPITAL ACCOUNT" shall have the meaning set forth in Section 6.1.
"CAPITAL COMMITMENT" shall mean, with respect to any Member, the amount set
forth opposite the name of such Member on SCHEDULE A hereto, as the same may be
amended in accordance herewith and with the Finance Agreement.
"CAPITAL CONTRIBUTION" shall mean, with respect to any Member, the amount
of capital contributed by such Member to the Company pursuant to Section 5.1 and
the other provisions of this Agreement.
"CASH FLOW" shall mean the amount expressed in United States dollars
obtained by multiplying: (i) in the case of (a) the Company, the Holding Company
or a Portfolio Holding Company, 100%, and (b) a Portfolio Company, the
percentage equal to the share (determined in accordance with the Charter
Documents (as defined in the Finance Agreement) and other governing instruments
of such Portfolio Company) of the applicable Portfolio Holding Company in the
aggregate amount of all cash and cash equivalent items (as such items are more
fully described in clause (ii) below) generated, held by and/or available to
such Portfolio Company; by (ii) the aggregate amount of all cash and cash
equivalent items (including Interim Securities) generated, held by and/or
available to the Company, the Holding Company, such Portfolio Holding Company or
such Portfolio Company, as the case may be, and including, in each case to the
extent applicable, the applicable percentage determined pursuant to clause
(i)(a) or (i)(b) above in all cash and cash equivalent items derived from any
sale, disposition, financing or refinancing of Securities or Interim Securities,
and from other (x) financing activities (such as proceeds from the Equity
Commitments (as defined in the Finance Agreement) and from the Loan and other
permitted Indebtedness), (y) operating activities and (z) investing activities
(including distributions from any Portfolio Company to a Portfolio Holding
Company, from a Portfolio Holding Company to the Holding Company, and from the
Holding Company to the Company).
"CASH RETENTION FUND" shall mean an account of the Holding Company (as
hereinafter defined) to be established and maintained with the Collateral Agent
in accordance with the Retention Agreement to secure the payment of all amounts
owing to OPIC under the Finance Agreement, the Notes and the other Financing
Documents.
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"CENTRAL AND EASTERN EUROPE" shall mean Albania, Bulgaria, Croatia, the
Czech Republic, Hungary, Poland, Romania, Slovakia, Slovenia and the Baltic
Republics, as well as such other countries in Central and Eastern Europe as the
Managing Member deems appropriate, in its sole discretion, for investment by the
Company, PROVIDED that during the Loan Period, the Managing Member has obtained
OPIC's consent to investment by the Company in such other countries.
"CODE" shall mean the Internal Revenue Code of 1986, as amended.
"COLLATERAL AGENT" shall have the meaning set forth in the Finance
Agreement.
"COMPANY" shall mean PBO Property Fund, L.L.C., a Delaware limited
liability company.
"COMPANY MINIMUM GAIN" means "partnership minimum gain," as defined in ss.
1.704-2(b)(2) of the Treasury Regulations, and shall be determined in accordance
with ss. 1.704-2(d) of the Treasury Regulations.
"CONSENT NOTICE" shall have the meaning set forth in the Finance Agreement.
"CONTROLLED PORTFOLIO COMPANY" shall have the meaning set forth in the
Finance Agreement.
"COVERED PERSON" shall mean any Member or a direct or indirect Affiliate of
a Member, and any of their respective shareholders, controlling Persons,
officers, directors, members, partners, employees or agents.
"CUMULATIVE HISTORIC TAX LIABILITY" shall have the meaning set forth in
Section 6.3.
"DEDICATED AMOUNT" shall mean the amount on deposit in the Dedicated Debt
Service Reserve Sub-Account that has been irrevocably dedicated to payment of
the Loan Balance.
"DEDICATED DEBT SERVICE RESERVE SUB-ACCOUNT" shall mean an account of the
Holding Company to be established and maintained with the Collateral Agent in
accordance with the Retention Agreement to secure the payment of all amounts
owing to OPIC under the Finance Agreement, the Notes and the other Financing
Documents and into which is deposited the Dedicated Amount.
"DEFERRED GUARANTY FEE" shall have the meaning set forth in the Finance
Agreement.
"DEPRECIATION" means, with respect to any fiscal year, an amount equal to
the depreciation, amortization or other cost recovery deduction allowable with
respect to an asset for
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Federal income tax purposes, except that if the Gross Asset Value of the asset
differs from its adjusted tax basis, Depreciation shall be determined in
accordance with the methods used for Federal income tax purposes and shall equal
the amount that bears the same ratio to the Gross Asset Value of such asset as
the depreciation, amortization or other cost recovery deduction computed for
Federal income tax purposes with respect to such asset bears to the adjusted
Federal income tax basis of such asset; PROVIDED, HOWEVER, that if any such
asset that is depreciable or amortizable has an adjusted federal income tax
basis of zero, the rate of Depreciation shall be as determined by the Managing
Member.
"DISABLING CONDUCT" shall mean conduct that constitutes willful misfeasance
or gross negligence in the conduct of the duties of the Person referred to.
"DISTRIBUTABLE CASH" shall mean all cash available to the Company for
distribution to the Members after (i) provision for such working capital,
reserves and other needs (including, without limitation, the reserves referred
to in Section 6.4) as the Managing Member, in its sole discretion, shall deem
appropriate, (ii) payment of any Asset Management Fees payable to the Managing
Member and the Fixed Guaranty Fees (as defined in the Finance Agreement) payable
to OPIC and (iii) payment of the current obligations and operating expenses of
the Company (including, without limitation, payments under Section 7.3(b)(iv)(A)
of the Finance Agreement, payment of all other amounts due, payable and/or
reimbursable to OPIC, the Collateral Agents or Sub-Agents, the Paying Agent and
any other Person under the Financing Documents and payments of the Loan Balance
(as defined in the Finance Agreement) under Section 7.3(b)(vi) of the Finance
Agreement) (excluding, however, the Deferred Guaranty Fees, which shall be
payable in accordance with the applicable provisions of Section 6.3(a)(x) and
(y)).
"DRAWDOWNS" shall mean the Capital Contributions made to the Company
pursuant to Section 5.1 from time to time by the Members pursuant to Notices of
Drawdown.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"FACT FINDER" shall mean a court of competent jurisdiction or a mutually
acceptable arbitration panel to which the parties have agreed to submit a
dispute, controversy or claim and to which the relevant facts and circumstances
may be disclosed in accordance with such court's or panel's governing rules and
procedures.
"FINANCE AGREEMENT" shall have the meaning set forth in the Recitals
hereto.
"FINANCING ARRANGEMENTS" shall have the meaning set forth in Section
2.7(c).
"FINANCING DOCUMENTS" shall mean, collectively, the Finance Agreement, the
Notes, the Retention Agreement, the Indemnity Agreement, the other Security
Documents, each Consent Notice, the Project Documents, the Funding Documents and
all other agreements or instruments pursuant to which the Loan or any portion
thereof is made to the Company.
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"FIRST PREFERENTIAL RETURN" shall have the meaning set forth in
Section 6.3.
"FISCAL YEAR" shall mean the fiscal year of the Company, as determined
pursuant to Section 2.2.
"FIXED GUARANTY FEE" shall have the meaning set forth in the Finance
Agreement.
"FUNDING DOCUMENTS" shall have the meaning set forth in the Finance
Agreement.
"GROSS ASSET VALUE" means, with respect to any asset, the asset's adjusted
basis for Federal income tax purposes, except that (i) the Gross Asset Value of
any asset contributed to the Company shall be its gross fair market value (as
determined by the Managing Member) at the time such asset is contributed or
deemed contributed for purposes of computing Capital Accounts, (ii) upon a
contribution of money or other property to the Company by a new or existing
Member as consideration for an interest in the Company and upon a distribution
of money or other property to a retiring or continuing Member as consideration
for an interest in the Company, the Gross Asset Value of all of the assets of
the Company shall be adjusted to equal their respective gross fair market values
(as determined by the Managing Member), to the extent such adjustment is
determined by the Managing Member to be necessary or appropriate to reflect the
Members' relative interests in the Company, (iii) the Gross Asset Value of any
asset distributed in kind to any Member shall be the gross fair market value of
such asset (as determined by the Managing Member) on the date of such
distribution, and (iv) the Gross Asset Value of any asset determined pursuant to
clauses (i) or (ii) above shall thereafter be adjusted from time to time by the
Depreciation taken into account with respect to such asset for purposes of
determining Net Income or Net Loss.
"HOLDING COMPANY" shall have the meaning set forth in the Finance
Agreement.
"HOLDING COMPANY CASH FLOW" shall have the meaning set forth in the Finance
Agreement.
"HOST COUNTRY" shall have the meaning set forth in the Finance Agreement.
"INDEBTEDNESS" shall have the meaning set forth in the Finance Agreement.
"INDEMNITY AGREEMENT" shall have the meaning set forth in the Finance
Agreement.
"INTERIM LOCAL SECURITIES" shall have the meaning set forth in the Finance
Agreement.
"INTERIM SECURITIES" shall have the meaning set forth in the Finance
Agreement.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
amended.
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"INVESTMENT OBJECTIVES" shall have the meaning set forth in the Finance
Agreement.
"INVESTMENT PERIOD" shall have the meaning set forth in Section 2.5(b).
"INVESTOR MEMBERS" shall mean all Persons who shall, from time to time, be
Members of the Company, other than the Managing Member, the Special Member and
Pioneer Group.
"LOAN" shall have the meaning set forth in the Finance Agreement.
"LOAN BALANCE" shall mean the aggregate unpaid principal amount due under
all Notes outstanding plus accrued but unpaid interest thereon (including all
compounded interest in accordance with the Funding Documents) through the date
of determination.
"LOAN PERIOD" shall mean the period commencing on the date hereof and
ending when all principal, interest, expenses, costs, contributions,
reimbursements, indemnifications and fees (other than the Deferred Guaranty Fee)
payable to OPIC under the Finance Agreement have been paid in full.
"LOAN RATE" shall mean ten percent (10%) per annum.
"MANAGER" shall mean a Person which is an Affiliate of either or both of
Banc One Capital Holdings Corporation and/or Pioneer Real Estate Advisors, Inc.,
is comparable to the Managing Member in experience and ability and has adequate
personnel to provide high-quality asset management services to the Company, and
is engaged by the Managing Member to provide such asset management services.
"MANAGING MEMBER" shall mean PBO Property Capital, L.L.C., a Delaware
limited liability company, and its successors.
"MARKETABLE SECURITIES" shall mean securities that are (i) traded on a
recognized securities exchange, (ii) reported through NASDAQ, (iii) otherwise
traded over-the-counter or purchased and sold in transactions effected pursuant
to Rule 144A under the Securities Act and reported on PORTAL or SITUS, as the
case may be, and, in each case, are determined by the Managing Member to be
marketable at a price approximating their Value within a reasonable period of
time and are not subject to restrictions on transfer as a result of applicable
contract provisions or the provisions of the Securities Act (otherwise than as
contemplated by Rule 144A) or regulations thereunder.
"MEMBERS" shall mean the Persons designated as members of the Company
listed on SCHEDULE A hereto, as amended from time to time in accordance with the
terms of this Agreement.
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"MEMBER MINIMUM GAIN" means "partner nonrecourse debt minimum gain," as
defined in ss. 1.704-2(i)(2) of the Treasury Regulations, and shall be
determined in accordance with ss. 1.704-2(i)(3) of the Treasury Regulations.
"MEMBER NONRECOURSE DEBT" means "partner nonrecourse debt," as defined in
ss. 1.704-2(b)(4) of the Treasury Regulations.
"MEMBER NONRECOURSE DEDUCTIONS" means "Member nonrecourse deductions," as
defined in ss. 1.704-2(i)(1) of the Treasury Regulations, and shall be
determined in accordance with ss. 1.704-2(i)(2) of the Treasury Regulations.
"NASDAQ" shall mean the National Association of Securities Dealers
Automated Quotation System.
"NET INCOME" OR "NET LOSS" means, with respect to any fiscal year, the
taxable income or loss of the Company as determined for federal income tax
purposes, with the following adjustments:
(i) Such taxable income or loss shall be increased by the amount, if
any, of tax-exempt income received or accrued by the Company;
(ii) Such taxable income or loss shall be reduced by the amount, if
any, of all expenditures of the Company described in Section 705(a)(2)(B) of the
Code, including expenditures treated as described therein under ss.
1.704(b)(2)(iv)(i) of the Treasury Regulations;
(iii) If the Gross Asset Value of any asset is adjusted pursuant to
clause (ii) or (iii) of the definition of Gross Asset Value, the amount of such
adjustment shall be taken into account, immediately prior to the event giving
rise to such adjustment, as gain or loss from the disposition of such asset for
purposes of computing Net Income or Net Loss;
(iv) Gain or loss resulting from any disposition of any asset with
respect to which gain or loss is recognized for Federal income tax purposes
shall be computed by reference to the Gross Asset Value of the asset disposed
of, notwithstanding that such Gross Asset Value differs from the adjusted tax
basis of such asset; and
(v) In lieu of the depreciation, amortization, or other cost recovery
deductions taken into account in computing such taxable income or loss, there
shall be taken into account Depreciation for such fiscal year.
"NEW INDEPENDENT STATES" or "NIS" shall mean Armenia, Belarus, Georgia,
Kazakhstan, Kyrgyzstan, Moldova, the Russian Federation, Tajikistan,
Turkmenistan, Ukraine and Uzbekistan, as well as such other countries in the
former USSR as the Managing Member deems appropriate, in its sole discretion,
for investment by the Company, PROVIDED that during the Loan Period, the
Managing Member has obtained OPIC's consent to investment by the Company in such
other countries.
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"NON-OPERATING RESERVES" shall mean the aggregate cash and cash equivalent
reserves maintained by or on behalf of the Company, the Holding Company, the
Portfolio Holding Companies and the Controlled Portfolio Companies (i) for the
purpose of (a) paying non-recurring Permitted Expenses, (b) maintenance of, and
capital improvements on, real property owned by Controlled Portfolio Companies,
and (c) during the Investment Period only and thereafter to the extent permitted
by Section 7.10(c)(ii) of the Finance Agreement, investing in Portfolio
Securities, and (ii) that, pending expenditure, are invested in Interim
Securities or Permitted Portfolio Company Investments.
"NONRECOURSE DEDUCTIONS" has the meaning set forth in ss. 1.704-2(b)(1) of
the Treasury Regulations. The amount of Nonrecourse Deductions for any year
equals the excess, if any, of the net increase in the amount of Company Minimum
Gain during such year over the aggregate amount of any distributions during such
year of proceeds of a Nonrecourse Liability that are allocable to an increase in
Company Minimum Gain, determined in accordance with ss. 1.704-2(c) of the
Treasury Regulations.
"NONRECOURSE LIABILITY" has the meaning set forth in ss. 1.704-2(b)(3) of
the Treasury Regulations.
"NOTE" or "NOTES" shall have the meaning set forth in the Finance
Agreement.
"NOTICE OF DRAWDOWN" shall have the meaning set forth in Section 5.1(b)(i).
"OPERATING RESERVES" shall mean the aggregate cash and cash equivalent
reserves maintained by or on behalf of the Company, the Holding Company, the
Portfolio Holding Companies and the Controlled Portfolio Companies (i) for the
purpose of paying quantifiable Permitted Expenses (other than non-recurring
expenses) reasonably expected to be payable within the immediately following six
(6) months and (ii) that, pending expenditure, are invested in Interim
Securities or Permitted Portfolio Company Investments.
"OPIC" shall mean the Overseas Private Investment Corporation, an agency of
the U.S. Government.
"PERCENTAGE INTEREST" shall mean, with respect to each Member, the amount
of such Member's Capital Commitment divided by the Aggregate Capital Commitments
of all Members.
"PERIOD" shall mean the period commencing on the date of this Agreement and
ending on the next Adjustment Date. All succeeding Periods shall commence on the
day after an Adjustment Date and end on the next Adjustment Date.
"PERMITTED EXPENSES" shall have the meaning provided in EXHIBIT A.
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"PERMITTED PORTFOLIO COMPANY INVESTMENT" shall mean Interim Securities and
Interim Local Securities held by a Controlled Portfolio Company in accordance
with the terms of the Finance Agreement.
"PERMITTED USE" means (i) to purchase Securities (as defined in the Finance
Agreement) and apply the proceeds thereof to achieve the purposes of the Company
set forth in Section 2.6 hereof, (ii) to pay the costs and expenses incurred to
achieve such purposes, (iii) to pay Permitted Expenses and (iv) to establish and
maintain Operating Reserves and Non-Operating Reserves, in each case in
accordance herewith and with the Finance Agreement.
"PERSON" shall mean a corporation, an association, a limited liability
company, a partnership, a joint venture, an estate, a trust, any other entity,
whether constituting a separate legal entity or otherwise, or an individual.
"PIONEER GROUP" shall mean The Pioneer Group, Inc.
"PORTFOLIO COMPANY" shall have the meaning set forth in the Finance
Agreement.
"PORTFOLIO COMPANY CASH FLOW" shall have the meaning set forth in the
Finance Agreement. "PORTFOLIO HOLDING COMPANY" shall have the meaning set forth
in the Finance Agreement.
"PORTFOLIO HOLDING COMPANY CASH FLOW" shall have the meaning set forth in
the Finance Agreement.
"PORTFOLIO HOLDING COMPANY SECURITIES" shall have the meaning set forth in
the Finance Agreement.
"PORTFOLIO INVESTMENT" shall mean an investment in a Project.
"PORTFOLIO SECURITIES" shall have the meaning set forth in the Finance
Agreement.
"PROJECT" shall mean an interest in real estate and/or related assets held
by, or to be held by, a Portfolio Company in accordance with this Agreement and
the Finance Agreement.
"PROJECT DOCUMENTS" shall have the meaning set forth in the Finance
Agreement.
"PROPERTY MANAGEMENT FEES" shall mean fees payable in accordance with the
limitations set forth on EXHIBIT A for providing management services in respect
of the real estate interests owned, leased or otherwise controlled by a
Portfolio Company.
"QUALIFYING BANK" shall mean (a) during the Loan Period, a bank or trust
company (i) located in the United States: (w) organized as a banking association
or corporation under the laws of the United States, any state thereof or the
District of Columbia; (x) subject to
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supervision or examination by federal, state or District of Columbia banking
authorities; (y) with capital and surplus of not less than $250,000,000; and (z)
the long-term unsecured debt securities of which are rated at least "A" by
Xxxxx'x Investor Services, Inc. or "A" by Standard and Poor's Rating Group or
are otherwise acceptable to OPIC or (ii)(x) a branch, located in a Host Country,
of a Qualifying Bank satisfying the requirements of clause (a)(i)(w) through (z)
of this definition of Qualifying Bank, which branch (1) is subject to
supervision or examination by such Host Country's banking authorities and (2)
holds all licenses, permissions, authorizations and consents necessary to enable
it to engage in the business of banking in such Host Country; (y) a bank located
in a Host Country (1) organized as a banking association or corporation under
the laws of such Host Country, (2) subject to supervision or examination by such
Host Country's banking authorities, (3) holding all licenses, permissions,
authorizations and consents necessary to enable it to engage in the business of
banking in such Host Country, and (4) whose long-term unsecured debt obligations
are rated at least equivalent to investment grade by a widely accepted
internationally recognized rating agency; or (z) any other bank located in the
relevant Host Country and reasonably approved by OPIC and (b) following the Loan
Period, a bank selected by the Managing Member; provided, that, subject to the
approval of the Independent Advisory Board Committee as contemplated herein and
in Section 6.8(d) of the Finance Agreement, at all times Bank One, N.A. and any
other banking affiliate of Banc One Corporation that (1) satisfies clauses
(a)(i)(w), (x), (y) and (z) above and (2) has executed and delivered to OPIC
such Security Documents as OPIC may require, shall be deemed to be a Qualifying
Bank.
"REMAINING CAPITAL COMMITMENT" shall mean, in respect of any Member, the
amount of such Member's Capital Commitment, as adjusted as contemplated hereby,
determined at any date, which has not been contributed as a Capital
Contribution, PROVIDED that if such date is after delivery of a Notice of
Drawdown but before the related Drawdown, the amount specified in such Notice of
Drawdown (as the same may be amended by a subsequent Notice of Drawdown related
thereto) shall not be included in any Member's Remaining Capital Commitment
unless such Drawdown is abandoned.
"RETENTION AGREEMENT" shall have the meaning set forth in the Finance
Agreement.
"SECOND PREFERENTIAL RETURN" shall have the meaning set forth in
Section 6.3.
"SECURITIES" shall have the meaning set forth in the Finance Agreement.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SECURITY DOCUMENTS" shall have the meaning set forth in the Finance
Agreement.
"SPECIAL MEMBER" shall have the meaning set forth in the preamble hereof.
"SPECIAL TAX DISTRIBUTION" shall have the meaning set forth in Section 6.3.
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"SUBSCRIPTION AGREEMENT" shall mean the subscription agreements of the
Members relating to their interests in the Company.
"TAX ADVANCES" shall have the meaning set forth in Section 6.3.
"TAX MATTERS MEMBER" shall mean the Managing Member.
"TAX RATE" shall have the meaning set forth in Section 6.3.
"TERM" shall have the meaning set forth in Section 2.5.
"TREASURY REGULATIONS" shall mean the rules and regulations promulgated
under the Code by the U.S. Department of the Treasury.
"VALUE" shall mean the value determined in accordance with Section 11.
2. ORGANIZATION.
2.1 FORMATION. The Members have formed the Company as a limited
liability company pursuant to the Act.
2.2 FISCAL YEAR. The fiscal year of the Company shall end on the 31st
day of December in each year. The Company shall have the same fiscal year for
income tax and for financial and accounting purposes.
2.3 NAME; PRINCIPAL OFFICE. The name of the Company shall be "PBO
Property Fund, L.L.C." and its business shall be conducted under that name or
any variation thereof that the Managing Member deems appropriate. The principal
office of the Company shall be at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
or at such other place as the Managing Member may from time to time determine.
2.4 REGISTERED OFFICE AND AGENT IN DELAWARE. The Company's registered
office shall be c/o CT Corporation System, Corporation Trust Center, 0000 Xxxxxx
Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The registered agent of the Company for
service of process within the State of Delaware shall be c/o CT Corporation
System, Corporation Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000. The registered office and the registered agent of the Company may be
changed by the Managing Member from time to time in accordance with the then
applicable provisions of the Act and any other applicable laws.
2.5 TERM; INVESTMENT PERIOD.
(a) The term of the Company shall commence upon the filing of the
Company's Certificate of Formation with the Secretary of State of the State of
Delaware and shall continue until December 31, 2008 or such earlier date as the
Company is dissolved in
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accordance with the provisions of this Agreement; provided that the Term may be
extended for up to three successive terms of one year each at the direction of
the Managing Member.
(b) The investment period (the "Investment Period") shall
commence on the date hereof and shall extend until December 31, 2004.
2.6 PURPOSES. The Company is organized for the purpose of (x) investing in
Persons directly or indirectly organized by it (which Persons may include
third-party joint venture partners or other equity holders) to acquire and
develop light industrial, manufacturing, commercial, office, distribution,
warehouse, hotel and retail real property and related assets in Central and
Eastern Europe, and in the New Independent States and (y) indirectly, through
the ownership of interests in such Persons, developing, holding, managing,
operating, leasing, mortgaging, altering, repairing and selling or otherwise
disposing of such real estate and related assets or interests therein, all in
accordance with the terms and conditions of this Agreement and any Financing
Arrangement, including the Finance Agreement. Subject to the terms and
conditions of the Finance Agreement, such real estate investments may include,
without limitation, (i) undivided interests in real estate, (ii) leasehold
interests in real estate, (iii) beneficial interests in trusts that directly or
indirectly own or lease real estate or interests therein, (iv) secured debt for
which a direct or indirect interest in real estate is a substantial part of the
security, and which is issued by a Portfolio Company or a Portfolio Holding
Company, (v) unsecured debt issued by a Portfolio Company or a Portfolio Holding
Company and (vi) other direct or indirect interests or real estate, and/or the
income or revenues therefrom, however denominated and whether such interests are
equity interests or serve as security for, or are payable on account of,
indebtedness. Subject and as an incident to the foregoing, the Company is
authorized:
(a) to participate in, influence, advise, or otherwise affect or
direct the management of Persons in which the Company has an interest, direct or
indirect, and to take such other action as shall be necessary, advisable,
convenient or incidental in connection with such Persons;
(b) to lend funds or properties of the Company, either with or
without security;
(c) to execute, deliver and perform all contracts and other
undertakings, and engage in all activities and transactions, that the Managing
Member believes are necessary, advisable, convenient or incidental in carrying
out the foregoing purposes of this Section 2.6, including, without limitation:
(i) to purchase, transfer, mortgage, pledge or acquire, in
any manner, and exercise all rights, powers, privileges and other
incidents of ownership or possession with respect to, its property;
(ii) to register or qualify the Company under any applicable
laws of any jurisdiction or to obtain exemptions under those laws, if
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registration, qualification or exemption is deemed necessary
or advisable by the Managing Member;
(iii) to acquire securities on the basis of investment
representations and/or subject to transfer restrictions;
(iv) to borrow or raise money and secure the payment of any
obligations of the Company by mortgage upon, or pledge of, or grant of
other appropriate lien or security interests in or on, all or part of the
property of the Company, including to obtain the loan contemplated by the
Finance Agreement and to provide in accordance therewith the mortgages,
pledges, liens and other security interests provided therein; and
(v) to dispose of the assets of the Company.
2.7 POWERS.
(a) In furtherance of its purposes, but subject to all of the
provisions of this Agreement and the Finance Agreement, the Company shall have
the power and is hereby authorized to do such things and engage in such
activities related to the foregoing as may be necessary, convenient, advisable
or incidental with respect to the conduct of the business of the Company all as
determined by the Managing Member in its sole discretion (but subject to the
further provisions of this Agreement), and have and exercise all of the powers
and rights conferred upon limited liability companies formed pursuant to the
Act, including, without limitation, the power and authority to:
(i) acquire, hold, manage, own, lease, operate, maintain,
finance, mortgage, encumber, improve, grant options with respect to, sell,
transfer, convey, assign, exchange, pledge or otherwise dispose of all or
any part of the Company's direct or indirect interests in the Holding
Company, the Portfolio Holding Companies or the Portfolio Companies or any
other investments made or other property held by the Company;
(ii) execute, deliver and perform in furtherance of any or
all of the purposes of the Company, the Finance Agreement and any other
contracts or agreements contemplated thereby or specifically described
therein, and all other Financing Arrangements, and any deed, lease,
easement, covenant, restriction, mortgage, deed of trust, real estate lien
note, promissory note, xxxx of sale, contract, pledge, assignment, trust
agreement, escrow agreement, financing statement or other document or
instrument purporting to convey, encumber or otherwise affect any or all of
the real or personal property, tangible or intangible, owned by, or for the
benefit of, the Company, including all Company accounts in Qualifying Banks
and other banks and relating to all of the Company's right, title and
interest in and to material contracts, consents, approvals, licenses,
permits and similar instruments;
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(iii) prepay in whole or in part, refinance, recast,
increase, modify or extend any liabilities affecting the Company
or any property owned by, or for the benefit of, the Company, and
in connection therewith, execute any extensions, renewals,
modifications or reinstatements of indebtedness or encumbrances
or security therefor;
(iv) distribute funds to the Members by way of cash, income,
return of capital or otherwise, all in accordance with the
provisions of this Agreement and the Finance Agreement, and
perform all matters in furtherance of the objectives of the
Company and this Agreement;
(v) establish, have, maintain or close one or more offices
of the Company and, in connection therewith, rent or acquire
office space and engage personnel;
(vi) open, maintain and close bank and brokerage accounts,
including the power to draw checks or other orders for the
payment of moneys and invest such funds as are temporarily not
otherwise required for use in the Company's business;
(vii) bring and defend actions and proceedings at law or in
equity or before any governmental, administrative or other
regulatory agency, body or commission;
(viii) hire consultants, custodians, attorneys, accountants
and such other agents and employees of the Company (and designate
any such agents and employees as officers with titles) as it may
deem necessary or advisable, and to authorize each such agent and
employee to act for and on behalf of the Company;
(ix) make all elections (including, without limitation, all
elections for federal, state and local tax purposes whether in
the U.S. or foreign jurisdictions), investigations, evaluations
and decisions, binding the Company thereby, that may, in the sole
judgment of the Managing Member, be necessary or appropriate for
the acquisition, holding or disposition of investments by the
Company;
(x) enter into, perform and carry out contracts and
agreements of every kind necessary, advisable, convenient or
incidental to the accomplishment of the Company's business, and
take or omit to take such other action in connection with the
Company's business as may, in the sole judgment of the Managing
Member, be necessary or desirable to further the purposes of the
Company; and
(xi) carry on any other activities and to take any other
action necessary to, in connection with, or incidental to any of
the foregoing or the Company's business.
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(b) Subject to the limitations of applicable Financing Arrangements, and
pursuant to an agreement of merger or consolidation, the Company may merge with,
or consolidate into, one or more Delaware limited liability companies or other
business entities (as defined in Section 18-209(a) of the Act) upon the approval
of the Managing Member in its sole discretion. Any agreement of merger or
consolidation of the Company entered into in accordance with the provisions of
this Agreement and applicable Financing Arrangements and approved in accordance
with Section 18-209(b) of the Act may, as provided in Section 18-209(f) of the
Act, (i) effect any amendment to this Agreement or (ii) effect the adoption of a
new limited liability company agreement for the Company if it is the surviving
or resulting limited liability company in the merger or consolidation; provided,
that no such amendment shall be so effected if it would, under Article 19
hereof, require any consent, and no provision shall be included in any such new
agreement if such provision would, under Article 19 hereof, require any consent
if it were being incorporated in this Agreement by amendment, unless in each
case the requisite consent or consents shall have been obtained.
(c) Notwithstanding anything in this Agreement to the contrary, the
Managing Member, without any further authorization by or on behalf of any other
Member, may on behalf of the Company enter into such financing arrangements as
may be approved from time to time by the Managing Member, including the Finance
Agreement ("Financing Arrangements"), and fully repay or otherwise satisfy debt
(including principal and interest) owed to third party creditors, whether on the
maturity date thereof or subsequent or earlier thereto, refinance that debt and
pay all fees, expenses, costs, reimbursements, contributions and
indemnifications contemplated by the Financing Arrangements. Financing
Arrangements may consist of senior or subordinated debt (which may be secured or
unsecured) or any other financing arrangement agreed to by the Managing Member
in its sole discretion. The parties hereto acknowledge that the Managing Member
may on behalf of the Company agree in any Financing Arrangement to additions,
restrictions or exceptions to the provisions of this Agreement and to limit or
restrict the activities of the Company.
3. THE MANAGING MEMBER.
3.1 MANAGEMENT. (a) GENERAL. The management, control and operation of and
the determination of policy with respect to the Company and its affairs shall be
vested exclusively in the Managing Member (acting directly or through its duly
appointed agents), which is authorized and empowered on behalf and in the name
of the Company, subject to the terms of this Agreement, to carry out any and all
of the purposes of the Company and to perform all acts and enter into and
perform all contracts and other undertakings that it may, in its sole
discretion, deem necessary, advisable, convenient or incidental thereto. Without
limiting the foregoing, the Managing Member may exercise on behalf of the
Company (and may delegate to a Manager) all of the powers set forth in Sections
2.6, 2.7 and 3.2(b). No Member other than the Managing Member shall have any
part in the management of the Company, or any right to act on behalf of the
Company in any manner. The Managing Member shall engage in no activity other
than the ownership of its interest in the Company and activities undertaken in
its capacity as Managing Member of the Company.
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(b) AUTHORITY OF THE MANAGING MEMBER. All decisions made or
actions taken by the Managing Member with respect to the Company's business and
affairs in accordance with this Agreement shall be binding upon the Company and
all of the Members, and the ratification or consent of the Members as to any
decision or action taken by the Managing Member shall not be required. The
Managing Member shall have the full right and authority to execute, deliver and
amend any and all agreements, contracts, documents and instruments relating to
the business and affairs of the Company, including the Financing Documents,
which pursuant to Section 2.7(c), may contain additions, restrictions or
exceptions to the provisions of this Agreement and may limit or restrict the
activities of the Company, without any further act, vote or approval of the
Members, or any other Person, and any Person dealing with the Company may rely
upon the Managing Member's execution and delivery of any agreement, contract,
document or instrument as the act and deed of the Company, without the necessity
for further inquiry.
(c) MEETINGS. Meetings of the Members shall be held as the
Managing Member deems necessary. The Managing Member shall give each other
Member and OPIC notice of such meeting not less than 15 days prior thereto
indicating the date, time and place of such meeting. The costs and expenses
incurred by the Company in connection with any such meeting shall be Permitted
Expenses, but only to the extent that such expenses are payable in accordance
with EXHIBIT A.
3.2 RELIANCE BY THIRD PARTIES.
(a) In dealing with the Managing Member and its duly appointed
agents (including the Manager), no Person shall be required to inquire as to its
authority to bind the Company.
(b) Without limiting the generality of the foregoing, the
Managing Member shall have full power and authority:
(i) to engage independent agents, attorneys, accountants,
custodians and others as the Managing Member deems necessary, advisable or
convenient for the affairs of the Company or its subsidiaries;
(ii) to receive, buy, sell, exchange, trade and otherwise
deal in and with securities, real estate and other property of the Company,
to establish Persons to hold the assets of the Company and to enter into
agreements with others with respect to those activities;
(iii) to open, conduct, maintain and close accounts with
brokers and property management companies on behalf of the Company and to
pay the customary fees and charges applicable to transactions in those
accounts;
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(iv) to open, maintain and close accounts in the United
States and abroad, including margin accounts, with brokers and banks and to
draw checks and other orders for the payment of money by the Company;
(v) to file, on behalf of the Company, all tax and other
returns relating to the Company required under applicable law;
(vi) to cause the Company to purchase or bear the cost of
any insurance covering the potential liabilities of the Managing Member and
any other Covered Person arising out of such Person's actions under this
Agreement;
(vii) to cause the Company to purchase or bear the cost of
any insurance covering the potential liabilities of any Person serving as
director, officer or employee of an entity in which the Company has an
investment or of which the Company is a creditor;
(viii) to cause the Company to purchase or bear the cost of
any insurance required to be purchased or maintained by the Company under
the terms of the Finance Agreement;
(ix) to commence, defend or settle litigation or submit to
arbitration any claim or cause of action that pertains to the Company or
any assets of the Company;
(x) to enter into, make and perform contracts, agreements
and other undertakings and to do that which is advisable for, or as may be
incidental to, the conduct of the business of the Company, including,
without limiting the generality of the foregoing, contracts, agreements,
undertakings and transactions with any Member or with any other Person
having any business, financial or other relationship with any Member or
Members;
(xi) to borrow money and lend money on behalf of the
Company.
3.3 LIABILITY OF MEMBERS; INDEMNIFICATION.
(a) No Covered Person shall be liable, responsible or accountable
in damages or otherwise to the other Members or to the Company for any acts
performed within the scope of the authority conferred on it by this Agreement,
or for its failure or refusal to perform any acts except those expressly
required by or pursuant to the terms of this Agreement, or for any loss in
connection with the affairs of the Company, the Holding Company, any Portfolio
Holding Company, any Portfolio Company or any other Person in which the Company
has a direct or indirect interest; provided that such Covered Person acted in
good faith and in a manner reasonably believed to be in or not opposed to the
best interests of the Company, the Holding Company, such Portfolio Holding
Company, such Portfolio Company or such
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Person, as the case may be, and such Covered Person is not guilty of
Disabling Conduct and has not violated in any material respect any of the
provisions of this Agreement. To the extent permitted by law, the Company
shall (to the extent of the assets of the Company) indemnify, defend and
hold harmless each Covered Person from and against all losses, expenses,
claims or liabilities, including, without limitation, reasonable attorneys'
fees and expenses, arising out of or in connection with any action taken or
omitted to be taken by such Covered Person in respect of the affairs of the
Company, the Holding Company, any Portfolio Holding Company, any Portfolio
Company or any other Person in which the Company has a direct or indirect
interest; provided, that such Covered Person acted in good faith and in a
manner reasonably believed to be in or not opposed to the best interests of
one or more Financing Credit Parties, and such action or omission by such
indemnified Covered Person does not constitute Disabling Conduct or a
violation in any material respect of any of the provisions of this
Agreement. Notwithstanding the foregoing, indemnification by a Portfolio
Company (other than a Controlled Portfolio Company) of any agent of a
Portfolio Company shall be governed by the applicable provisions set forth
in the agreement between such agent and such Portfolio Company; provided
that such agreement is on arm's-length terms. The termination of any
action, suit or proceeding by settlement shall not, of itself, create a
presumption that a Covered Person did not act in good faith or was guilty
of Disabling Conduct or a violation of any provision of this Agreement. The
Company shall advance to any Covered Person reasonable attorneys' fees and
other costs and expenses incurred in connection with the defense of any
action or proceeding which arises out of conduct which is the subject of
the indemnification provided hereunder; provided that the Managing Member
hereby agrees, and each other Covered Person shall agree as a condition to
receiving such advances, that in the event such Covered Person receives any
such advance, such Covered Person shall reimburse the Company for such
advance if it shall be judicially determined, in a final, non-appealable
judgment, that such Covered Person was not entitled to indemnification
under this Section 3.3.
(b) A Covered Person shall incur no liability in acting upon any
signature or writing believed by it to be genuine, and may rely on a
certificate signed by an executive officer of any Person in order to
ascertain any fact with respect to such Person or within such Person's
knowledge and may in good faith rely on an opinion of counsel selected by
such Covered Person with respect to legal matters unless such Covered
Person engaged in Disabling Conduct. Each Covered Person may act directly
or through its agents or attorneys. Each Covered Person may consult with
counsel, appraisers, engineers, accountants and other skilled Persons of
its choosing, and shall not be liable for anything done, suffered or
omitted in good faith in reliance upon the advice of any of such Persons
unless such Covered Person engaged in Disabling Conduct. No Covered Person
shall be liable for the return to any Member of all or any portion of any
Member's Capital Account or Capital Contribution unless such Covered Person
engaged in Disabling Conduct.
(c) To the extent that, at law or in equity, a Covered Person has
duties (including fiduciary duties) and liabilities relating thereto to the
Company or to any Member, a Covered Person acting under this Agreement
shall not be liable to the Company or to any Member for its good faith
reliance on the provisions of this Agreement. The provisions of this
Agreement, to the extent that they restrict the duties and liabilities of a
Covered Person
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otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Covered Person.
(d) Whenever in this Agreement the Managing Member is permitted or required
to make a decision (i) in its "discretion" or under grant of similar authority
or latitude, the Managing Member shall be entitled to consider such interests
and factors as it desires, or (ii) in its "good faith" or under another express
standard, the Managing 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.
3.4 OTHER ACTIVITIES OF THE MANAGING MEMBER; OTHER FUNDS; INVESTMENTS
OUTSIDE THE COMPANY; ALLOCATION OF INVESTMENTS; CONFLICTS OF INTERESTS.
(a) CERTAIN OTHER RELATIONSHIPS. Except as otherwise provided in the
Finance Agreement, any of the Managing Member's Affiliates may organize or
sponsor any new private investment fund having primary investment objectives in
Central and Eastern Europe or the NIS substantially the same as those of the
Company in which event any opportunity to invest in companies, Projects or real
estate shall be allocated between the Company (and its Portfolio Companies) and
the other funds by the Managing Member and such Affiliates in their sole
discretion. The Company and the Holding Company shall not, and the Company, the
Holding Company and the Managing Member shall not permit any Portfolio Holding
Company or Controlled Portfolio Company (as defined in the Finance Agreement)
to, (1) invest in any Project, Portfolio Holding Company or Portfolio Company
located in or organized and operating in Poland (individually, a "Polish
Investment") in which Pioneer Poland Real Estate Fund, S.A. ("Pioneer Poland")
holds an equity or debt interest, (2) hold an equity or debt interest in any
Polish Investment in which Pioneer Poland is or will be investing, or (3) sell
or transfer to, or acquire from, Pioneer Poland, directly or indirectly, any
equity or debt interest in any Project, Portfolio Holding Company or Portfolio
Company, unless (A) in all cases, the Company has delivered to OPIC true and
complete copies of approvals thereof from (x) the Independent Advisory Board
Committee in accordance with Section 6.8(d) of the Finance Agreement and Section
9(a) hereof and (y) the committee of Pioneer Poland with the authority and
functions most nearly comparable to the Independent Advisory Board Committee,
and (B) in addition, but solely in the case of clause (3) above, the Company has
obtained OPIC's approval of such sale, transfer or acquisition, which approval
may be withheld in OPIC's sole discretion.
(b) CERTAIN CONTRACTS. Subject to the other provisions of this Agreement
(including Section 9) and the Finance Agreement, the Managing Member may cause
the Company, the Holding Company, the Portfolio Holding Companies and the
Controlled Portfolio Companies to enter into, and Portfolio Companies that are
not Controlled Portfolio Companies may enter into, contracts and transactions
with the Managing Member, the Special Member or any of their respective
Affiliates, PROVIDED that all of the terms of each such contract and transaction
are fair and reasonable to the Company, the Holding Company, the Portfolio
Holding Companies and the Controlled Portfolio Companies based on commercially
reasonable standards. To the extent that it is not reasonably possible to
determine whether any agreement in question is fair and reasonable because a
reasonable number of comparable agreements do not
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exist in the country in question, such determination shall be made based on
comparable agreements for similar assets in the United States.
(c) POTENTIAL CONFLICTS OF INTEREST. While the Managing Member intends
to use reasonable efforts to avoid situations involving conflicts of
interest, each Member acknowledges that there may be situations in which
the interests of the Company, in a Portfolio Company or otherwise, may
conflict with the interests of Covered Persons. Each Member agrees that the
activities of any Covered Person, provided such activities are in
compliance with this Article 3, will not, in any case or in the aggregate,
be deemed a breach of this Agreement or any duty owed by any such Person to
the Company or to any Member.
3.5 INVESTMENTS. Each Member agrees that, subject to the provisions of this
Agreement, a Covered Person (other than the Managing Member) may engage in other
business activities or possess interests in other business activities of every
kind and description, independently or with others, and that neither the Company
nor any other Member shall have the right to participate therein or in the
profits or income derived therefrom.
4. INVESTMENTS IN PROJECTS. The Company shall make investments in
accordance with the good faith business judgment of the Managing Member, subject
to the terms and conditions of this Agreement (including, without limitation,
Article 12) and any Financing Arrangements. Subject to the terms of any
Financing Arrangement, no Capital Commitments shall be called to fund new
Projects following the termination of the Investment Period. For purposes of the
foregoing, a "new Project" shall mean any Project in which the Company then has
no direct or indirect interest and which has not been approved by the Investment
Committee.
5. CAPITAL CONTRIBUTIONS; MINIMUM COMMITMENT; VOLUNTARY LOANS.
5.1 CAPITAL CONTRIBUTIONS AND CAPITAL COMMITMENTS OF THE MEMBERS.
Subject to Section 2.7(c) and the Finance Agreement:
(a) Each Member shall make Capital Contributions to the Company
in an aggregate amount up to the Capital Commitment set forth opposite its name
on Schedule A attached hereto. Each of the Members is, on the date hereof,
making a Capital Contribution in the amount set forth opposite its name on such
Schedule A.
(b) The Capital Contributions of each Member, the amount of which
is determined pursuant to the terms of Section 5.l(b)(iii) below, shall be paid
all at once or in separate Drawdowns at the sole discretion of the Managing
Member, subject to the following terms and conditions:
(i) The Managing Member shall provide each Member with a
written notice (the "Notice of Drawdown") at least ten Business Days prior to
the date of Drawdown. Each Notice of Drawdown shall contain a brief description
of the uses to which the proceeds of the related Drawdown are to be applied.
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(ii) Each Drawdown shall be applied only to pay Permitted
Expenses of the Company or applied to a Permitted Use. If the actual Capital
Contribution to be paid by such Member changes prior to the making of a
Portfolio Investment, the Managing Member shall give prompt notice to such
Member, who shall pay any additional Capital Contribution thereby required by
the date specified in such notice. Such payment date shall be at least two
Business Days after the date such notice was sent by facsimile.
(iii) Each Member shall pay to the Company the Capital
Contribution of such Member in cash or other immediately available funds
denominated in U.S. dollars on or before the date that is one Business Day prior
to the applicable date of Drawdown specified in the Notice of Drawdown. The
required Capital Contribution of each Member in respect of each Notice of
Drawdown shall be equal to the lesser of: (A) such Member's Remaining Capital
Commitment and (B) such Member's pro rata share (based on the respective
Percentage Interests of the Members) of the aggregate amount stated in such
Notice of Drawdown.
(iv) Notwithstanding anything to the contrary contained
herein, a Drawdown may be made (and a Notice of Drawdown may be delivered) only
by the Managing Member named herein or a Person designated by such Managing
Member, and no other Person, including any creditor or any group of any or all
of the creditors of the Company, or any Person acting on behalf of any such
creditor or group of creditors, or any successor to the Managing Member's
interest (or to interests in the Managing Member) by virtue of the exercise by
any such creditor or group of creditors of its or their rights under any
Financing Arrangement (or, notwithstanding anything to the contrary contained in
the foregoing, the Managing Member or its designee, if one or more interests in
the Managing Member shall have been assigned, or the voting rights with respect
to such interests assumed, by any creditor or any group of creditors, by virtue
of the exercise by such creditor or group of creditors of its or their rights
under any Financing Arrangement), shall have any right to initiate a Drawdown
(it being understood and agreed that Capital Commitments of the Members are not
and shall not, except as set forth in the following proviso, be deemed an asset
or right of the Company); provided, however, that in the event the Company has
made an investment in a Project with respect to which construction has commenced
but has not been completed, OPIC may, in the exercise of its rights, powers and
remedies under the Finance Agreement and any other Financing Documents and upon
the occurrence and during the continuance of an Event of Default (as defined in
the Finance Agreement), issue, or cause the Managing Member to issue, one or
more Notices of Drawdown for the purpose of causing all of the Members,
including, without limitation, the Managing Member, Pioneer Group and the
Special Member, to make Capital Contributions to the Company, in accordance with
this Agreement, in an aggregate amount equal to fifty percent (50%) of the
amount contemporaneously to be loaned by OPIC to the Company, to achieve
substantial completion of the applicable Project in accordance with the plans
and specifications submitted by the Company to OPIC in connection with OPIC's
approval of the applicable Project.
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5.2 VOLUNTARY LOANS. If at any time the Capital Contributions and other
cash on hand of the Company shall be insufficient for the cash needs of the
Company in the sole discretion of the Managing Member, then the Managing Member,
the Special Member and/or Pioneer Group may, but shall not be obligated, to make
a loan or loans to the Company ("Voluntary Loans") to meet the cash needs of the
Company (including, without limitation, amounts payable under Section 6.15(b) of
the Finance Agreement) in such amounts and in such relative proportions as such
Members may agree or absent such agreement, in proportion to their respective
Percentage Interests. In addition, any amounts paid in accordance with Section 2
of the Indemnity Agreement in respect of Permitted Expenses shall be deemed to
be Voluntary Loans to the Company made on the date advanced by or on behalf of
the applicable Member. Each such Voluntary Loan shall bear interest at the Loan
Rate and shall be payable in accordance with Section 6.3.
5.3 FAILURE TO CONTRIBUTE CAPITAL.
(a) In the event any Member fails to make a Capital Contribution to
the Company when due, the defaulting Member shall be responsible to pay to the
Company, in addition to the amount of such Capital Contribution, interest
thereon at a rate (the "Default Rate") equal to the lesser of (x) the Loan Rate
plus 3% and (y) the highest rate permitted by law, from the date such Capital
Contribution was due until the earlier of (a) the date such Capital Contribution
is made (or deemed made as hereinafter provided) by the defaulting Member and
(b) the date the defaulting Member's interest in the Company is sold as
hereinafter provided. In addition, if such failure continues for 10 days after
notice from the Managing Member, the Managing Member, in its sole discretion,
may (i) subject to the applicable provisions of the Finance Agreement, cause the
defaulting Member's interest in the Company to be sold at a price equal to
66-2/3% of its fair market value (as determined by the Managing Member in its
reasonable discretion), without taking into account any amount deemed to have
been contributed to the Company by the defaulting Member as hereinafter
provided, (ii) advance (and/or permit one or more of the non-defaulting Members
to advance) the amount as to which the defaulting Member is in default, (iii)
enforce the defaulting Member's obligation to make the Capital Contribution in
question and the interest accrued thereon by appropriate legal proceedings, (iv)
deprive the defaulting Member of its right to exercise any voting rights which
it may have under this Agreement, and (v) pursue any other remedies it deems
advisable (including, without limitation, the recovery from the defaulting
Member of all costs and expenses of the Company associated with the default).
Such rights and remedies shall not be exclusive. Any advances made by the
Managing Member or the non-defaulting Members as provided in clause (ii) above
shall be treated as special capital contributions to the Company ("Default
Contributions"), which Default Contributions shall be treated as having been
used by the Company to make a loan ("Default Loan") to the defaulting Member.
Any Default Loan deemed made to the defaulting Member shall be payable on demand
and shall bear interest at the Default Rate, and the proceeds of such Default
Loan shall be deemed to have been used by the defaulting Member to make the
Capital Contribution as to which it is in default (provided that the defaulting
Member shall nonetheless be deemed to remain in default and subject to the
remedies provided for herein). All Default Contributions shall earn a return
(the "Default Contribution
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Return") equal to the Default Rate and shall, together with such return, be
repaid only out of amounts recovered by the Company from the defaulting Member
or offset against amounts otherwise distributable to the defaulting Member as
hereinafter provided. All distributions which would otherwise be payable to the
defaulting Member under this Agreement shall instead be paid as follows: (1)
first, to the Company to pay any costs and expenses resulting from such Member's
default, (2) second, to the Company to pay accrued and unpaid interest on, and
then to reduce the outstanding principal balance of, any Default Loan deemed
made to such defaulting Member, (3) third, to the Company to pay interest
accrued and unpaid under the first sentence of this Section 5.3(a); (4) fourth,
to the Company to pay the Capital Contribution in default (if the same is not
deemed to have been made out of the proceeds of a Default Loan or paid by the
purchaser of the defaulting Member's interest in the Company as hereinafter
provided); and (5) fifth, to the defaulting Member; provided that all payments
made pursuant to this sentence shall nevertheless be deemed for all purposes of
this Agreement to have been distributed to the defaulting Member. All amounts
paid to the Company as provided in clause (2) of the preceding sentence shall be
used by the Company, first, to pay the accrued and unpaid Default Contribution
Return on the related Default Contribution(s), and then to return such Default
Contribution(s), to the Managing Member or the non-defaulting Members, as the
case may be (with any such payments to the non-defaulting Members to be made pro
rata in proportion to their respective Default Contributions). In no event shall
the exercise of any of the remedies provided for in this Section 5.3(a) release
a defaulting Member from its continuing obligation to make Capital Contributions
required under this Agreement.
(b) If the Managing Member shall cause the defaulting Member's interest
in the Company to be sold as provided in Section 5.3(a), the purchaser shall be
required to (x) pay the Capital Contribution in default and (y) assume the
obligation of the defaulting Member to make its remaining Capital Contributions.
The proceeds of any such sale, together with the capital contribution made by
the purchaser as provided under clause (x) above, shall be applied: first, to
the expenses of sale and any other costs and expenses resulting from such
Member's default; then, in the manner and priority set forth in clauses (2)
through (4) of Section 5.3(a); and then, to pay the defaulting Member for its
interest in the Company. Any amounts applied as provided in clause (2) of
Section 5.3(a) shall be applied as provided in the penultimate sentence of
Section 5.3(a).
6. CAPITAL ACCOUNTS; ALLOCATIONS; DISTRIBUTIONS.
6.1 CAPITAL ACCOUNTS. There shall be established on the books and
records of the Company a capital account (a "Capital Account") for each Member.
6.2 ADJUSTMENTS. As of the last day of each Period, the balance in
each Member's Capital Account shall be adjusted by (A) INCREASING such balance
by such Member's (i) allocable share of Net Income (allocated in accordance with
Section 6.11) and (ii) Capital Contributions; and (b) DECREASING such balance by
(i) the amount of cash or the fair market value of any property distributed to
such Member pursuant to this Agreement and (ii) such Member's allocable share of
Net Loss (allocated in accordance with Section 6.11). Each Member's Capital
Account shall be further adjusted with respect to any special allocations
pursuant to Section 6.12.
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The provisions of this Agreement relating to the maintenance of Capital Accounts
are intended to comply with Treasury Regulations Section 1.704-1(b) and shall be
interpreted and applied in a manner consistent with such Treasury Regulations.
6.3 AMOUNTS AND PRIORITY OF DISTRIBUTIONS. Distributable Cash shall first
be paid on account of and to the extent of the principal and interest on any
Voluntary Loans, in repayment of the interest and principal on such Voluntary
Loans, and any remaining Distributable Cash shall be distributed to the Members
in accordance with the following provisions:
(a) (i) First, to the Members, in proportion to and to the extent of
the excess for each of them of (x) the Capital Contributions made by such
Member, over (y) the amounts previously distributed to such Member pursuant
to this Section 6.3(a)(i);
(ii) Second, to the Members, in proportion to their respective
Percentage Interests until the cumulative distributions pursuant to this
Section 6.3(a)(ii) are sufficient to provide the First Preferential Return
with respect to the amounts described in Section 6.3(a)(i) above,
determined in accordance with Section 6.3(b)(i);
(iii) Third, 57.5% to the Managing Member and 42.5% to the Special
Member, until the cumulative distributions to the Managing Member and
Special Member pursuant to this Section 6.3(a)(iii) equal 20% of the sum of
the distributions made to the Members pursuant to Section 6.3(a)(ii) above
and this Section 6.3(a)(iii);
(iv) Fourth, (A) 75/95 to the Members in proportion to their
respective Percentage Interests, and (B) 20/95 to the Managing Member and
the Special Member, allocated between them 57.5% to the Managing Member and
42.5% to the Special Member, until the cumulative distributions to the
Members pursuant to Section 6.3(a)(ii) and this Section 6.3(a)(iv) are
sufficient to provide the Second Preferential Return with respect to the
amounts described in Section 6.3(a)(i) above, determined in accordance with
Section 6.3(b)(ii); and
(v) Thereafter, (A) 70/95 to the Members in proportion to their
respective Percentage Interests, and (B) 25/95 to the Managing Member and
the Special Member, allocated between them 57.5% to the Managing Member and
42.5% to the Special Member.
The parties acknowledge that OPIC is entitled to payment of the Deferred
Guaranty Fees (as set forth in Section 7.3(b)(vi) of the Finance Agreement) at
the following times and in the following amounts:
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(x) When distributions are made pursuant to Section
6.3(a)(iii), a fee shall be paid to OPIC so that of the total cash
being distributed to the Members and paid to OPIC, 80% is distributed
to the Members pursuant to Section 6.3(a)(iii) and 20% is paid to OPIC;
and
(y) When distributions are made pursuant to Sections
6.3(a)(iv) and (v), a fee shall be paid to OPIC so that of the total
cash being distributed to the Members and paid to OPIC, 95% is
distributed to the Members pursuant to Sections 6.3(a)(iv) and/or (v),
and 5% is paid to OPIC;
provided, that at such time as such Deferred Guaranty Fees shall no longer be
payable to OPIC under the Finance Agreement, the amount that would otherwise be
paid to OPIC on account of such fees shall instead be added to the amounts
otherwise distributable to the Managing Member and the Special Member (allocated
between them 57.5% to the Managing Member and 42.5% to the Special Member)
pursuant to Section 6.3(a)(iii), (iv) or (v), as the case may be.
(b) (i) For purposes of Section 6.3(a)(ii) above, a
preferential return (the "FIRST PREFERENTIAL RETURN") shall accrue for
each Member equal to a return at the rate of 8.0% per annum, compounded
annually, on the balance from time to time of the excess of (x) all
Capital Contributions made by such Member, over (y) all amounts
previously distributed to such Member pursuant to Section 6.3(a)(i). In
determining the unpaid amount of the First Preferential Return, there
shall be taken into account as payments thereof all distributions to
such Member pursuant to Section 6.3(a)(ii).
(ii) For purposes of Section 6.3(a)(iv) above, a preferential
return (the "SECOND PREFERENTIAL RETURN") shall accrue for the Members
collectively equal to a return at the rate of 20.0% per annum,
compounded annually, on the balance from time to time of the excess of
(x) all Capital Contributions made by the Members, over (y) all amounts
previously distributed to the Members pursuant to Section 6.3(a)(i). In
determining the unpaid amount of the Second Preferential Return, there
shall be taken into account as payments thereof all distributions to
the Members pursuant to Sections 6.3(a)(ii) and (iv)(A).
(c) Notwithstanding the foregoing distribution provisions of this
Section 6.3, if the cumulative historic tax liability (calculated based on the
applicable highest marginal tax rates for the Special Member, the Managing
Member or the direct or indirect members of the Managing Member applicable to
ordinary income or capital gains, as appropriate, taking into account the
holding period of the Investments disposed of and the year in which the taxable
net income is recognized by the Company, and taking into account the
deductibility of state and local income taxes for federal income tax purposes
(the "TAX RATE")) of the Special Member and the direct and indirect Members in
the Managing Member, as of any distribution date, with respect to taxable net
income allocated to the Special Member and the Managing Member (after taking
into account any taxable net loss allocated to the Special Member and the
Managing Member for all Fiscal Years, or portions thereof, ending on or before
such distribution date) (the "CUMULATIVE HISTORIC TAX LIABILITY"), exceeds the
cumulative
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distributions made to the Special Member and the Managing Member through such
distribution date pursuant to this Section 6.3 (after application of the
provisions of Section 6.3(d) with respect to such distributions), the Special
Member and the Managing Member shall receive a distribution ("SPECIAL TAX
DISTRIBUTION") in an amount equal to such excess tax liability (in proportion to
the amounts calculated for each of them) and the amount distributed to the
Investor Members pursuant to Section 6.3(a) shall be reduced by the amount of
such excess tax liability. Such aggregate reduction of the amount distributed to
the Investor Members shall be apportioned among them in proportion to their
respective Percentage Interests and each Investor Member's share shall be
deducted from amounts otherwise distributable to such Investor Member, and
pursuant to Section 6.3(d) shall be repaid to such Investor Member.
(d) The amount otherwise distributable to the Special Member and the
Managing Member pursuant to Section 6.3(a) on the date of any distribution shall
be reduced by an amount, determined for each of them, equal to the excess, if
any, of (x) the aggregate amount distributed to the Special Member and the
Managing Member pursuant to Section 6.3(c) prior to such distribution date, over
(y) the aggregate amount of all prior reductions in the amount distributed to
the Special Member and the Managing Member pursuant to Section 6.3(a) as a
result of this Section 6.3(d), and the amount to be distributed to the Investor
Members pursuant to Section 6.3(a) shall be increased by the amount of any such
reduction in proportion to the aggregate amount by which distributions to each
such Investor Member pursuant to Section 6.3(a) for all prior Fiscal Years, or
portions thereof, ending before such distribution date were reduced pursuant to
Section 6.3(c).
(e) To the extent the Company is required by law to withhold or to make tax
payments on behalf of or with respect to any Member (E.G., backup withholding)
("TAX ADVANCES"), the Managing Member may withhold such amounts and, only to the
extent it is permitted at the time to make a tax distribution in accordance with
Section 7.3(b)(v) of the Finance Agreement, use funds of the Company to make
such tax payments as so required. To the extent there continues to exist any
payment obligation of the Company in respect to such taxes, the relevant Members
agree to make such payment directly, or the Managing Member may make a loan to
the Company for such payment, bearing interest at the Loan Rate and payable only
from distributions otherwise payable to the relevant Members. All Tax Advances
made on behalf of a Member, plus interest thereon at a rate equal to the Loan
Rate, shall (i) be promptly paid to the Company by the Member on whose behalf
such Tax Advances were made (such payment not to constitute a Capital
Contribution), or (ii) with the consent of the Managing Member, in its sole
discretion, be repaid by reducing the amount of the current or next succeeding
distribution or distributions which would otherwise have been made to such
Member or, if such distributions are not sufficient for that purpose, by so
reducing the proceeds of liquidation otherwise payable to such Member. Whenever
option (ii) pursuant to the preceding sentence for repayment of a Tax Advance by
a Member is selected, for all other purposes of this Agreement such Member shall
be treated as having received all distributions (whether before or upon
liquidation) unreduced by the amount of such Tax Advance and interest thereon.
To the extent possible, the Managing Member shall notify the affected Member in
advance of making such Tax Advance and shall afford such Member the opportunity
to provide funds for such withholding or payment. Each Member hereby agrees to
reimburse the Company and the
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Managing Member for any liability with respect to Tax Advances required or made
on behalf of or with respect to such Member.
6.4 [Reserved.]
6.5 OVERRIDING PROVISION. Notwithstanding anything to the contrary
contained herein, while the Finance Agreement remains in effect all Cash Flow
shall be distributed and otherwise disposed of as provided in Section 7.3 of the
Finance Agreement.
6.6 [Reserved.]
6.7 DISTRIBUTIONS OF SECURITIES. Marketable Securities or any other
securities may be distributed in kind only under a dissolution pursuant to
Section 15. In the event a distribution of securities is made, such securities
shall be deemed to have been sold at their Value and the proceeds of such sale
shall be deemed to have been distributed to the Members for all purposes of this
Agreement. Subject to the following sentence of this Section 6.7 and Section
15.2, securities distributed in kind shall be distributed in proportion to the
aggregate amounts that would be distributed to each Member pursuant to Section
6.3, such aggregate amounts to be estimated in the good faith judgment of the
Managing Member. In connection with any distribution of securities, the Managing
Member shall offer to each Member the right to receive such distribution in the
form of the proceeds of the disposition of the securities that otherwise would
have been distributed to such Members, PROVIDED that any taxable gain or loss
recognized by the Company upon the disposition of such securities shall be
allocated equitably pursuant to Section 6.11 among only those Members electing
to receive proceeds instead of securities and such Members will bear all of the
expenses (including, without limitation, underwriting costs) of such
disposition, and PROVIDED FURTHER that the Capital Account adjustments in
respect of such Members contemplated by Section 6.2 shall be made as if such
securities have been distributed as contemplated by the first sentence of this
Section 6.7. The Managing Member may cause certificates evidencing any
securities to be distributed and to be imprinted with legends as to such
restrictions on transfers that it may deem necessary or appropriate, including
legends as to applicable federal or state securities laws or other legal or
contractual restrictions, and may require any Member to which securities are to
be distributed to agree in writing (i) that such securities will not be
transferred except in compliance with such restrictions and (ii) to such other
matters as the Managing Member may deem necessary or appropriate.
6.8 NEGATIVE CAPITAL ACCOUNTS. The Members, other than the Managing Member,
shall not, and, except as required by law, the Managing Member shall not, be
required to make up a negative balance in its Capital Account.
6.9 SECTION 754 ELECTION. The Managing Member may, in its sole discretion,
make or refrain from making the election provided for in Section 754 of the Code
or any other tax election for the Company.
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6.10 WITHDRAWAL OF CAPITAL. Except as otherwise expressly provided herein,
no Member shall have the right to withdraw capital from the Company or to
receive any distribution or return of its Capital Contributions.
6.11 ALLOCATION OF NET INCOME AND NET LOSS.
(a) For purposes of this Section 6.11, and for all other purposes of this
Agreement, the following terms shall have the following meanings:
"CARRY ACCOUNT" shall mean, for each of the Special Member and the Managing
Member, an account maintained by the Company on the books and records of the
Company exclusively for purposes of calculating the amount of Net Income and Net
Loss allocable to the Special Member and the Managing Member, in accordance with
the provisions set forth below. Each Carry Account shall be (i) increased by any
Net Income allocated to the Special Member and the Managing Member pursuant to
clauses (ii), (iv)(B) and (v)(B) of Section 6.11(b) and (ii) decreased by (I)
the amount of cash and the Fair Value of any Company property distributed to the
Special Member and the Managing Member pursuant to clauses (iii), (iv)(B) and
(v)(B) of Section 6.3(a) and (II) Net Loss allocated to the Managing Member
pursuant to clauses (i)(B), (ii)(B) and (iii) of Section 6.11(c).
"UNRECOVERED CAPITAL" of an Investor Member shall mean, as of any date, the
excess, if any, of (x) the aggregate amount of such Member's Capital
Contributions, over (y) the sum of all distributions previously made to such
Member pursuant to clause (i) of Section 6.3(a) as of such date.
(b) Net Income for each Fiscal Year (or portion thereof), shall be
allocated among the Members as follows, and in the following order of priority:
(i) First, to all of the Members, in proportion to their respective
Percentage Interests, until the positive balance of each Investor Member's
Capital Account is equal to its Unrecovered Capital;
(ii) Second, to all of the Members, in proportion to their respective
Percentage Interests, until the positive balance of each Investor Member's
Capital Account in excess of its Unrecovered Capital is equal to the
maximum amount distributable to such Investor Member pursuant to Section
6.3(a)(ii);
(iii) Third, 57.5% to the Managing Member and 42.5% to the Special
Member, until the positive balance of each of the Special Member's and the
Managing Member's Carry Account is equal to the maximum amount that would
be distributable to the Special Member or the Managing Member, as the case
may be, pursuant to Section 6.3(a)(iii) (taking into account any increase
in such amount pursuant to the last sentence of Section 6.3(a));
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(iv) Fourth, (A) 75/95 to the Members in proportion to their
respective Capital Contributions and (B) 20/95 to the Managing Member and
the Special Member, allocated between them 57.5% to the Managing Member and
42.5% to the Special Member, until (x) the positive balance of each
Investor Member's Capital Account in excess of its Unrecovered Capital is
equal to the maximum amount distributable to such Investor Member pursuant
to Sections 6.3(a)(ii) and (iv)(A), and (y) the positive balance of each of
the Managing Member's and the Special Member's Carry Account is equal to
the maximum amount that would be distributable to the Managing Member or
the Special Member, as the case may be, pursuant to Sections 6.3(a)(iii)
and (iv)(B); provided that to the extent the amounts otherwise
distributable to the Managing Member and the Special Member pursuant to
Section 6.3(a)(iv) are increased pursuant to the last sentence of Section
6.3(a), the Net Income allocable to the Managing Member and the Special
Member pursuant to this Section 6.11(b)(iv) shall be increased by the same
amount; and
(v) Thereafter, (A) 70/95 to the Members in proportion to their
aggregate Percentage Interests, and (B) 25/95 to the Managing Member and
the Special Member, allocated between them 57.5% to the Managing Member and
42.5% to the Special Member; provided that to the extent the amounts
otherwise distributable to the Managing Member and the Special Member
pursuant to Section 6.3(a)(v) are increased pursuant to the last sentence
of Section 6.3(a), the Net Income allocable to the Managing Member and the
Special Member pursuant to this Section 6.11(b)(v) shall be increased by
the same amount.
(c) Net Loss for each Fiscal Year (or portion thereof), shall be allocated
among the Members as follows, and in the following order of priority:
(i) First, (A) 70/95 to the Members in proportion to their respective
Percentage Interests and (B) 25/95 to the Managing Member and the Special
Member, allocated between them 57.5% to the Managing Member and 42.5% to
the Special Member, until the Investor Members' Capital Accounts and the
Managing Member's and the Special Member's Carry Accounts are equal to the
amounts described in Section 6.11(b)(iv) above;
(ii) Second, (A) 75/95 to the Members in proportion to their
respective Percentage Interests, (B) 20/95 to the Managing Member and the
Special Member, allocated between them 57.5% to the Managing Member and
42.5% to the Special Member, until the Managing Member's and the Special
Member's Carry Accounts are equal to the amounts described in Section
6.11(b)(iii) above;
(iii) Third, 57.5% to the Managing Member and 42.5% to the Special
Member, until the Managing Member's and the Special Member's Carry Accounts
are reduced to zero;
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(iv) Fourth, to all of the Members, in proportion to their
respective Percentage Interests, until the positive balance of each
Investor Member's Capital Account is equal to its Unrecovered Capital;
and
(v) Thereafter, to the Members, in proportion to their respective
Percentage Interests.
(d) For federal, state and local income tax purposes, items of income,
gain, loss, deduction and credit shall be allocated to the Members in accordance
with the allocations of the corresponding items for Capital Account purposes
under Section 6.11, except that items with respect to which there is a
difference between tax and book basis will be allocated in accordance with
section 704(c) of the Code, the Regulations thereunder and Regulation section
1.704-1(b)(4)(i).
6.12 REGULATORY ALLOCATIONS.
(a) Notwithstanding any other provision of this Agreement, if there is
a net decrease in Company Minimum Gain during any year, each Member shall be
specially allocated items of income and gain for such year (and, if necessary,
subsequent years) in an amount equal to the portion of such Member's share of
the net decrease in Company Minimum Gain, determined in accordance with ss.
1.704-2(g) of the Treasury Regulations. Allocations pursuant to the previous
sentence shall be made in proportion to the respective amounts required to be
allocated to each Member pursuant thereto. The items to be so allocated shall be
determined in accordance with ss. 1.704-2(f)(6) of the Treasury Regulations.
This Section 12.6(a) is intended to comply with the minimum gain chargeback
requirement in ss. 1.704-2(f) of the Treasury Regulations and shall be
interpreted consistently therewith.
(b) Notwithstanding any other provisions of this Agreement except
Section 6.12(a), if there is a net decrease in Member Minimum Gain attributable
to a Member Nonrecourse Debt during any year, each Member who has a share of the
Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in
accordance with ss. 1.704-2(i)(5) of the Treasury Regulations, shall be
specially allocated items of income and gain for such year (and, if necessary,
subsequent years) in an amount equal to the portion of such Member's share of
the net decrease in Member Minimum Gain attributable to such Member Nonrecourse
Debt, determined in accordance with ss. 1.704-2(i)(4) of the Treasury
Regulations. Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to each Member
pursuant thereto. The items to be so allocated shall be determined in accordance
with ss.1.704-2(i)(4) of the Treasury Regulations. This Section 6.12(b) is
intended to comply with the minimum gain chargeback requirement in ss.1.704-2(i)
of the Treasury Regulations and shall be interpreted consistently therewith.
(c) Nonrecourse Deductions for any year shall be allocated as Net
Loss.
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(d) Any Member Nonrecourse Deductions for any year shall be
specially allocated to the Member who bears the economic risk of loss with
respect to the Member Nonrecourse Debt to which such Member Nonrecourse
Deductions are attributable in accordance with ss. 1.704-2(i)(1) of the Treasury
Regulations.
(e) Notwithstanding any other provision of this Agreement, no
Member shall be allocated in any fiscal year of the Company any Net Loss to the
extent such allocation would cause or increase a deficit balance in such
Member's Adjusted Capital Account, taking into account all other allocations to
be made for such year pursuant to this Agreement and the reasonably expected
adjustments, allocations and distributions described in ss. 1.704-1(b)(2)(ii)(d)
of the Treasury Regulations. Any such Net Loss that would be allocated to a
Member (the "DEFICIT MEMBER") shall instead be allocated to the other Members.
Moreover, if a Deficit Member unexpectedly receives an adjustment, allocation or
distribution described in ss. 1.704-1(b)(2)(ii)(d) of the Treasury Regulations
which creates or increases a deficit balance in such Member's Adjusted Capital
Account (computed after all other allocations to be made for such year pursuant
to this Agreement have been tentatively made as if this Section 6.12(e) were not
in this Agreement), such Deficit Member shall be allocated items of income and
gain in an amount equal to such deficit balance. This Section 6.12(e) is
intended to comply with the qualified income offset requirement of ss.
1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted
consistently therewith.
(f) The allocations set forth in Sections 6.12(a) through 6.12(e)
(the "REGULATORY ALLOCATIONS") shall be taken into account in allocating items
of income, gain, loss and deduction among the Members so that, to the extent
possible, the net amount of such allocations of other items and the Regulatory
Allocations to each Member shall be equal to the net amount that would have been
allocated to each such Member if the Regulatory Allocations had not occurred.
7. OTHER MEMBERS.
7.1 NO PARTICIPATION IN MANAGEMENT, ETC. No Member, other than the
Managing Member, shall take part in the management or control of the Company's
affairs, transact any business in the Company's name or have the power to sign
documents for or otherwise bind the Company. Except as otherwise provided in
Section 15.1(d), no Member shall have the right to vote for the election,
removal or replacement of the Managing Member.
7.2 NO PRIORITY, ETC. Except as provided in Section 6, no Member
shall have priority over any other Member either as to the return of the amount
of its Capital Contribution to the Company or as to any allocation of Net Income
and Net Loss.
7.3 LIMITATION OF LIABILITY OF MEMBERS. Except as may otherwise be
provided by law and herein, the liability of a Member is limited to its Capital
Commitment, and a Member shall only be liable to make payment of its respective
contributions as and when due hereunder and other payments as expressly provided
in this Agreement. Except as otherwise provided by the Act or herein, the debts,
obligations and liabilities of the Company, whether
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arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the Company, and no Member shall be obligated personally for
any such debt, obligation or liability of the Company solely by reason of being
a member of the Company. A Member shall not be required to lend any funds to the
Company. If and to the extent a Member's contribution shall be fully paid, such
Member shall not, except as required by the express provisions of the Act
regarding repayment of sums wrongfully distributed to Members, be required to
make any further contributions.
8. THE MANAGER.
8.1 APPOINTMENT OF MANAGER. The Managing Member may delegate one or
more of its responsibilities under this Agreement with respect to the management
of the Company to a Manager which shall be compensated (and reimbursed for
expenses that are not Permitted Expenses) solely from the Asset Management Fee
paid to the Managing Member. The Manager shall manage the operations of the
Company and shall have discretionary authority in accordance with an investment
management agreement approved by the Managing Member and in accordance with the
Finance Agreement. The Manager shall act in conformity with this Agreement and
any Financing Arrangement and will conform to and comply with the requirements
of all applicable laws and regulations.
8.2 ASSET MANAGEMENT FEE. The Company shall pay to the Managing Member
a fee (the "Asset Management Fee") quarterly in advance beginning on the date
hereof (with respect to the period beginning on the date hereof and ending on
June 30, 1998) and on the first day of each calendar quarter hereafter, in an
amount and at a rate equal to:
(a) in respect of the period beginning on the date hereof until the
expiration of the Loan Commitment Period, 2% per year of total Available Capital
(as defined in the Finance Agreement);
(b) in respect of the period beginning on the day after the
expiration of the Loan Commitment Period until the expiration of the Investment
Period, without duplication, (i) 1% per year of the aggregate Funded Investment
in all Projects in which the Company has a direct or indirect interest on the
first day of the subject three month period, plus (i) 2% per year of
Reinvestment Capital (as hereafter defined) on the first day of the subject
three month period. As used herein, "Reinvestment Capital" shall mean the
amount, expressed in United States dollars, equal to the value of all Interim
Securities and/or Interim Local Securities held by the Holding Company and the
Portfolio Holding Companies on the first day of the subject three month period
which (x) comprise net proceeds derived from the sale or other permanent
disposition of Projects, directly or indirectly through the sale of Portfolio
Securities or otherwise, (y) are permitted to be reinvested in Portfolio
Securities and/or Projects and (z) the Managing Member certifies to OPIC are
intended to be used for reinvestment in Projects; and
(c) in respect of the remainder of the term of the Company, 1% per
year of the aggregate Funded Investment in all Projects in which the Company has
a direct or indirect interest on the first day of the subject three month
period.
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8.3 PROPERTY MANAGEMENT AND SERVICES FEES. Without limiting the provisions
of Section 3.4, and subject to the provision of Article 9: (i) the Managing
Member itself, or through one or more Affiliates, may provide property
management, brokerage, development management, facilities management and other
services to Portfolio Companies in connection with transactions in Projects and
the leasing, management and development of properties, either itself or in
combination with third parties, and may, subject to the terms of the Finance
Agreement, earn Property Management Fees and other fees that are fair and
commercially reasonable; and (ii) the Special Member or any Affiliate thereof
may provide financial advisory and other financial services to the Company and
act as an agent under the Financing Documents, with OPIC's consent to the extent
required under the Financing Documents and may, subject to the terms of the
Finance Agreement, earn fees in connection with such activities that are fair
and commercially reasonable.
9. ADVISORY BOARD AND MEMBERSHIP MEETINGS.
(a) SCOPE OF AUTHORITY OF BOARD. The Managing Member shall appoint an
advisory board (the "Advisory Board") to (i) review actual and potential
conflicts of interest which may arise between (A) the Managing Member, the
constituent parties of the Managing Member and each of their Affiliates and (B)
the Company, the Holding Company, the Portfolio Holding Companies and the
Portfolio Companies, (ii) consult generally with the Managing Member on the
Company's progress in achieving its investment objectives and (iii) through the
Independent Advisory Board Committee, carry out such other responsibilities as
are required of such Independent Advisory Board Committee pursuant to the
Indemnity Agreement. Each of the Company and the Holding Company shall, prior to
engaging in any transaction with the Special Member, the Managing Member or any
of their respective Affiliates (other than the provision of management services
and the payment of the Asset Management Fee), obtain from the Advisory Board a
waiver of any potential conflicts of interest arising therefrom; provided, that
with respect to those agreements enumerated in Section 8.3, such waiver shall be
given if all of the terms of such agreement are determined by a majority of the
members of the Independent Advisory Board Committee to be fair and reasonable to
the Company, the Holding Company, the Portfolio Holding Companies and the
Controlled Portfolio Companies, as applicable, based on commercially reasonable
standards. The Company's potential investments will not be submitted for
approval to the Advisory Board. Although members of the Advisory Board may
express views on the matters listed in clause (ii) of this Section 9(a), neither
the Advisory Board nor its individual members will control the business of the
Company and their views shall not be binding upon the Managing Member. All
transactions between the Special Member, the Managing Member, the constituent
parties of the Managing Member and their respective Affiliates, on the one hand,
and the Company, the Holding Company, the Portfolio Holding Companies or the
Portfolio Companies, on the other hand, will be conducted on an arm's-length
basis and the terms of each such transaction, including pricing, will require
advance approval of a majority of the members of a committee of the Advisory
Board (the "Independent Advisory Board Committee") comprising the members who
are not officers, directors, employees, contractors, agents or Affiliates of the
Special Member, the Managing Member, their constituent
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parties or any of their respective Affiliates. Such committee shall have the
exclusive authority to determine whether a transaction is subject to the
foregoing requirements.
(b) COMPOSITION OF BOARD. The Advisory Board shall consist of between 5
and 9 members at the discretion of the Managing Member. The Managing Member, in
its sole discretion, may invite any individual to be a member of the Advisory
Board; PROVIDED, that at least three members of the Advisory Board shall be (i)
selected by the Managing Member with OPIC's prior consent (so long as the
Finance Agreement remains in effect), and (ii) Persons who are not Affiliates of
the Special Member, the Managing Member, any constituent entity of the Managing
Member, or any of their respective Affiliates, or any officer, director,
partner, member, employee or agent of any of the foregoing. Until all amounts
due to OPIC under the Finance Agreement have been paid in full, the Company
shall appoint OPIC's designated officer to the Advisory Board and the
Independent Advisory Board Committee to serve as OPIC's non-voting, ex officio
representative, and shall permit a Qualified Representative (as hereafter
defined) of OPIC to observe any meetings or proceedings of the Advisory Board
and of the Independent Advisory Board Committee. The Company may exclude such
Qualified Representative from the portion of any such meeting at which only
confidential and proprietary information in respect of (x) prospective
investments of the Company in a Project, (y) prospective lessees or purchasers
of such a Project, or (z) prospective Participants (as defined in the Finance
Agreement) in such a Project, in each case in which such Project, lessee,
purchaser or Participant has not yet been submitted for OPIC approval, are being
considered. The term "Qualified Representative" shall mean any specified
individuals employed by an advisor engaged by OPIC which advisor has executed an
agreement with OPIC for the benefit of the Company, a copy of which has been
furnished by OPIC to the Company, in which such advisor has agreed, subject to
usual and customary conditions, not to (i) disclose any confidential,
proprietary information obtained from the Company or the members of the Advisory
Board or the Independent Advisory Board Committee to Persons other than OPIC and
its counsel or (ii) use such information for its own account or the account of
any Person other than in respect to its advisory services to OPIC.
(c) MEETINGS OF BOARD. Meetings of the Advisory Board shall be held as
the Managing Member deems necessary, but at least once a year or such greater
frequency as may be required under the Financing Documents. The Managing Member
shall give OPIC not less than fifteen (15) days prior written notice of each
meeting or proceeding of the Independent Advisory Board Committee and the
Advisory Board and shall permit OPIC's designated officer and a Qualified
Representative to observe any such meeting or proceeding, subject to the
penultimate sentence of subsection (b) hereof.
(d) MEMBER MEETINGS. The Managing Member shall give OPIC not less than
fifteen (15) days prior written notice of each meeting or proceeding of Members
and shall permit OPIC's designated officer and a Qualified Representative to
observe any such meeting or proceeding, subject to the penultimate sentence of
subsection (b) hereof.
10. EXPENSES. The Company shall bear all Permitted Expenses, and the
Managing Member shall bear all other expenses of the Company.
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11. DETERMINATION BY THE MANAGING MEMBER OF CERTAIN MATTERS. All matters
concerning the allocation of profits, gains and losses among the Members,
including the taxes on those profits, gains and losses, and accounting
procedures, not specifically and expressly provided for by the terms of this
Agreement, shall be determined in good faith by the Managing Member, whose
determination shall be final, binding and conclusive upon all of the Members.
12. INVESTMENT COMMITTEE. The Company shall establish an investment
committee (the "Investment Committee") consisting of not less than 3 nor more
than 7 members, each appointed by the Managing Member. The Investment Committee
shall meet no less frequently than quarterly, at such time and location as may
be determined by the Managing Member by notice to each member of the Investment
Committee not less than 15 days prior to such meeting. Each such notice shall
set forth the purpose of the meeting and an agenda in respect of the same. Any
such meeting may be held by telephone, provided that all materials required to
be presented to the Investment Committee shall have been delivered to the
members thereof. The Managing Member shall present all prospective investment in
Projects to the Investment Committee by preparing and submitting a preliminary
proposal setting forth all material aspects of the proposed Project then known,
including a proposed pre-development budget, income and expense projections, IRR
calculations and an analysis of market conditions in the locality in question
and such other information and calculations as shall be reasonably required to
enable the Investment Committee to make a considered decision as to whether to
approve the Project. The Company may not undertake any such Project without the
prior approval of all members of the Investment Committee.
13. LIMITATION ON ASSIGNABILITY OF MEMBERS' INTERESTS.
(a) Except as contemplated in the Finance Agreement, none of the
Members may assign or otherwise transfer or encumber its interest in the
Company, in whole or in part, without the consent of the Managing Member, which
may be withheld in its sole discretion.
(b) Notwithstanding anything in this Section 13 to the contrary, the
Members' interests in the Company may be pledged or assigned as contemplated by
the Finance Agreement and any such pledge will not cause a Member to cease to be
a member of the Company. The Company acknowledges that the interests in the
Company of the Managing Member and the Special Member may be pledged to OPIC as
contemplated in the Finance Agreement as collateral security for certain
obligations under the Indemnity Agreement and the Subordination Agreement.
(c) Notwithstanding anything to the contrary contained herein, the
Managing Member shall have the right, subject to the terms and conditions of the
Finance Agreement, on one or more occasions within the period ending on December
31, 1998, to admit additional Members to the Company and to permit existing
Members to increase their Capital Commitments. Upon each admission of an
additional Member or increase in a Member's Capital Commitment: (i) such Member
shall (x) contribute to the capital of the Company an amount
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equal to such Member's Pro Rata Share (as hereinafter defined) of the aggregate
capital contributions that shall theretofore have been made to the Company by
the Members thereof, less, in the case of an existing Member, the amount
previously contributed by such Member to the Company, and (y) pay to the Company
an interest factor derived by applying the Loan Rate to the amount described in
clause (x) for the period commencing with the due date of the first Capital
Contributions made under this Agreement (or, if Capital Contributions in
addition to such first Capital Contributions have been made by the Members in
response to Drawdowns, from the due date of each such Drawdown with respect to
that portion of the amount described in clause (x) which represents such
Member's share of the Capital Contributions made pursuant to such Drawdown) and
ending on the date of such Member's actual contribution; (ii) this Agreement
(including Schedule A hereto) shall be amended to reflect the admission to the
Company of those of such Members which are not existing Members, as well as the
adjustment of the Percentage Interests hereinafter referred to; (iii) the
Capital Commitments of the Members, as existing immediately prior to such
admission or increase, shall be reduced in an aggregate amount equal to the
Capital Commitment of the Member(s) being admitted or the increase(s) being
effected in the Capital Commitments of existing Members, such reduction to be
allocated (A) first, fifty percent (50%) to each of the Special Member and
Pioneer Group until the Capital Commitment of Pioneer Group shall be reduced to
zero and (B) thereafter, among the Members in proportion to the Members'
respective Percentage Interests immediately prior to such admission or increase;
PROVIDED that in no event may the Capital Commitment of the Special Member be
reduced below $3,959,596 or the Capital Commitment of the Managing Member be
reduced below $4,040,404, and PROVIDED, FURTHER that in no event may the
aggregate Capital Commitments of all Members equal less than $80,000,000; and
(iv) the Percentage Interests shall be adjusted to reflect the Capital
Commitments (or increased Capital Commitments) of the Members being admitted to
the Company or increasing their Capital Commitments. The term "Pro Rata Share,"
as used in this Section 13(c) with respect to a Member, shall mean a fraction,
the numerator of which is the Capital Commitment of such Member (taking into
account any increases or reductions of its Capital Commitment effected pursuant
to this Section 13(c)) and the denominator of which is $80,000,000. The Managing
Member shall, not later than ten Business Days after December 31, 1998 (or ten
Business Days after any earlier date on which the Managing Member shall elect,
in its sole discretion, to cease the admission of new Members and increase in
the Members' Capital Commitments) (A) cause the Capital Contributions received
pursuant to clause (x) above to be distributed to the Members in such amounts as
shall cause the capital contributions of the Members (less, in the case of each
such Member, the distributions made to it as provided in this clause (A)) to
stand in the same proportion, one to the other, as the Pro Rata Shares of such
Members (determined after taking into account the admissions and increases
referred to herein); and (B) cause the interest paid pursuant to clause (y)
above to be distributed to the Members in such amounts as shall compensate the
Members on an equitable basis (taking into account the amount and timing of
their respective Capital Contributions) with respect to any periods during which
their respective Capital Contributions were, by reason of subsequent admissions
and increases of the nature described herein, disproportionate to their eventual
Pro Rata Shares. The amounts distributed to the Members pursuant to the
foregoing sentence shall in no event be deemed to be distributions of Cash Flow
for purposes of, and shall not otherwise be subject to, Section 7.3 of the
Finance Agreement. The Managing Member shall have the right to make the payments
and distributions provided for in the immediately preceding
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sentence from time to time prior to the date on which the obligation to make
such payments and distributions arises under such sentence. Any amount paid as
provided in clause (y) above or received by a Member as provided in clause (B)
above: (q) shall not be taken into account in determining whether the Member
paying the same has satisfied its Capital Commitment and shall not be credited
to such Member's Capital Account; and (r) shall, notwithstanding anything to the
contrary contained in this Agreement, be specially allocated to, and distributed
to, the Members entitled to receive the same as hereinabove provided (but shall
not be debited against the Capital Accounts of such Members). Without derogating
from the provisions of clause (iii) above, any amounts distributed to a Member
as provided in clause (A) above shall be treated for purposes of Article 6 as a
reduction in such Member's Capital Contribution but not of its Capital
Commitment.
14. DEATH, INCOMPETENCY, BANKRUPTCY, DISSOLUTION OR REMOVAL OF MEMBERS.
14.1 BANKRUPTCY OR DISSOLUTION OF THE MANAGING MEMBER. In the event of
the bankruptcy or dissolution of the Managing Member or the occurrence of any
other event that causes the Managing Member to cease to be a Managing Member of
the Company under the Act, the Company shall be dissolved and wound up as
provided in Section 15, unless the business of the Company is continued pursuant
to Section 15.1(d). Except as may be provided under the Finance Agreement, the
Managing Member shall not have the right to withdraw from the Company or to
transfer or assign its interest in the Company and shall take no action to
accomplish its voluntary dissolution.
14.2 DEATH, INCOMPETENCY, BANKRUPTCY, DISSOLUTION OR WITHDRAWAL OF
MEMBER. The death, incompetency, bankruptcy, dissolution or withdrawal of any
other Member shall not, in and of itself, dissolve or terminate the Company.
15. DISSOLUTION AND TERMINATION OF THE COMPANY.
15.1 DISSOLUTION. There will be dissolution of the Company and its
affairs shall be wound up upon the first to occur of any of the following
events:
(a) a unanimous written decision of the Members to dissolve the
Company;
(b) the last Business Day of the Fiscal Year in which all assets
acquired, or agreed to be acquired, by the Company have been sold or otherwise
disposed of (unless, during the Investment Period, the Managing Member elects in
its sole discretion to continue the business of the Company);
(c) December 31, 2008;
(d) the withdrawal, removal, bankruptcy or dissolution of the
Managing Member, or the occurrence of any other event under the Act that causes
the Managing Member to cease to be a Managing Member of the Company, UNLESS
within 90 days after the
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occurrence of such event, all of the remaining Members agree in writing to
continue the business of the Company and to the appointment, effective as of the
date of such event, if required, of one or more additional or substitute
Managing Members of the Company; and
(e) the decision, made by the Managing Member in its sole discretion, to
dissolve the Company because it has determined, in its sole discretion, in each
case, upon good faith reliance on an opinion of counsel, that there is
substantial likelihood that due to change in the application or interpretation
of the provisions of the federal securities laws (including the Securities Act,
the Investment Company Act and the Advisers Act), the Company cannot carry out
its investment program, as contemplated by this Agreement, after the Company and
the Managing Member have taken all commercially reasonable actions to mitigate
the adverse consequences of such change, it being understood that any actions
permitted to be taken by this Agreement shall be deemed commercially reasonable.
15.2 LIQUIDATION; DISTRIBUTION OF PROCEEDS. Upon dissolution, the Company
shall wind up its affairs and the property and assets of the Company shall be
liquidated in a prompt and orderly manner. The proceeds of sale and all other
assets of the Company, after all distributions for the then current year have
been made pursuant to Article 6, shall be applied and distributed as follows and
in the following order of priority:
(a) To the payment of third party debts and liabilities of the Company and
the expenses of liquidation;
(b) To the setting up of any reserves which the Managing Member in its sole
discretion shall determine are reasonably necessary for any contingent
unforeseen liabilities or obligations of the Company or of the Members arising
out of, or in connection with, the Company. Such reserves may, in the discretion
of the Managing Member, be paid over to an escrow agent selected by the Managing
Member to be held by such escrow agent for the purpose of disbursing such
reserves in payment of any of the aforementioned contingencies, and, at the
expiration of such period as the Managing Member may deem advisable (such period
of time not to exceed one year, except with respect to liabilities or
obligations which have arisen but have not been paid or liquidated), the balance
of such reserves, if any, shall be distributed to the Members as hereinafter
provided and in the priority hereinafter set forth;
(c) To the Managing Member in payment of any outstanding interest and
principal on any Voluntary Loans; and
(d) To the Members in proportion to the positive balances of their
respective Capital Accounts, as theretofore adjusted. Notwithstanding the
foregoing, in the event of any such distribution, the Company shall pay
contemporaneously to OPIC an amount equal to the Deferred Guaranty Fee in a
manner consistent with Section 6.3.
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15.3 DISTRIBUTIONS IN CASH OR IN KIND. Upon the dissolution of the
Company, the Managing Member shall use commercially reasonable efforts to
liquidate all of the Company assets in an orderly manner and apply the proceeds
of such liquidation as set forth in Section 15.2, or if, in the good faith
business judgment of the Managing Member, a Company asset should not be
liquidated, the Managing Member shall allocate, on the basis of the Value of any
Company assets not sold or otherwise disposed of, any unrealized gain or loss
based on such Value to the Members' Capital Accounts as though the assets in
question had been sold on the date of distribution and, after giving effect to
any such adjustment, distribute said assets in the proportions set forth in
Section 15.2, subject to the priorities set forth in Section 15.2, PROVIDED that
the Managing Member shall, in good faith, use all commercially reasonable
efforts to liquidate sufficient Company assets to satisfy in cash (or make
reasonable provision for) the debts and liabilities referred to in subsections
(a) and (b) of Section 15.2.
15.4 TIME FOR LIQUIDATION, ETC. A reasonable time period shall be
allowed for the orderly winding-up and liquidation of the assets of the Company
and the discharge of liabilities to creditors so as to enable the Managing
Member to seek to minimize potential losses upon such liquidation. The
provisions of this Agreement shall remain in full force and effect during the
period of winding-up and until the filing of a certificate of cancellation of
the Company.
15.5 TERMINATION. Upon completion of the foregoing, the Managing
Member shall execute, acknowledge and cause to be filed a certificate of
cancellation of the Company.
15.6 MANAGING MEMBER NOT PERSONALLY LIABLE FOR RETURN OF CAPITAL
CONTRIBUTIONS. Neither the Managing Member nor any other Covered Person shall be
personally liable for the return of the Capital Contributions of any Member, and
such return shall be made solely from available Company assets, if any, and each
Member hereby waives any and all claims it may have against the Managing Member
or any other Covered Person in this regard.
16. ACCOUNTING AND REPORTS.
(a) The records and books of account of the Company shall be
audited as of the end of each Fiscal Year by independent certified public
accountants selected by the Managing Member in its good faith judgment.
(b) As soon as practicable, but not later than 120 days after the
end of each Fiscal Year, the Managing Member shall cause to be delivered to each
other Member who was a Member of the Company at any time during that Fiscal Year
all information deemed necessary by the Managing Member, in its sole discretion,
for the preparation of such Person's tax return, including a statement showing
such Person's indirect share of Net Income or Net Loss, deductions and credits
for the year for federal income tax purposes, and the amount of any
distributions made to, or for the account of, such Person pursuant to this
Agreement. In addition, the Managing Member will be provided with a breakdown of
the Net Income allocated to the Managing Member for the Fiscal Period.
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(c) Within 120 days after the end of each Fiscal Year, the Managing
Member shall cause to be delivered to each Member of the Company owning an
interest in the Company at the end of the Fiscal Year, audited financial
statements of the Company for such Fiscal Year. At any time, any Member may,
upon reasonable notice and during ordinary business hours, make inquiry of the
Managing Member as to any information which comprises a part of the audited
financial statements of the Company, as well as any other information relevant
to the business of the Company.
(d) The Managing Member shall cause tax returns for the Company to be
prepared and timely filed with the appropriate authorities.
17. BOOKS AND RECORDS. (a) The Managing Member shall keep or cause to be
kept:
(i) copies of books and records pertaining to the Company's
business showing all of its assets and liabilities, receipts and
disbursements, realized profits and losses, the Members' Capital Accounts
and all transactions entered into by the Company;
(ii) a register of Company interests and any other registers
required to be maintained by the Act;
(iii) copies of the Company's federal, state and local income tax
returns and reports, if any, for the three (3) most recent years; and
(iv) copies of this Agreement, as the same may be amended from
time to time.
Items specified in clauses (ii), (iii) and (iv) shall be kept at the office of
the Managing Member. The Managing Member shall maintain the books and records of
the Company and any management information, cost control and accounting systems
in accordance with the terms of any Financing Arrangement.
(b) All books and records of the Company required to be kept under
this Section 17 shall be available for inspection and copying at the reasonable
request, and at the expense of, any Member during the Company's ordinary
business hours for any purpose reasonably related to such Member's interest as
one of the owners of the Company. Any request must be in writing and must state
the purpose of the request. However, the Managing Member shall have the right to
keep confidential from such Persons, for such period of time as the Managing
Member deems reasonable, any information which the Managing Member reasonably
believes to be in the nature of trade secrets or other information, the
disclosure of which the Managing Member, in good faith believes (i) is not in
the best interest of the Company, (ii) could damage the Company or its business
or (iii) which the Company is required by law or by agreement with a third party
to keep confidential.
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(c) Notwithstanding anything in this Agreement to the contrary, the
Managing Member, in its sole discretion, may furnish any additional information
regarding the Company, the Holding Company, the Portfolio Holding Companies or
the Portfolio Companies to any Person, including any lender, if required by and
in accordance with any Financing Arrangement.
(d) The Managing Member shall be the "tax matters partner" of the
Company within the meaning of Section 6231(a)(7) of the Code. The Managing
Member shall promptly take such action as may be necessary to cause all Members
to become "notice partners" within the meaning of Section 6231(a)(8) of the
Code. The Managing Member shall (i) keep the other Members apprised of all
material matters which come to the attention of the Managing Member in its
capacity as tax matters partner by giving notice to the other Members thereof
within 10 business days after the Managing Member becomes informed of any such
matter or within such shorter period as required to comply with the appropriate
statutory or regulatory provision and (ii) provide the other Members with at
least 10 business days' advance notice of the time, date and place of any
meeting between the Managing Member, in its capacity as tax matters partner, and
any representative of any taxing authority. Representatives of the other Members
shall be entitled to attend any such meeting.
18. AGREEMENT BINDING UPON SUCCESSORS AND ASSIGNS. This Agreement shall
inure to the benefit of, and shall be binding upon, the heirs, executors,
administrators or other representatives, successors and assigns of the Members.
19. AMENDMENT OF THE AGREEMENT.
(a) The terms and provisions of this Agreement may, subject to the
terms and conditions of the Finance Agreement, be modified or amended at any
time and from time to time with the written consent of Members having at least a
majority in interest of the Percentage Interests and the written consent of the
Managing Member; PROVIDED, HOWEVER, that without the consent of the other
Members the Managing Member may amend this Agreement or SCHEDULE A hereto to:
(i) reflect changes validly made in the membership of the Company and the
Capital Contributions and Percentage Interests of the Members; (ii) reflect a
change in the name of the Company; (iii) make a change that is necessary or, in
the opinion of the Managing Member, advisable to qualify the Company as a
limited liability company under the laws of any state or other jurisdiction, or
ensure that the Company will not be treated as an association taxable as a
corporation for federal income tax purposes; (iv) make a change that is
necessary or desirable to cure any ambiguity, or to correct or supplement any
provision in this Agreement that would be inconsistent with any other provision
in this Agreement, in each case so long as such change does not adversely affect
the Members in any material respect; (v) make a change that is necessary or
desirable to satisfy any requirements, conditions or guidelines contained in any
opinion, directive, order, ruling or regulation of any federal, state or other
governmental statute, so long as such change is made in a manner which minimizes
any adverse effect on the Members, or that is required or contemplated by this
Agreement; (vi) prevent the Company or the Managing Member from in any manner
being deemed an "investment company" subject to
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the provisions of the 1940 Act, as amended; or (vii) make a change that is
reasonably requested by any lender with respect to a Financing Arrangement, so
long as such change does not adversely affect the Members in any material
respect. The Managing Member shall send to each other Member a copy of any such
proposed amendment referred to in clauses (i) to (vii) above at least five (5)
Business Days prior to the execution of any such amendment. Each Member,
however, must consent to any amendment which would (a) increase the obligations
of any Member to make Capital Contributions; (b) change the allocation of Net
Income or Net Loss (or other income or expenses), the share of any Member in
distributions hereunder or the amount of the fees paid to the Managing Member
pursuant to Section 8.2 (provided that nothing in this clause (b) shall affect
the Managing Member's rights under Sections 5.3 and 13(c)); (c) amend the
provisions of this Agreement relating to amendments; or (d) result in the
Company being treated as an association taxable as a corporation for U.S.
federal income tax purposes; provided, however, that the consent of the Members
shall not be required in connection with any change in such obligation to make
Capital Contributions or such allocations which are effected pursuant to an
express provision of this Agreement. Notwithstanding any provision in this
Agreement to the contrary, no amendment to this Agreement shall increase the
liability of a Member without such Member's consent.
20. NOTICES. Each Member will provide the Company, in writing, with its
address and, if available, telephone number for receipt of facsimile
transmission. Notices that may or are required to be given under this Agreement
by any party to another must be in writing and either sent via facsimile,
courier or deposited in the international air mail, certified or registered,
postage prepaid and with return receipt requested, addressed to the respective
parties at the address or facsimile number they have provided to the Company, in
the case of any Member, or to the Company's registered office, in the case of
the Managing Member, or to any other addresses or facsimile numbers designated
by any Member by notice addressed to the Company, in the case of any Member and
to the other Members, in the case of the Managing Member. Notices will be deemed
to have been given at the earlier of (a) when sent via facsimile, (b) within
three (3) Business Days after posting or (c) when received.
21. EXECUTION OF OTHER DOCUMENTS; POWER OF ATTORNEY. Each of the Members
hereby appoints the Managing Member, or any of the officers of the Managing
Member or any of its members (and any substitute or successor managing member or
any officer thereof or of any of its members), each acting individually, as the
true and lawful attorney-in-fact of such Member, in such Member's name, place
and stead with full power to do any of the following:
(a) Execute on its behalf, file and record this Agreement and all
amendments to this Agreement made in accordance with this Agreement;
(b) Prepare, execute on its behalf, verify, file and record amendments
to this Agreement or to the books and records of the Company reflecting a change
of the name or location of the principal place of business of the Company, a
change of the name or address of any Member, the addition or withdrawal of
Members, the disposal by a Member of its interest as Member in the Company, any
adjustments effected pursuant to Sections 5.3 and 13(c) and the
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correction of typographical or similar errors, as well as any amendments made in
accordance with Section 19;
(c) Prepare, execute on its behalf and record a Certificate of
Formation and all amendments that the Managing Member may deem advisable,
including amendments to reflect the changes identified in clause (b) above;
(d) Prepare, execute on its behalf, file and record any other
agreements, certificates, instruments and other documents required to continue
the Company, to admit substituted Members, to change the name of the Company, to
liquidate and dissolve the Company, to comply with applicable law, and to carry
out the purposes of clauses (a) and (b) above, to the extent consistent with
this Agreement;
(e) Effect assignments and redemptions pursuant to Sections 5.3 and
13(c) and, to such end, execute and deliver assignments and other documents; and
(f) Prepare and execute on its behalf any document of further
assurance required hereunder.
The power of attorney hereby granted by each of the Members is irrevocable
and coupled with an interest, shall survive the transfer of a Member's interest
in the Company and shall survive, and shall not be affected by, the subsequent
death, disability, incapacity, incompetency, termination, bankruptcy, insolvency
or dissolution of such Member.
22. GOVERNING LAW. This Agreement, and the rights of the Members under it,
shall be governed by and construed in accordance with the laws of the State of
Delaware without regard to principles of conflict of laws. In the event of
conflict between any provision of this Agreement and any non-mandatory provision
of the Act, the provision of this Agreement shall control and take precedence.
23. CONSENTS. Any and all consents, agreements or approvals provided for or
permitted by this Agreement shall be in writing and signed copies of them shall
be filed and kept with the books of the Company.
24. MISCELLANEOUS. (a) This Agreement, including SCHEDULE A and EXHIBITS A
and B appended hereto, constitutes the entire understanding and agreement of the
Members as to the operation of the Company and supersedes any other agreement
relating to the operation of the Company.
(b) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original.
(c) Each provision of this Agreement is intended to be severable. A
determination that a particular provision of this Agreement is illegal or
invalid shall not affect the validity of the remainder of this Agreement.
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(d) The obligations of each Member pursuant to Section 6.3(e) shall survive
the termination or expiration of this Agreement.
(e) Nothing contained in this Agreement shall be construed to establish any
Member the agent of another Member, except as specifically provided in this
Agreement or by the Act, or in any manner to limit the Members in the carrying
on of their own respective businesses or activities other than as specifically
set forth herein.
(f) References in this Agreement to any right, power, action or decision
that may only be taken or made in accordance with the Finance Agreement or the
Financing Documents shall only apply so long as the Finance Agreement or such
other Financing Documents shall remain in effect.
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IN WITNESS WHEREOF, the Members have executed this Agreement as of the date
first above written.
MANAGING MEMBER:
PBO PROPERTY CAPITAL, L.L.C.
By: Pioneer Real Estate Advisors, Inc.,
its Managing Member
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
SPECIAL MEMBER:
BANC ONE CAPITAL HOLDINGS
CORPORATION
By: /s/ Xxxxx X. Xxxxx
---------------------------
Name: Xxxxx X. Xxxxx
Title: Chairman and CEO
OTHER MEMBERS:
THE PIONEER GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
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SCHEDULE A
PBO PROPERTY FUND, L.L.C.
SCHEDULE OF MEMBERS
The respective Capital Commitments of each Member are as set forth in the
table below opposite the name of each Member.
Capital
Name and Address Commitments Initial Capital Contribution
---------------- ----------- ----------------------------
MANAGING MEMBER:
PBO Property Capital, L.L.C. $4,040,404 $130,101
SPECIAL MEMBER:
Banc One Capital Holdings $39,959,596 $1,286,699
Corporation
OTHER MEMBERS:
The Pioneer Group, Inc. $36,000,000 $1,159,200
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EXHIBIT A
PERMITTED EXPENSES
(All capitalized terms used and not otherwise defined herein shall have the
respective meanings as defined in the Amended and Restated Finance Agreement
(the "Agreement") dated as of May 20, 1998, by and among the Fund, the Holding
Company, the Managing Member and OPIC.
Except as expressly provided herein, the Fund, the Holding Company, the
Portfolio Holding Companies and the Controlled Portfolio Companies
(collectively, the "Financing Credit Parties" and individually, a "Financing
Credit Party") may not pay or reimburse any Person for any fees, costs or
expenses (such fees, costs and expenses which the Financing Credit Parties may
pay or reimburse in accordance with the following, the "Permitted Expenses").
SECTION I. RESTRUCTURING FEES AND EXPENSES.
The Financing Credit Parties may pay or reimburse the Organizers or other
third parties for the non-recurring fees and expenses incurred by or on behalf
of the Fund (but not on behalf of any other Person, including without limitation
the Special Member, TPG, Pioneer or the Managing Member) in connection with the
restructuring of the Predecessor Fund and of the Loan, commencing on December
12, 1997 through the date of the Agreement, in a cumulative amount not to exceed
$500,000 in the aggregate (the "Maximum Reimbursement Amount"). The only such
fees and expenses for which the Financing Credit Parties may pay or reimburse
any Person in accordance with the foregoing are, subject to the Maximum
Reimbursement Amount, the following:
(1) amounts paid or reimbursed to OPIC, its counsel or other
advisors by the Organizers or their Affiliates;
(2) charges and filing fees imposed on the Fund and the Holding
Company by Governmental Authorities;
(3) reasonable fees and out-of-pocket expenses for professional
services rendered to the Fund or the Holding Company (but not to
or on behalf of any other Person, including without limitation
the Special Member, TPG, Pioneer or the Managing Member) in
connection with the restructuring of the Predecessor Fund and
the preparation of all agreements and other legal documents
required therefor; and
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(4) the reasonable out-of-pocket travel expenses of the Organizers
in connection with the restructuring of the Predecessor Fund.
SECTION II. OTHER EXPENSES
The only fees, costs or expenses incurred after the date of the
Agreement which the Financing Credit Parties may pay to or reimburse other
Persons are the following:
(1) the Management Fee;
(2) interest, applicable fees and other amounts payable to any lender
in compliance with the terms of any Financing Arrangement;
(3) the fees, charges and taxes imposed by Governmental Authorities
of the State of Delaware or other relevant jurisdiction of
organization on the Fund, the Holding Company or any Portfolio
Holding Company, or the Fund's allocable share of any such fees,
charges and taxes imposed on a Portfolio Company;
(4) the fees and expenses of the Fund's auditors incurred in the
preparation of the periodic financial statements required under
any Financing Arrangement and the preparation of any other such
statements required by any lender;
(5) the nominal costs and charges imposed by banks in connection with
payments in accordance with any Financing Arrangement by any
Financing Credit Party or the Fund's allocable share of any of
the same imposed on any other Portfolio Company, which costs and
charges are in the nature of wire transfer and similar fees;
(6) the fees and expenses payable to any lender, its collateral
agents or other agents, or to Governmental Authorities for
filing, registration or like charges, in each case in accordance
with any Financing Arrangement;
(7) the fees and out-of-pocket expenses of Persons not Affiliated
with either Organizer or any Financing Party, who are providing
labor, material, goods or services (including, without
limitation, legal, accounting, financial advisory, brokerage and
other advisory services) to a Financing Credit Party in a Host
Country (but not under any circumstances related to services
provided to the Managing Member in any capacity other than on
behalf of the Financing Credit Party receiving such labor,
material, goods or services) in connection with (a) specific
investments by or on behalf of a Financing Credit Party in
Portfolio Companies or Projects approved by the Investment
Committee, whether or not the investment is consummated, or (b)
divesting the Fund's direct or indirect investments;
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(8) the fees and out-of-pocket expenses of Persons Affiliated with
either Organizer or any Financing Party, which Persons are
providing services to a Financing Credit Party pursuant to
Construction Management Agreements, Property Management
Agreements, Facilities Management Agreements or Financial
Services Agreements (a) in connection with a specific
investment(s) by or on behalf of the Financing Credit Parties in
Portfolio Companies approved by the Investment Committee, and (b)
in accordance with the limitations and conditions in any
Financing Arrangement;
(9) (a) fees to members of the Investment Committee or the Advisory
Committee (or any subcommittee thereof) who are not Affiliated
with either Organizer or any of their respective Affiliates, and
(b) reimbursement to such members, including to OPIC for OPIC's
representative, of the travel and other out-of-pocket expenses
incurred in connection with attendance at Investment Committee or
Advisory Committee (or subcommittee thereof) meetings;
(10) payments and reimbursements to any lender for costs and expenses
incurred in accordance with and in connection with the
implementation of any Financing Arrangement and the monitoring
and enforcement of such lender's rights thereunder;
(11) the fees and expenses of outside counsel and business advisors of
any lender;
(12) fees assessed by any lender from time to time in accordance with
Financing Arrangements in connection with any amendment,
modification or waiver of any financing agreements and any effort
by the lender (of a non-recurring nature) to enforce its rights
thereunder;
(13) fees and expenses payable in accordance with Financing
Arrangements to any party to any such Financing Arrangements;
(14) fees, expenses, debt service and other amounts payable in
accordance with the Project Documents to any creditor in respect
of indebtedness due to such creditor;
(15) the fees and expenses of agents for service of process engaged by
any Financing Credit Party in accordance with the Agreement or
the Security Documents or any other Financing Arrangements;
(16) the expenses incurred by the Fund in conducting any meetings of
its Members, including the reimbursement of reasonable costs and
expenses
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incurred by any Member (other than a Member that is an Affiliate
of either Organizer) in connection with any such meetings;
(17) fees, costs and expenses incurred by any Financing Credit Party,
other than to an Affiliate of any Financing Party, for or in
connection with (a) the acquisition of any Project, including
without limitation (i) pre-development activities for the
relevant Project, including, without limitation, the costs
incurred in obtaining approvals of such Project from the
applicable Governmental Authorities, (ii) construction of the
Project, (iii) marketing and leasing of the Project, (iv) ongoing
maintenance of the improvements in respect of any Project and (v)
costs incurred in connection with the making of capital
improvements to the Projects; (b) to the extent not otherwise
covered in this Section II, operating and other expenses payable
to Persons not Affiliated with either of the Organizers or any of
their respective Affiliates; and (c) the disposition of any
Project;
(18) the costs and expenses of the Financing Credit Parties in
performing indemnification obligations in accordance with
Financing Arrangements;
(19) any other cost or expense (a) payable to Persons not Affiliated
with either Organizer or any of their respective Affiliates, (b)
relating to the business, operations or investments of the
Portfolio Holding Companies and Controlled Portfolio Companies,
and (c) not otherwise excluded above (such as costs and expenses
of services provided by any Person to the Managing Member, the
Special Member, PREA, TPG or any of their respective Affiliates
not constituting a Portfolio Holding Company or Controlled
Portfolio Company);
(20) taxes, fees or other charges imposed by Governmental Authorities
on the Financing Credit Parties; and
(21) to the extent not covered above, with respect to costs and
expenses of the nature described in clauses (1) through (20)
above that are incurred by or on behalf of any Portfolio Company
that is not a Controlled Portfolio Company, the Fund's allocable
share of such costs and expenses.
**********
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