Exhibit D
_______________________________
CERTIFICATE OF DESIGNATION
Pursuant to Sections 3.2 and 3.3 of the Limited Liability Company Agreement
______________________________
Preferred Interests
FORTRESS PINNACLE INVESTMENT FUND LLC, a Delaware limited
liability company (the "Fund"), does hereby create and establish Preferred
Interests and the amount thereof and the powers, preferences, duties,
liabilities and obligations thereof are hereby fixed as follows:
Section 1. Designation and Amount. The Fund hereby creates and
establishes a class of preferred limited liability company equity interests
(the "Preferred Interests") which shall have a liquidation preference not to
exceed $120,000.
Section 2. Dividends. Holders of Preferred Interests shall be
entitled to receive when, as and if declared by the Board of Managers of the
Fund, or a duly authorized committee thereof, cumulative dividends at the rate
of 10% per year. Dividends on the Preferred Shares so declared shall be paid
in preference to and in priority over any dividends declared and payable on
the Fund's common limited liability company equity interests (the "Shares").
Notwithstanding the foregoing, no dividends may be paid if after giving effect
to the payment of such dividend the Fund would not be able to pay its debts as
such debts become due in the ordinary course of business or the Fund's total
assets would be less than the sum of its total liabilities.
Section 3. Liquidation Rights. The Preferred Interests will have a
liquidation preference equal to $500 per Preferred Interest plus accumulated
and unpaid dividends and will be redeemable at the option of the Fund in whole
or in part at any time from the date of issuance at a value equal to the
liquidation preference calculated as of the date of redemption.
Section 4. Asset Coverage. Immediately after issuance, the Preferred
Interests will have an asset coverage of 200%, as required under the
Investment Company Act of 1940, as amended (the "Investment Company Act").
Furthermore, the Board of Managers may not declare any dividend or make any
distribution upon the Shares unless the Preferred Interests have, at the time
of such dividend or
distribution, an asset coverage of at least 200% after deducting the amount
of such dividend or distribution.
Section 5. Voting Rights. The Preferred Interests will have no voting
rights; provided that the Preferred Interests will have the right to (a) elect
two managers of the Fund at all times and to elect a majority of managers if
at any time dividends on the Preferred Interests are unpaid in an amount equal
to two full years' dividends and to be so represented until all dividends in
arrears have been paid or otherwise provided for; and (b) vote as a class on
any plan of reorganization adversely affecting such securities or on any
matter requiring a vote of security holders under Section 13(a) of the
Investment Company Act. On matters on which the Preferred Interests are
entitled to vote, each Preferred Interest shall have one vote.
Section 6. Other Rights or Preferences. Unless otherwise required by
law, the holders of Preferred Interests shall not have any rights or
preferences other than those set forth herein or in the Fund's Limited
Liability Company Agreement.
2
IN WITNESS WHEREOF, FORTRESS PINNACLE REGISTERED INVESTMENT FUND LLC
has caused this Certificate to be signed by Xxxxxx X. Xxxxx, Chairman and
Chief Executive Officer, and attested by Xxxxxx X. Xxxxxxx, Secretary, this
10th day of October, 2002.
FORTRESS PINNACLE INVESTMENT FUND LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
Chairman and Chief Executive Officer
Attest:
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Xxxxxx X. Xxxxxxx
Vice President, Chief Operating Officer
and Secretary
3
