iv
___________________________________________________________
___________________________________________________________
XXXXXXXXXXX MASTER LOAN FUND, LLC
-----------------
Limited Liability Company Agreement
-----------------
Dated as of October 25, 2007
___________________________________________________________
___________________________________________________________
UNITS IN XXXXXXXXXXX MASTER LOAN FUND, LLC (THE "COMPANY") HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER APPLICABLE STATE SECURITIES LAWS. UNITS IN THE COMPANY ARE INTENDED TO BE ACQUIRED FOR
INVESTMENT, AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED WITHOUT AN EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE SECURITIES ACT
OF 1933, AS AMENDED, OR UNLESS AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT IS AVAILABLE.
i
TABLE OF CONTENTS
Page
ARTICLE I Definitions; Rules of Interpretation...................................................................1
Section 1.1 Definitions............................................................................1
Section 1.2 Rules of Interpretation................................................................4
ARTICLE II Organizational Matters................................................................................5
Section 2.1 Organization...........................................................................5
Section 2.2 Company Name; Registered Office and Agent..............................................5
Section 2.3 Principal Office.......................................................................5
Section 2.4 Purpose. 5
Section 2.5 Powers. 6
Section 2.6 Term........................................................................6
ARTICLE III Board of Directors...................................................................................6
Section 3.1. Number of Directors and Qualification..................................................6
Section 3.2. Term and Election......................................................................6
Section 3.3. Resignation, Retirement and Removal....................................................7
Section 3.4. Vacancies..............................................................................7
Section 3.5. Meetings...............................................................................7
Section 3.6. Officers; Chairman.....................................................................8
Section 3.7. By-Laws. 8
ARTICLE IV Powers of Directors...................................................................................8
Section 4.1 General................................................................................8
Section 4.2 Powers of Board of Directors...........................................................8
Section 4.3 Legal Title...........................................................................10
Section 4.4 Sale of Units; Reclassification.......................................................10
Section 4.5 Collection and Payment................................................................10
Section 4.6 Expenses..............................................................................10
Section 4.7 Tax Matters...........................................................................10
Section 4.8 Exempt Members........................................................................11
Section 4.9 Borrowing Money; Pledging Company Assets; Lending Property............................11
Section 4.10 Litigation............................................................................11
Section 4.11 Miscellaneous Powers..................................................................11
Section 4.12 Delegation; Committees................................................................11
Section 4.13 General Powers........................................................................12
Section 4.14 Manner of Acting......................................................................12
ARTICLE V Members; Limited Liability............................................................................12
Section 5.1 Schedule of Members...................................................................12
Section 5.2 Liability of Members..................................................................12
Section 5.3 Member Participation; Voting..........................................................13
Section 5.4 Representations and Warranties of Members.............................................13
ARTICLE VI Management and Service Arrangements..................................................................13
Section 6.1 Administrative and Other Services Arrangements........................................13
Section 6.2 Advisory Arrangements.................................................................13
Section 6.3 Non-related Activities of the Adviser:................................................15
Section 6.4 Parties to Contract...................................................................15
Section 6.5 Custodian.............................................................................15
ARTICLE VII Advisory Fee; Other Expenses........................................................................16
Section 7.1 Advisory Fee..........................................................................16
Section 7.2 Other Fees and Expenses of the Company................................................16
ARTICLE VIII Units and Unit Values..............................................................................16
Section 8.1 Units.......................................................................................16
Section 8.2 Valuation of Units....................................................................16
Section 8.3 Classes of Units......................................................................16
Section 8.4 Subdivision and Combination of Units..................................................17
Section 8.5 Rights of Members.....................................................................17
ARTICLE IX Capital Accounts.....................................................................................17
Section 9.1 Capital Accounts......................................................................17
Section 9.2 Capital Account Balances..............................................................17
Section 9.3 Allocations and Distributions to Members..............................................18
Section 9.4 Power to Modify Foregoing Procedures..................................................18
Section 9.5 Consistent Tax Reporting. ............................................................18
ARTICLE X Capital of the Company; Benefit Plan Investors........................................................18
Section 10.1 Contributions Generally...............................................................18
Section 10.2 Xxxxxx of Contribution................................................................19
Section 10.3 Interest and Xxxxxxxxxx...............................................................19
ARTICLE XI Increases in Company Subscriptions; Admission of Additional Members..................................19
Section 11.1 Additional Subscriptions..............................................................19
Section 11.2 Documentation, Effectiveness and Admission............................................19
ARTICLE XII Distributions.......................................................................................19
Section 12.1 Distributions Generally...............................................................19
Section 12.2 Distributions in Cash or in Kind......................................................20
Section 12.3 Limitations on Distribution...........................................................20
ARTICLE XIII Withdrawal of Company Interests....................................................................20
Section 13.1 Decreases and Withdrawals.............................................................20
Section 13.2 Limitation on Right to Withdraw.......................................................20
Section 13.3 Manner of Withdrawal..................................................................20
Section 13.4 Mandatory Withdrawal..................................................................20
Section 13.5 Redemption in Cash or Securities......................................................21
Section 13.6 Redemption and Payment Dates..........................................................21
ARTICLE XIV Prohibition on Assignability of Interests of Members................................................21
Section 14.1 Transfers.............................................................................21
Section 14.2 Tax and Securities Laws...............................................................21
ARTICLE XV Valuation of Company Assets..........................................................................21
Section 15.1 Valuation.............................................................................21
Section 15.2 Timing of Valuation and Valuation Rules...............................................22
Section 15.3 Net Asset Value.......................................................................22
Section 15.4 Unusual Market Conditions.............................................................22
Section 15.5 Company Name and Goodwill.............................................................22
ARTICLE XVI Tax Matters Member..................................................................................22
Section 16.1 Tax Matters Member....................................................................22
ARTICLE XVII Liability; Indemnification; Other Business Ventures................................................22
Section 17.1 No Personal Liability of Directors, Officers, etc.....................................22
Section 17.2 Indemnification of Directors, Officers, etc...........................................23
Section 17.3 No Bond Required of Directors.........................................................24
Section 17.4 No Duty of Investigation; Notice in Company Instruments, etc..........................24
Section 17.5 Insurance.............................................................................24
Section 17.6 Reliance on Experts, etc..............................................................24
Section 17.7 Accounting............................................................................24
Section 17.8 No Protection Against Certain Investment Company Act Liabilities......................24
ARTICLE XVIII Fiscal Year; Records and Reports; Accounting Method...............................................25
Section 18.1 Fiscal Year...........................................................................25
Section 18.2 Books and Records.....................................................................25
Section 18.3 Delivery of Financial Statements, Tax Returns and Reports.............................25
Section 18.4 Delivery of Unit Valuation and Investment Reports.....................................25
Section 18.5 Method of Accounting..................................................................25
Section 18.6 Accounting Firm.......................................................................25
ARTICLE XIX Dissolution.........................................................................................26
Section 19.1 Dissolution...........................................................................26
Section 19.2 Right to Continue.....................................................................26
Section 19.3 Termination...........................................................................26
ARTICLE XX Liquidation of Company Interests.....................................................................26
Section 20.1 Liquidator............................................................................26
Section 20.2 Liquidation and Distribution; Order of Distribution...................................26
Section 20.3 Return of Contribution Solely Out of Company Assets...................................26
Section 20.4 Authorization; Expenses...............................................................27
Section 20.5 Liability; Consultation...............................................................27
Section 20.6 Capital Contributions.................................................................27
ARTICLE XXI General Provisions..................................................................................27
Section 21.1 Company Name upon Withdrawal of OppenheimerFunds, Inc.................................27
Section 21.2 Notices. 27
Section 21.3 Power of Attorney.....................................................................27
Section 21.4 Power of Attorney by Substituted Members..............................................28
Section 21.5 Additional Documents..................................................................28
Section 21.6 Binding Effect; Creditors.............................................................28
Section 21.7 Counterparts..........................................................................29
Section 21.8 Action by the Members.................................................................29
Section 21.9 Voting. 29
Section 21.10 Governing Law; Venue..................................................................29
Section 21.11 No Partition..........................................................................29
Section 21.12 Securities Act Matters................................................................30
Section 21.13 Further Information and Documents.....................................................30
Section 21.14 Matters Not Provided For; Compliance with Law.........................................30
Section 21.15 Severability..........................................................................30
Section 21.16 Indirect Action.......................................................................30
Section 21.17 Survival..............................................................................30
ARTICLE XXII Amendment..........................................................................................31
Section 22.1 Amendment.............................................................................31
32
1
XXXXXXXXXXX MASTER LOAN FUND, LLC
LIMITED LIABILITY COMPANY AGREEMENT
This Limited Liability Company Agreement (the "Agreement") of Xxxxxxxxxxx Master Loan Fund, LLC (the
"Company"), dated as of October 25, 2007, is entered into by and among Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxx,
Xxxxxx X. Xxxxxxx, Xxx X. Xxxxxx, Xxx Xxxxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, and X.
Xxxxxxx Xxxxxxxx, Xx. as the Directors of the Company, OppenheimerFunds, Inc., as the Organizational Member of
the Company ("OFI"), and each person admitted from time to time as a member pursuant to Article XI (each
individually a "Member" and collectively, the "Members").
WHEREAS, the Fund has heretofore been formed as a limited liability company under the Delaware Act
pursuant to an initial Certificate of Formation (the "Certificate") dated and filed with the Secretary of State
of Delaware on August 28, 2007;
WHEREAS, the Certificate was executed by OFI acting in its capacity as Adviser (denominated as the
"Manager" for purposes of the Certificate);
NOW, THEREFORE, for and in consideration of the foregoing and the mutual covenants hereinafter set
forth, it is hereby agreed as follows:
ARTICLE I
Definitions; Rules of Interpretation
Section 1.1 Definitions. As used herein, the following terms shall have the following meanings:
"Accounting Period" means the Company's Fiscal Year or any period of shorter duration beginning on the
first day following the last day of the immediately preceding Accounting Period and ending on any other day as
the Board shall determine.
"Additional Units" shall have the meaning set forth in Section 10.1.
"Additional Members" shall have the meaning set forth in Section 10.1.
"Administrator" means any party furnishing services to the Company pursuant to any administrative
services contract described in Section 6.1.
"Adviser" means the Person engaged to provide investment advisory services to the Company pursuant to
Section 6.2.
"Advisory Fee" shall have the meaning set forth in Section 7.1.
"Affiliate" or "Affiliated Person" shall the meaning assigned to it in Section 2(a)(3) of the Investment
Company Act.
"Agreement" shall mean this Limited Liability Company Agreement, as amended from time to time.
"Board of Directors" or "Board" or "Directors" means the Board of Directors as from time to time duly
elected or appointed, qualified, as set forth in Article III, and the Persons serving as Directors in accordance
with the provisions hereof, and reference herein to a Director or the Directors shall refer to such individual or
Persons in their capacity as "managers" within the meaning of the Delaware Act hereunder.
"Business Day" shall mean any day identified as a regular business day in the Company's Registration
Statement.
"By-Laws" means the By-Laws referred to in Section 3.7, as amended and in effect from time to time.
"Capital Account" shall have the same meaning set forth in Section 9.1.
"Capital Contribution" of a Member shall mean that amount of capital actually contributed or deemed to
have been contributed by the Member to the Company.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations
promulgated and the rulings issued thereunder.
"Commission" means the U.S. Securities and Exchange Commission.
"Company" means the limited liability company that is the subject of this Agreement.
"Company Expenses" shall have the meaning set forth in Section 7.2.
"Company Property" means as of any particular time any and all property, real or personal, tangible or
intangible, which at such time is owned or held by or for the account of the Company.
"Custodian" means the party, other than the Company, to the agreement described in Section 6.5.
"Delaware Act" means the Limited Liability Company Act of the State of Delaware, 6 Del. X.xx.xx. 18-101 et
seq., as amended from time to time.
"Fiscal Year" shall have the meaning set forth in Section 18.1.
"Former Member" shall have the meaning set forth in Section 18.3.
"Fundamental Policies" means the investment policies and restrictions of the Company that are set forth
and designated as fundamental policies in the Registration Statement.
"Impermissible Event" shall mean any event which would: (a) cause the Company not to qualify for an
exemption from regulation under the Commodity Exchange Act (if the Company is then relying on such exemption); or
(b) cause a violation under any Law or any contractual provision to which the Company or any of its property is
subject.
"Increasing Member" shall have the meaning set forth in Section 10.1.
"Initial Contribution Date" shall have the meaning set forth in Section 8.2.
"Interested Person" has the meaning ascribed to it in Section 2(a)(19) of the Investment Company Act.
"Investment Advisory Agreement" shall mean the separate written agreement entered into by the Fund
pursuant to which the Adviser provides investment advisory services to the Company.
"Investment Company Act" or "1940 Act" shall mean the Investment Company Act of 1940, as amended from
time to time, and the regulations promulgated and the rulings issued thereunder.
"Law" shall mean any law, regulation (temporary or final), administrative rule or procedure,
self-regulatory organization rule or interpretation, or exchange rule or procedure binding upon, or which the
Adviser reasonably determines may be binding upon (in each case, as applicable in light of the context), any
Member, the Company, any OFI Party or any Affiliate of any of the foregoing or to which any of their property is
subject.
"Member" means as of any particular time each Person that is listed as a holder of record of Units in
the Company as a Member in the Company's books and records.
"Net Asset Value" shall have the meaning set forth in Section 15.3.
"NYSE" means the New York Stock Exchange.
"OFI Party" means OFI and any Affiliated Person of OFI.
"Organizational Member" shall mean OppenheimerFunds, Inc.
"Person" shall mean an individual or a corporation (including a business trust), partnership, limited
partnership, limited liability company, trust, incorporated or unincorporated association, joint stock company,
government (or an agency or political subdivision thereof) or other entity of any kind.
"Redeemed Unit" shall have the meaning set forth in Section 13.4.
"Redeeming Member" shall have the meaning set forth in Section 13.1.
"Registration Statement" means any Registration Statement filed by the Company under the Investment
Company Act, as it may be amended or supplemented from time to time.
"Securities Act" shall mean the Securities Act of 1933, as amended from time to time, and the
regulations promulgated and the rulings issued thereunder.
"Security" shall include without limitation, equities, debt obligations, loans, options, and other
"securities" (as that term is defined in Section 2(a)(36) of the Investment Company Act) and any contracts for
forward or future delivery of any security, debt obligation or currency, or commodity, all types of derivative
instruments and financial instruments and any contracts based on any index or group of securities, debt
obligations or currencies, or commodities, and any options thereon.
"Tax Item" means the Company's income, gain, loss, deduction or tax credits for the Company's taxable
year or other applicable Accounting Period or any specific items thereof.
"Tax Matters Member" shall have the meaning set forth in Section 16.1.
"Transfer" shall have the meaning set forth in Section 14.1.
"Units" shall have the meaning set forth in Section 8.1.
"Unit Percentage" means the fraction, expressed as a percentage, equal to the balance in a Member's
Capital Account divided by the aggregate balances of all Members' Capital Accounts.
"United States" means the United States of America, its states, territories, and possessions, and any
enclave of the United States government, its agencies, or instrumentalities. The following persons are not
considered to be "United States persons": (1) a natural person who is not a resident of the United States; (2) a
partnership, corporation, or other entity, other than an entity organized principally for passive investment,
organized under the laws of a non-U.S. jurisdiction and that has its principal place of business in a non-U.S.
jurisdiction; (3) an estate or trust, the income of which is not subject to U.S. federal income tax regardless of
source, provided that no executor or administrator of such an estate or trustee of such a trust, as the case may
be, is a "United States person;" (4) an entity, organized under the laws of a foreign jurisdiction and that has
its principal place of business in a foreign jurisdiction, provided that: such entity was not formed by a United
States person principally for the purpose of investing in securities not registered under the Securities Act
(unless it was organized or incorporated and is owned exclusively by "accredited investors," as defined in
Commission rules, who are not natural persons, estates, or trusts); and (5) a pension plan for the employees,
officers, or principals of an entity organized and with its principal place of business outside the United
States, provided that such plan is established and administered in accordance with the laws of a country other
than the United States and customary practices and documentation of such country.
Section 1.2 Rules of Interpretation. The following shall apply to the interpretation of this Agreement:
(a) References to sections shall be to sections of this Agreement unless otherwise specified.
(b) "May" shall be construed as permissive.
(c) A "month" or a "quarter" means a calendar month or quarter (as the case may be).
(d) A "notice" means written notice unless otherwise stated.
(e) "Shall" shall be construed as imperative.
(f) Writing includes typewriting, printing, lithography, photography and other modes of representing or
reproducing words in a legible and non-transitory form.
(g) The term "and/or" is used herein to mean both "and" as well as "or." The use of "and/or" in certain
contexts in no respects qualifies or modifies the use of the terms "and" or "or" in others. "Or" shall not be
interpreted to be exclusive, and "and" shall not be interpreted to require the conjunctive - in each case, unless
the context otherwise requires.
(h) Article and section headings herein have been inserted for convenience of reference only, are not a part
of this Agreement and shall not be used in construing this Agreement.
(i) The terms "include" and "including" and words of similar import are to be construed as non-exclusive (so
that, by way of example and for the avoidance of doubt, "including" shall mean "including without limitation").
(j) Unless the context of this Agreement otherwise requires, (i) words using singular or plural number also
include the plural or singular number, respectively, (ii) the terms "hereof," herein," "hereby" and derivative or
similar words refer to the entire Agreement, (iii) the masculine gender shall include the feminine and neuter,
(iv) any reference to a Law, agreement or a document shall be deemed also to refer to any amendment, supplement
or replacement thereof, and (v) whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless such reference specifies Business Days.
(k) Terms defined in this Agreement by reference to any other agreement, document or instrument shall have
the meanings assigned to them in such agreement, document or instrument whether or not such agreement, document
or instrument is then in effect.
(l) No provision of this Agreement shall be construed in favor of or against any Person by reason of the
extent to which any such Person, its Affiliates or their respective employees or counsel participated in the
drafting thereof.
ARTICLE II
Organizational Matters
Section 2.1 Organization. The Company is a limited liability company formed pursuant to the Delaware Act
and the provisions of this Agreement. The rights, powers, duties, obligations and liabilities of the Members
shall be determined pursuant to the Delaware Act and this Agreement. To the extent that the rights, powers,
duties, obligations and liabilities of any Member are different by reason of any provision of this Agreement than
they would be in the absence of such provision, this Agreement shall, to the extent permitted by the Delaware
Act, control.
Section 2.2 Company Name; Registered Office and Agent. The name of the Company is "Xxxxxxxxxxx Master Loan
Fund, LLC". The Board of Directors may change the name of the Company from time to time, promptly notifying the
Members of any such change. The initial address of the Company's registered office in Delaware is at Corporation
Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, and its initial registered agent at such address
for service of process is The Corporation Trust Company.
Section 2.3 Principal Office. The principal office of the Company shall be located at 0000 Xxxxx Xxxxxx
Xxx, Xxxxxxxxxx, Xxxxxxxx 00000. The Board of Directors may change the location of the principal office at any
time, upon notice to all Members indicating the new location of such principal office.
Section 2.4 Purpose.
(a) The Company may engage, directly and indirectly, in all aspects of investing and trading, as well as
otherwise participating as an active or passive investor in other investment entities, operating businesses
and/or other business enterprises. For the avoidance of doubt, there is no limitation imposed by this Agreement
on the markets or instruments in which the Company may trade, the market sectors of the issuers of Securities or
other investments in which the Company may invest or trade, or the investment or trading strategies that the
Company may apply. The Company may: trade, borrow, and invest in all manner of investment assets; sponsor,
manage, own interests in and/or participate in domestic and foreign entities, subsidiaries and/or Persons (as
defined below); engage in the business of acting as a market maker, broker or dealer in all manner of investment
assets and other property (and contract rights relating thereto); and transact all other businesses and
activities as may be desirable, necessary, advisable or incidental to the Company's business of investing and
trading, as the Board of Directors may determine.
(b) Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as
authorizing the Company to possess any purpose or power, or to do any act or thing, forbidden by Law to a limited
liability company organized under the laws of the State of Delaware or an investment company registered under the
Investment Company Act, and the regulations promulgated and the rulings issued thereunder.
Section 2.5 Powers. Subject to all of the terms and provisions hereof, the Company shall have the powers
and authority to take any and all actions necessary, appropriate, proper, advisable or incidental to or for the
furtherance of the purposes set forth in Section 2.4, including, but not limited to, the powers:
(a) Securities Investments: to purchase or otherwise acquire, sell, hold, invest, re-invest, transfer and
trade in Securities (as defined herein);
(b) Other Investments: to make such other investments from time to time as may be appropriate and which are
not prohibited investments under the laws of the State of Delaware, the Investment Company Act or the
Registration Statement of the Company as currently in effect at such time.
(c) Other Undertakings: to enter into, deliver, perform and carry out all contracts, instruments and other
undertakings and engage in all activities and transactions as may be necessary or advisable to carry out the
purposes of the Company, including, without limitation, the purchase, sale, transfer and exercise of all rights,
powers, privileges and incidents of ownership or possession with respect to any Company asset or liability;
(d) Maintaining Reserves: to establish and maintain reserves for withdrawals by Members, to pay expenses of
the Company pursuant to Article VII and for similar purposes, and to invest such reserves in money market funds
or money market instruments, including, but not limited to, government obligations, custodial receipts,
certificates of deposit, time deposits and bankers' acceptances, commercial paper, master demand notes,
short-term corporate debt securities and repurchase agreements; and
(e) Other Powers: otherwise to have all the powers available to it as a limited liability company under the
laws of the State of Delaware.
Section 2.6 Term. The Company shall commence at the time of the filing of the Certificate of Formation in
the office of the Delaware Secretary of State. The Company shall have perpetual duration, subject to dissolution
as provided in Article XIX.
ARTICLE III
Board of Directors
Section 3.1. Number of Directors and Qualification. The number of Directors shall initially be nine
(9) and shall thereafter be such number as shall be fixed from time to time by the Directors as governed by the
provisions relating thereto in the By-Laws. Each Director shall be a natural person. A Director need not be a
citizen of the United States or a resident of the State of Delaware. Each Director is hereby a "manager" within
the meaning of the Delaware Act.
Section 3.2.......Term and Election. Each Director named herein, or elected or appointed prior to the
first meeting of the Members, shall (except in the event of resignations or removals or vacancies pursuant to
Section 3.3 or Section 3.4) hold office until his successor has been elected at such meeting and has qualified to
serve as Director, as required under the Investment Company Act. Except as provided in Section 3.3 below, each
Director shall hold office until the next meeting of Shareholders called for the purpose of considering the
election or re-election of such Director or of a successor to such Director, and until his successor, if any, is
elected, qualified and serving as a Director hereunder. Any Director vacancy may be filled by the affirmative
vote or consent of a majority of the Directors then in office, except as prohibited by the 1940 Act, or, if for
any reason there are no Directors then in office, vacancies may be filled by the officers of the Company, or may
be filled in any other manner permitted by the 1940 Act.
Section 3.3. Resignation, Retirement and Removal. Any Director may resign or retire as a Director
by an instrument in writing signed by him and delivered or mailed to the Chairman, if any, the President or the
Secretary, and such resignation or retirement shall be effective upon such delivery, or at a later date according
to the terms of the instrument. The Directors may adopt policies from time to time relating to the terms of
office and or retirement of the Directors. Any Director who has become incapacitated by illness or injury as
determined by a majority of the other Directors or declared incompetent by a court of appropriate jurisdiction,
may be retired by written instrument signed by a majority of the other Directors. Except as aforesaid, any
Director may be removed from office only (i) by action of at least two-thirds (2/3) of the voting power of the
Members, or (ii) by the action of at least two-thirds (2/3) of the remaining Directors, specifying the date when
such removal shall become effective. Except to the extent expressly provided in a written agreement to which the
Company is a party or in a written policy adopted by the Directors, no resigning or removed Director shall have
any right to any compensation for any period following his resignation or removal, or any right to damages on
account of such resignation or removal.
Section 3.4. Vacancies. The death, resignation, retirement, removal, or incapacity of one or more
of the Directors, or all of them, shall not operate to annul the Company or to revoke any existing agency created
pursuant to the terms of this Agreement. Whenever a vacancy in the number of Directors shall occur, until such
vacancy is filled as provided herein, or the number of Directors as fixed is reduced, the Directors in office,
regardless of their number, shall have all the powers granted to the Directors, and during the period during
which any such vacancy shall occur, only the Directors then in office shall be counted for the purposes of the
existence of a quorum or any action to be taken by such Directors.
Section 3.5. Meetings. Regular meetings of the Board of Directors may be held on such notice at
such place or places and times as may be fixed by the By-Laws or by resolution of the Board. Special Meetings of
the Directors shall be held upon the call of the Chairman, if any, the President, the Secretary, or any Director,
by oral or electronic or written notice duly served on or sent, mailed or sent by telecopy or e-mail to each
Director not less than one day before the meeting. No notice need be given to any Director who attends in person
or to any Director who, in writing signed and filed with the records of the meeting either before or after the
holding thereof, waives notice. Notice or waiver of notice need not state the purpose or purposes of the meeting.
The Directors may act with or without a meeting, subject to the requirements of the Investment Company Act. A
quorum for all meetings of the Directors shall be as fixed by the By-Laws. Unless provided otherwise in this
Agreement, any action of the Directors may be taken at a meeting by vote of a majority of the Directors present
(a quorum being present) or without a meeting by written consent of a majority of the Directors.
Any committee of the Directors, including an executive committee, if any, may act with or without a meeting. A
quorum for all meetings of any such committee shall be as fixed by the By-Laws. Unless provided otherwise in this
Agreement, (i) any action of any such committee may be taken at a meeting by vote of a majority of the members
present (a quorum being present) or without a meeting by written consent of a majority of the members of the
committee and (ii) a Director may vote in person or by proxy, and such proxy may be granted in writing, by means
of electronic transmission or as otherwise permitted by applicable law. A consent transmitted by electronic
transmission by a Director or by a person or persons authorized to act for a Director shall be deemed to be
written and signed for purposes of this Section 3.5. For purposes of this Section 3.5, the term "electronic
transmission" means any form of communication, not directly involving the physical transmission of paper, that
creates a record that may be retained, retrieved, and reviewed by a recipient thereof, and that may be directly
reproduced in paper form by such a recipient through an automated process.
With respect to actions of the Directors and any committee of the Directors, Directors who are Interested Persons
of the Company or otherwise interested in any action to be taken may be counted for quorum purposes under this
Section 3.5 and shall be entitled to vote to the extent permitted by the Investment Company Act.
All or any one or more Directors may participate in a meeting of the Board of Directors or any committee thereof
by means of a conference telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting pursuant to such communications
system shall constitute presence in person at such meeting.
Section 3.6. Officers; Chairman. The Directors shall, from time to time, elect a President, a
Secretary and a Treasurer. The Directors may elect or appoint, from time to time, a Chairman who shall preside at
all meetings of the Board and carry out such other duties as the Board shall designate. The Directors may elect
or appoint or authorize the President to appoint such other officers or agents with such powers as the Board may
deem to be advisable. The President, the Secretary and the Treasurer may, but need not, be Directors.
Section 3.7. By-Laws. The Board of Directors may adopt By-Laws not inconsistent with this Agreement
for the conduct of activities of the Company and may amend or repeal such By-Laws in the event of any
inconsistency between this Agreement and the By-Laws this Agreement controls.
ARTICLE IV
Powers of Directors
Section 4.1 General. Subject to the rights and powers of the Members set forth in this Agreement and under
the Delaware Act, the management, policies and control of the Company shall be vested in the Board of Directors.
The Board of Directors shall have exclusive and absolute authority and control over the Company Property and over
the activities of the Company to the fullest extent permitted by the Delaware Act and other applicable Law, but
with such powers of delegation as may be permitted by this Agreement. The Board of Directors shall have power to
conduct the activities of the Company and to carry on their operations and maintain offices both within and
without the State of Delaware, in any and all states of the United States of America, and in the District of
Columbia, in any foreign country, and in any and all commonwealths, territories, dependencies, colonies,
possessions, agencies or instrumentalities of the United States of America and of foreign governments, and to do
all such other things and execute all such instruments as they deem necessary, proper or desirable in order to
promote the interests of the Company although such things are not herein specifically mentioned. Any
determination as to what is in the interests of the Company made by the Board of Directors in good faith shall be
conclusive. In construing the provisions of this Agreement, the presumption shall be in favor of a grant of power
to the Board of Directors. The Board of Directors will not be required to obtain any court order to deal with
Company Property. The enumeration of any specific power herein shall not be construed as limiting the aforesaid
powers. Such powers of the Directors may be exercised without order of or resort to any court.
Section 4.2 Powers of Board of Directors. Subject to the provisions of this Agreement, the Board of
Directors shall have the power on behalf and in the name of the Company to carry out and implement any and all of
the purposes and powers of the Company set forth in Sections 2.4 and 2.5, including, without limitation, the
power to:
(a) Agreements with Third Parties. cause the Company to enter into contracts with third parties for the
making of investments by or the provision of services to the Company, including contracts pursuant to which the
Company may be required to indemnify such third parties for certain losses and expenses incurred by such third
parties in connection with making of investments by or the providing services to the Company;
(b) Participation in Reorganizations, Mergers, etc. participate in any plan of reorganization,
consolidation, merger, combination, liquidation or other similar plan relating to Securities or other property
and vote, give assent to, or oppose, any such plan or any action thereunder, or any contract, lease, mortgage,
purchase, sale or other action by any person, corporation or other business organization;
(c) Exercising Conversion and Other Rights. exercise all conversion, subscription or other rights, whether
or not discretionary, pertaining to any Securities or other property held by the Company;
(d) Custody of Assets. register or cause to be registered any Securities or other investments held by the
Company in the name of a nominee, with or without the addition of words indicating that such Securities are held
in a fiduciary capacity, or in the name of a nominee of any custodian bank acting pursuant to Section 6.5 or of a
depository or clearing corporation, or other system for the central handling of Securities or other investments;
and hold any such investment in bearer form;
(e) Maintaining Offices. maintain one or more offices within or without the State of Delaware and in
connection therewith rent or acquire office space and do such other acts as may be advisable in connection with
the maintenance of such offices; provided, however, that maintaining such offices, renting or acquiring office
space and doing any such other acts shall not affect the limited liability of the Members as set forth in Article
V;
(f) Authority to Buy and Sell Property. possess, receive, buy, sell, exchange, trade, receipt for, dispose
of and deal in all Securities or other investments, checks, money and other assets or liabilities of the Company;
(g) Voting. vote, give assent and otherwise to exercise all rights, powers, privileges and other incidents
of ownership or possession with respect to the Securities, other investments or other assets of the Company, and
to execute and deliver proxies or powers of attorney to such person or persons as the Directors shall deem
proper, granting to such person or persons such power and discretion with relation to Securities or other assets
as the Directors shall deem proper;
(h) Voting Trust and Other Rights. join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any security with, or transfer any
security or other investment to, any such committee, depositary or trustee, and to delegate to them such power
and authority with relation to any security or other investment (whether or not so deposited or transferred) as
the Directors shall deem proper;
(i) Filings. file with the appropriate public authorities and, if required, record and/or publish the
Certificate of Formation of the Company and any amendments thereto and take all such other action as may be
required to preserve the limited liability of the Members in any jurisdiction in which the Company shall transact
business;
(j) Registration. file with the Commission the Registration Statement of the Company and any amendments
thereto as may be required to register and maintain the Company as an open-end management investment company
under the Investment Company Act and make any filings or take any other such actions as may be necessary to
qualify the Units of the Company for sale in any jurisdiction in which such Unit are sold.
Section 4.3 Legal Title. Legal title to all the Company Property shall be vested in the Company as a
separate legal entity, except that the Directors shall have power to cause legal title to any Company Property to
be held by or in the name of one or more of the Directors on behalf of the Company, or in the name of any other
Person as nominee on behalf of the Company, on such terms as the Directors may determine; provided, that the
interest of the Company therein is appropriately protected.
Section 4.4 Sale of Units; Reclassification. The Directors shall have the power to cause the Company to
acquire, hold, resell, dispose of, transfer, classify, reclassify and otherwise deal in Units of the Company. The
Directors may cause the Company to hold as treasury Units (without such Units being deemed to be canceled),
re-issue for such consideration and on such terms as they determine, or cancel, in their discretion from time to
time, any Units in any class thereof reacquired by the Company.
Section 4.5 Collection and Payment. The Directors shall have power on behalf of the Company to collect all
property due to the Company; to pay all claims, including taxes, against the Company Property; to prosecute,
defend, compromise or abandon any claims relating to the Company Property; to foreclose any security interest
securing any obligations by virtue of which any property is owed to the Company; and to enter into releases,
agreements and other instruments.
Section 4.6 Expenses. The Directors shall have the power to incur and pay, out of the capital or income of
the Company, or partly out of capital and partly out of income, as the Directors deem fair, any expenses which,
in the opinion of the Directors, are necessary or incidental to carrying out any of the purposes of this
Agreement, including expenses and charges for the services of the Company's managers, consultants, auditors,
counsel, custodians, and other agents or independent contractors, and to pay reasonable compensation from the
funds of the Company to themselves as Directors. The Directors shall not be obligated to account to the Members
for the retention of compensation, and each Member agrees that compliance with the accounting requirements of the
Investment Company Act and of this Agreement shall constitute satisfactory accounting with respect to all acts of
the Directors. The Directors shall fix the compensation of all officers, employees and Directors of the Company
and may pay such compensation out of the Company Property without reduction of the Directors' compensation.
Except as otherwise determined by the Directors, all expenses and other items of the Company shall be borne by or
allocated to each Member proportionately based upon the relative net asset value of the Units held by each
Member. Such common items shall include, but not be limited to, Directors' fees; legal fees; custodial fees; fees
associated with any borrowings by the Company; Investment Company Act registration expenses; organizational
expenses of the Company; and accounting expenses relating to the Company.
Section 4.7 Tax Matters. The Directors shall have the exclusive power, authority and responsibility with
respect to the Company regarding (i) preparation and filing of tax returns; (ii) providing reports to the Members
regarding tax information necessary to the filing of their respective tax returns; (iii) making any and all
available elections and determinations with respect to the tax treatment of the Company and its investments under
the tax laws of the United States, the several States or other relevant jurisdictions as to any matter, including
without limitation an election to adjust the basis of the assets of the Company under Section 754 of the Code;
(iv) representing the Company before the Internal Revenue Service and/or any state taxing authority and
exercising the powers and authorities of a tax matters partner under the Code with respect to the Company's tax
returns; (v) exercising such responsibility as may be imposed by law with respect to withholding from a Member's
share of income or distributions; (vi) providing to the accountants of the Company such instructions regarding
allocations of realized income, gains and losses as may be necessary or appropriate to assure compliance by the
Company with applicable provisions of the Code and Treasury Regulations; and (vii) any and all other tax matters.
Section 4.8 Exempt Members. The Board shall use its commercially reasonable best efforts consistent with
the terms of this Agreement to conduct the affairs of the Company in a manner that does not cause any Member
exempt from income taxation pursuant to Section 401 or Section 501 of the Code, to be allocated from the Company
any "unrelated business taxable income" (as that term is defined in Section 512 of the Code) ("UBTI"); provided,
however, that this Section 4.8 shall not limit the ability of the Company to incur indebtedness to the extent
permitted under Section 4.9.
Section 4.9 Borrowing Money; Pledging Company Assets; Lending Property. Subject to any applicable
Fundamental Policies of the Company or any applicable provision of the By-Laws or the Investment Company Act, the
Directors shall have the power, on behalf of the Company, to borrow money or otherwise obtain credit and to
secure the same by mortgaging, pledging or otherwise subjecting as security any of the Company Property, to
endorse, guarantee, or undertake the performance of any obligation, contract or engagement of any other Person
and to lend Company Property.
Section 4.10 Litigation. The Directors shall have the power to engage in and to commence, prosecute, defend,
settle, compromise, abandon, or adjust, by arbitration or otherwise, any actions, suits, proceedings, disputes,
debts, claims, and demands or damages relating to the Company or the Company Property; and represent the Company
in all suits or legal proceedings in any court or before any other body or tribunal; and, out of the Company
Property, to pay or to satisfy any debts, claims or expenses incurred in connection therewith, including those of
litigation, and such power shall include without limitation the power of the Directors or any appropriate
committee thereof, in the exercise of their or its good faith business judgment, consenting to dismiss any
action, suit, proceeding, dispute, claim or demand, brought by any Person, including, to the extent permitted by
applicable law, a Member in such Member's own name or in the name of the Company, whether or not the Company, or
any of the Directors may be named individually therein or the subject matter arises by reason of business for or
on behalf of the Company.
Section 4.11 Miscellaneous Powers. The Directors shall have the power to: (a) employ or contract with such
Persons as the Directors may deem desirable for the transaction of the activities of the Company and eliminate
such employees or contractual relationships as they consider appropriate; (b) cause the Company to enter into
joint ventures, partnerships and any other combinations or associations; (c) remove Directors or fill vacancies
in or add to their number, subject to and in accordance with Section 3.3 and Section 3.4 hereof; elect and remove
at will such officers and appoint and terminate such agents or employees as they consider appropriate; and
appoint from their own number and terminate at will any one or more committees that may exercise some or all of
the power and authority of the Directors as the Directors may determine; (d) purchase, and pay for out of Company
Property, insurance policies insuring the Company Property, and, to the extent permitted by law and not
inconsistent with any applicable provision of this Agreement, insuring the Adviser, Administrator, placement
agent, Members, Directors, officers, employees, agents or independent contractors of the Company against all
claims arising by reason of holding any such position or by reason of any action taken or omitted to be taken by
any such Person in such capacity, whether or not constituting negligence, or whether or not the Company would
have the power to indemnify such Person against such liability; (e) cause the Company to indemnify any person
with whom the Company has dealings, including the Members, Directors, officers, employees, agents, the Adviser,
Administrator, placement agent and independent contractors of the Company, to such extent permitted by law and
not inconsistent with the applicable provisions of this Agreement; (f) cause the Company to subject to applicable
Fundamental Policies, guarantee indebtedness or contractual obligations of others; (g) determine and change the
fiscal year of the Company and the method by which its accounts shall be kept; and (h) adopt a seal for the
Company, but the absence of such seal shall not impair the validity of any instrument executed on behalf of the
Company.
Section 4.12 Delegation; Committees. The Directors shall have power, consistent with their continuing
exclusive authority over the management of the Company and the Company Property, to delegate from time to time to
such committee or committees as they may from time to time appoint from among their own number or to such
officers, employees or agents of the Company, including the Adviser, as they may from time to time designate the
doing of such things and the execution of such instruments either in the name of the Company or the names of the
Directors or otherwise as the Directors may deem expedient.
Section 4.13 General Powers. The Directors shall have the power to conduct, operate and carry on any other
lawful activities which the Directors, in their sole and absolute discretion, consider to be (i) incidental to
the activities of the Company as an investment company, (ii) conducive to or expedient for the benefit or
protection of the Company or the Members, or (iii) calculated in any other manner to promote the interests of the
Company or the Members and generally, do all acts, whether or not expressly authorized, which the Directors may
deem necessary, desirable, advisable, incidental or convenient to the conduct, promotion or attainment of the
purposes of these powers, objects or purposes for the protection of the Company.
Section 4.14 Manner of Acting. Except as otherwise provided herein, in the Investment Company Act or in any
other applicable provision of Law, any action to be taken by the Directors may be taken in the manner set forth
in Section 3.5. Except as set forth specifically in this Agreement, any action that may be taken by the
Directors may be taken by them in their sole discretion and without the vote or consent of Members.
ARTICLE V
Members; Limited Liability
Section 5.1 Schedule of Members. The names and addresses of the Members and their respective contributions
to the capital of the Company (in cash and other assets as permitted under this Section 6.1) shall be set forth
in a schedule maintained at the office of the Company. Such schedule shall be amended from time to time to
reflect (i) any additional capital contributions by such Members, (ii) the admission of any additional Members
and (iii) the withdrawal by any Member of all or any portion of its contribution to the capital of the Company.
Subject to the approval of the Board of Directors, any Member may make its contribution to the capital of the
Company in the form of assets other than cash, which assets shall be valued by the Board at the time of such
contribution in accordance with Article XV.
Section 5.2 Liability of Members. Except as otherwise required by applicable Law or as expressly set forth
in this Agreement, no Member, including the Organizational Member, shall have any personal liability whatever,
whether to the Company, to any of the other Members, to the creditors of the Company or to any other third party,
for the debts, liabilities, commitments or any other obligations of the Company (whether arising in contract,
tort or otherwise) or for any losses of the Company, in each case arising solely by reason of being a Member of
the Company. The creditors of the Company shall have no recourse against any Member. Each Member shall be
responsible only to make a Capital Contribution to the Company and the other payments provided expressly herein.
In case any Member or former Member of the Company shall be held to be personally liable solely by reason of his
being or having been a Member and not because of his acts or omissions or for some other reason, the Member or
former Member (or his heirs, executors, administrators or other legal representatives or in the case of a
corporation or other entity, its corporate or other general successor) shall be entitled out of the assets of the
Company to be held harmless from and indemnified against all loss and expense arising from such liability;
provided, however, there shall be no liability or obligation of the Company arising hereunder to reimburse any
Member for taxes paid by reason of such Member's ownership of any Units or for losses suffered by reason of any
changes in value of any Company assets. The Company shall, upon request by the Member or former Member, assume
the defense of any claim made against the Member for any act or obligation of the Company and satisfy any
judgment thereon.
Section 5.3 Member Participation; Voting. No Member shall participate in the control of the business of the
Company, transact any business for the Company or have any power to sign for or to bind the Company. Members
shall not have the power to vote on any matter under the Delaware Act or otherwise except (i) for the election or
removal of Directors, and (ii) with respect to such additional matters relating to the Company as may be required
by Federal Law or as the Directors may consider and determine necessary or desirable. The Directors may set in
the By-Laws provisions relating to the meetings of the Members and voting at such meetings.
Section 5.4 Representations and Warranties of Members. Each Member (including each Additional Member)
hereby represents and warrants to and acknowledges with the Company and each other Member that: (i) such Member
has such knowledge and experience in financial and business matters and is capable of evaluating the merits and
risks of an investment in the Company and making an informed investment decision with respect thereto; (ii) such
Member is an "accredited investor" as defined in Rule 501 of, or is otherwise a permissible purchaser under,
Regulation D under the Securities Act, and is able to bear the economic and financial risk of an investment in
the Company for an indefinite period of time; (iii) such Member is acquiring or has acquired Units for investment
only and not with a view to, or for resale in connection with, any distribution to the public or public offering
thereof; (v) the interests of the Company have not been registered under the Securities Act, or the securities
laws of any jurisdiction and cannot be disposed of unless they are subsequently registered and/or qualified under
applicable securities laws and the provisions of this Agreement have been complied with; (iv) the execution,
delivery and performance of this Agreement have been duly authorized by such Member and do not require such
Member to obtain any consent or approval that has not been obtained and do not contravene or result in a default
under any provision of any Law applicable to such Member, its charter, bylaws and other governing documents (if
an entity) or any agreement or instrument to which such Member is a party or by which such Member is bound and
(v) this Agreement is valid, binding and enforceable against such Member in accordance with its terms.
ARTICLE VI
Management and Service Arrangements
Section 6.1 Administrative and Other Services Arrangements. The Directors may in their discretion, from
time to time, cause the Company to enter into administrative services contracts or placement agent agreements
whereby the other party to such contract or agreement shall undertake to furnish such administrative, placement
agent and/or other services as the Directors shall, from time to time, consider desirable with respect to the
Company and upon such terms and conditions as the Directors may in their discretion determine.
Section 6.2 Advisory Arrangements. The Directors may in their discretion, from time to time, cause the
Company to enter into an Investment Advisory Agreement with the Adviser to provide certain services including,
but not limited to, the following:
(a) Manage Investment Portfolio: manage the Company's investment portfolio with full discretion to purchase,
sell and exercise voting or consent rights with respect to all instruments, investment vehicles, Securities and
other property in which the Company may invest, on such terms and conditions as the Board may determine from time
to time, all without obtaining the prior consent of the Members or consulting with the Members prior to effecting
any of the foregoing except as required by applicable Law; the Adviser will use its best efforts to select
investments for the Company on the basis of their possibilities for achieving the Company's investment objective,
as set forth in the Company's Registration Statement; and to conduct, operate and carry on the activities of an
investment company, and, in connection therewith:
(i) to subscribe for, purchase or otherwise acquire and invest and reinvest in, to hold for investment
or otherwise, to sell, transfer, assign, negotiate, exchange, lend or otherwise dispose of, and to
turn to account or realize upon and generally deal in and with, domestic or foreign securities; and
(ii) to acquire and become the owner of or interested in any securities by delivering or issuing in
exchange or payment therefor, in any lawful manner, any of the Company Property; and
(iii) to exercise while the owner of any securities or interests therein any and all of the rights,
powers and privileges of ownership of such securities or interests, including without limitation
any and all voting rights and rights of assent, consent or dissent pertaining thereto, and to do
any and all acts and things for the preservation, protection, improvement and enhancement in value
thereof; and
(iv) to purchase, sell and hold currencies and enter into contracts for the future purchase or sale of
currencies, including but not limited to forward foreign currency exchange contracts; and
(v) to enter into futures and forward contracts, and to purchase and write put and call options on
futures contracts, securities, currencies and securities indexes; and
(vi) to make loans to the extent provided in the Registration Statement from time to time; and
(vii) to engage in such other activities as may be disclosed in the Registration Statement from time to
time; and
Notwithstanding anything to the contrary herein contained but consistent with the applicable investment
objectives, the Company shall be managed in compliance with the requirements of the Investment Company Act, the
Investment Advisers Act of 1940, as amended, the Code and other applicable Law. The Company shall not be limited
to investing in securities maturing before the possible dissolution of the Company, nor shall the Company be
limited by any law limiting the investments that may be made by fiduciaries.
(b) Maintaining Accounts: open, maintain and close bank accounts and custodial and sub-custodial accounts
for the Company, draw checks or other orders for the payment of money and transfer of any assets of the Company
to any custodian or sub-custodian employed by it;
(c) Employment of Agents: consistent with applicable Law, to elect, appoint, hire, discharge, remove or
terminate employees and engage such suitable agents, including attorneys, accountants, auditors, custodians,
depositories and other agents as it may deem necessary or advisable for the affairs of the Company, and pay their
reasonable expenses and compensation from Company assets to the extent not otherwise paid by the Adviser with
proceeds received from the Management Fee;
(d) Engagement of Brokers and Dealers: to engage or consult with brokers and dealers, as the Adviser, in its
discretion, shall deem advisable on behalf of the Company, and to open, maintain and close accounts with such
persons or entities, give instructions or directions in connection therewith and pay customary fees and charges
applicable to transactions in all such accounts;
(e) Affiliated Brokerage Arrangements. to enter into brokerage arrangements with any Affiliate of the
Adviser for purposes of such Affiliate executing transactions in Securities on behalf of the Company; provided,
that the Adviser shall comply with the Investment Company Act and with any other applicable Law.
(f) Services to Members. to provide certain services to the Members as may be required; and
(g) Allocation of Investment Opportunities. consistent with its duties under applicable Law, to allocate
investment opportunities of the Company in the Adviser's discretion, provided that:
(i) The Adviser shall use reasonable efforts to allocate or rotate investment opportunities among its
different clients in a manner that the Adviser deems equitable (giving due consideration to the
differences which the Adviser perceives among its various clients).
(ii) The Adviser shall be permitted to aggregate orders for the Company with orders for other clients,
notwithstanding that the effect of such aggregation may, in certain instances, operate to the
disadvantage of the Company.
(iii) The Members acknowledge and agree that by reason of the other business activities of the Adviser
and one or more of its affiliates, the Adviser may not be able, or may determine not, to initiate a
transaction for the Company that the Adviser would otherwise have initiated for the Company.
Section 6.3 Non-related Activities of the Adviser: During the existence of the Company, the Adviser, its
Affiliates, and their respective officers and employees, shall devote such time, effort and skill to the affairs
and business of the Company as the Adviser shall determine to be reasonably required to promote adequately the
interests of the Company and the mutual interests of the Members. It is specifically understood and agreed that
neither the Adviser nor any such Affiliate, officer or employee shall be required to devote any specific portion
of its or his or her business time to the affairs and business of the Company. The Members acknowledge that the
Adviser, its Affiliates, and their respective officers and employees may be involved in and devote a substantial
amount of their business time to other financial, investment and professional activities, including, but not
limited to, managing registered and unregistered investment companies; performing investment advisory services;
and serving as managing members, officers, directors, advisers, agents, partners or trustees of other companies,
corporations, partnerships, trusts and other entities.
The Company acknowledges that the Adviser and its Affiliates may, consistent with its duties under applicable Law
and this Agreement, manage investment advisory accounts involving investment advisory services for other clients
and may give advice and take action in the performance of their duties with respect to any of their other clients
or in connection with their own interests or businesses which may differ from advice given or the timing or
nature of action taken with respect to the Company. It is further understood that the Adviser and its Affiliates
may engage independently or may act with others in activities of every nature or description including, without
limitation, the ownership and trading of securities and rendering advice in connection with the ownership and
trading of securities, including activities competing with those of the Company, and neither the Company nor any
Member shall have any rights in or to such independent ventures or the income or distributions derived therefrom.
Section 6.4 Parties to Contract. Subject to the provisions of this Agreement, any agreement for the
purchase of Units may be entered into with any corporation, firm, trust or association, although one or more of
the Directors or officers of the Company may be an officer, director, shareholder, or member of such other party
to the contract; and no such contract shall be invalidated or rendered voidable by reason of the existence of any
such relationship, nor shall any person holding such relationship be liable merely by reason of such relationship
for any loss or expense to the Company under or by reason of said contract or accountable for any profit realized
directly or indirectly therefrom; provided that the contract when entered into was reasonable and fair and not
inconsistent with the provisions of this Article VI.
Section 6.5 Custodian. The Directors may appoint one or more banks or trust companies as custodian of the
securities and cash belonging to the Company. The agreement providing for such appointment shall contain such
terms and conditions as the Directors in their discretion determine to be not inconsistent with this Agreement,
the applicable provisions of the Investment Company Act. One or more sub-custodians may be appointed in a manner
not inconsistent with this Agreement and the applicable provisions of the Investment Company Act.
ARTICLE VII
Advisory Fee; Other Expenses
Section 7.1 Advisory Fee. The Company will pay an investment advisory fee (the "Advisory Fee") to the
Adviser as provided in the Investment Advisory Agreement, which shall be approved as required under the
Investment Company Act.
Section 7.2 Other Fees and Expenses of the Company. The Company shall bear all fees and expenses not
included in the Advisory Fee or otherwise payable by the Company's distributor that relate to the business and
affairs of the Company, including all fees and expenses for custodial, accounting, auditing, financial reporting,
administrative services, and ongoing legal services including those related to the review of loans, Securities
and other instruments; fees and expenses incurred by, or on behalf of, the Company or the Adviser with respect to
tax matters, such as expenses relating to the annual preparation of Schedules K-1 and the expenses of the
Company's "tax matters member"; any taxes which may be assessed against the Company; organizational and offering
fees and expenses; fees and expenses in connection with the purchase and sale of loans and other instruments,
Securities and other Company assets (including any placement or other brokerage fees payable to third parties in
connection with mergers and acquisitions of a portfolio company) such as commissions, brokerage fees, transfer
taxes or similar charges; all expenses relating to litigation and threatened litigation involving the Company;
and such other fees and expenses that the Adviser may deem to be appropriate fees or expenses of the Company
(collectively, "Company Expenses").
ARTICLE VIII
Units and Unit Values
Section 8.1 Units. Each Member's interest in the Company shall be denominated in units ("Units"). The
number of Units owned by a Member need not be a whole number. The number of Units of each Member shall be
increased or reduced, as the case may be, by the amount contributed or withdrawn by the Member divided by the
value of a Unit before taking into account any such contribution or withdrawal. All Units issued by the Company
under this Agreement shall be duly authorized, validly issued, fully paid and non-assessable.
Section 8.2 Valuation of Units. On the date of the initial contribution of capital to the Company by the
Members (the "Initial Contribution Date"), each Unit shall have a value determined on the applicable Valuation
Date. As of each Valuation Date, the value of a Unit shall be determined by dividing the Net Asset Value of the
Company by the total number of Units outstanding. For this purpose, the Net Asset Value shall be as defined in
Section 15.3.
Section 8.3 Classes of Units. The Board of Directors may, without approval of the Members, establish and
designate classes of Units or divide Units into two or more classes, Units of each class having such preferences
and special or relative rights and privileges (including conversion rights, if any) as the Directors may
determine in their sole discretion. The establishment and designation of any class of Units shall be effective
upon the execution by the Secretary or an Assistant Secretary or any officer of the Company, pursuant to
authorization by a majority of the Directors, of an instrument setting forth such establishment and designation
and the relative rights and preferences of such class. The Directors may amend the By-Laws providing for class
votes and meetings and related matters.
The Units shall have the following relative rights and preferences: on each matter submitted to a vote of the
Members, each Member shall be entitled to a vote proportionate to its Units as recorded on the books of the
Company and all Units shall be voted by class except as to voting for Directors and as otherwise required by the
Investment Company Act, in which case all Members shall vote together as a single class. As to any matter that
does not affect the interest of a particular class, only the Units of the one or more affected classes shall be
entitled to vote.
Section 8.4 Subdivision and Combination of Units. The Board of Directors, at any time and from time to
time, may subdivide or combine all, but not less than all, of the Units then outstanding. Both the number of
Units held by each Member immediately before any such subdivision or combination, and the total number of Units
then outstanding, shall be adjusted accordingly. In the event of any such subdivision or combination, the value
of a Unit immediately after such subdivision or combination shall equal the product of (a) the value of a Unit
immediately prior to such subdivision or combination, (b) multiplied by a fraction, the numerator of which shall
equal the number of Units outstanding immediately prior to such subdivision or combination and (c) the
denominator of which shall equal the number of Units outstanding immediately after such subdivision or
combination.
Section 8.5 Rights of Members. The ownership of the Company Property of every description and the right to
conduct any activities hereinbefore described shall be vested exclusively in the Company, and the Members shall
have no interest therein. Members shall have no right to call for any partition or division of any property,
profits, rights or interests of the Company. The Units shall be personal property giving only the rights
specifically set forth in this Agreement and the Delaware Act. The Members shall have no right to demand payment
for their Units or any other rights of dissenting shareholders in the event the Company participates in any
transaction that would give rise to appraisal or dissenter's rights by a shareholder of a corporation organized
under the General Corporation Law of the State of Delaware or otherwise. Members shall have no preemptive or
other rights to subscribe for additional Units or other securities issued by the Company. All Persons, by virtue
of acquiring Units in the Company and being registered as a Member, shall be deemed to have assented to, and
shall be bound by, this Agreement to the same extent as if such Person was a party hereto.
ARTICLE IX
Capital Accounts
Section 9.1 Capital Accounts. The Board of Directors shall cause the Company to establish and maintain a
capital account ("Capital Account") on the books and records of the Company for each Member.
Section 9.2 Capital Account Balances. The Capital Account balances of Members of the Company shall be
determined on such days and at such time or times as the Directors may determine, consistent with the
requirements of the Investment Company Act, with income, gains and losses of each class thereof determined in
accordance with generally accepted accounting principles to be allocated among the Members of such class thereof
in accordance with their Units. The power and duty to make calculations of the Capital Account balances of the
Members may be delegated by the Directors to the Adviser, Administrator, Custodian, or such other person as the
Directors may determine.
(a) The balance in a Member's Capital Account as of the beginning of each Accounting Period shall be
referred to herein as the "Opening Balance" of such Account for such Accounting Period, and the balance in a
Member's Capital Account as of the end of each Accounting Period shall be referred to herein as the "Closing
Balance" of such Account for such Accounting Period.
(b) The Opening Balance of a Member's Capital Account as of the beginning of the first Accounting Period in
which a Capital Contribution is credited to such Capital Account shall equal the amount of such contribution. The
Opening Balance of a Member's Capital Account as of the beginning of each subsequent Accounting Period shall
equal the Closing Balance of such Account as of the end of the immediately preceding Accounting Period, increased
by any additional Capital Contribution credited to such Capital Account as of the beginning of such Accounting
Period and reduced by any capital withdrawals distributed from such Account as of the beginning of such
Accounting Period.
(c) The Closing Balance of a Member's Capital Account as of the end of an Accounting Period shall be equal
to the Opening Balance of such Account as of the beginning of such Accounting Period, adjusted in the following
manner: any increase or decrease in Net Asset Value for such Accounting Period shall be credited or debited (as
the case may be) to such Opening Balance, pro rata in accordance with the Unit Percentage associated with such
Account as of the beginning of such Accounting Period.
Section 9.3 Allocations and Distributions to Members. In compliance with the Treasury Regulations
promulgated under applicable provisions of the Code, the Directors shall (i) allocate items of taxable income,
gain, loss and deduction with respect to each Member; provided that, except as may otherwise be specifically
provided in the Treasury Regulations, in all cases allocations of specific types of income shall be proportionate
to the Units of the Members in a particular class thereof, and (ii) upon liquidation of the Units of a Member,
make final distribution of the net assets of such a particular Member in accordance with such Member's respective
Capital Accounts. The Directors shall provide each Member that is a regulated investment company, as defined in
Section 851(a) of the Code, information that will enable it to take into account its share of items of taxable
income, gain, loss and deduction as they are taken into account by the Company in order to facilitate compliance
with Code Section 4982. Any income tax withholding or other withholding of taxes required by law with respect to
the allocable share of income of, or distributions to, a Member shall be accounted for as a distribution to and
charged to the Capital Account of such Member at the time of payment of such taxes to the applicable taxing
authority.
Section 9.4 Power to Modify Foregoing Procedures. Notwithstanding any of the foregoing provisions of this
Article IX, the Directors may prescribe, in their absolute discretion, such other bases and times for determining
the net income and net assets of the Company and of each class as they may deem necessary or desirable to enable
the Company to comply with any provision of the Code or the Investment Company Act, any rule or regulation
thereunder, or any order of exemption issued by said Commission, all as in effect now or hereafter amended or
modified.
Section 9.5 Consistent Tax Reporting. Except as otherwise agreed to in writing by the Board, all Members,
including Former Members, shall report all Tax Items (including the character and timing of such Tax Items)
related to the Company in a manner consistent with the manner in which such Tax Items are reported by the
Company.
ARTICLE X
Capital of the Company
Section 10.1 Contributions Generally. The capital of the Company shall initially consist of the initial
contribution of the Organizational Member. After the date hereof, the Company may offer and sell unlimited
additional Units (the "Additional Units") to its existing Members who desire to increase their capital
contribution to the Company (the "Increasing Members") and to additional persons and entities who desire to
become Members of the Company and who agree to be bound by the terms of this Agreement by signing a subscription
agreement or executing a counterpart of this Agreement, as amended from time to time (the "Additional Members").
The Directors may establish, from time to time, one or more minimum investment amounts. Such offer and sale of
Additional Units shall be subject to the provisions of this Agreement.
Section 10.2 Manner of Contribution. All contributions to the capital of the Company shall be made in cash
or, at the sole discretion of the Board, in those assets other than cash that the Board deems suitable for the
Company, which assets shall be valued in accordance with Article XV as of the date of their contribution to the
Company.
Section 10.3 Interest and Withdrawal. No interest shall accrue on any capital contribution made by a Member,
and no Member shall have the right to withdraw or to be repaid any of its capital contributions so made, except
as specifically provided in this Agreement or as required by applicable Law.
ARTICLE XI
Increases in Company Subscriptions; Admission of Additional Members
Section 11.1 Additional Subscriptions; Admission of Members; Increase in Units. The Directors, in their
discretion, may, from time to time, without a vote of the Members, permit the admission of one or more Additional
Members or an increase in the Units of an existing Member, for such type of consideration, including cash or
property, at such time or times (including, without limitation, each business day), and on such terms as the
Directors may deem best, and may in such manner acquire other assets (including the acquisition of assets subject
to, and in connection with the assumption of, liabilities) and businesses. An Additional Member shall be an
individual, corporation, partnership, estate, trust, university, foundation or other entity that shall represent
to the Company and the Board that it is an "accredited investor" as that term is defined in Regulation D under
the Securities Act. Subject to applicable Law and the provisions of this Agreement, the Company shall have the
right to reject any new or additional subscription for any reason. Such offer and sale of Additional Units shall
be subject to the provisions of this Agreement.
Section 11.2 Documentation, Effectiveness and Admission. Each person who is to be admitted as an Additional
Member shall become a Member effective as of the first calculation of Net Asset Value after he has (i) paid a
capital contribution to the Company; (ii) agreed to be bound by the terms of this Agreement by signing a
subscription agreement, which includes a power of attorney and the representations described above, in such
manner as the Board shall determine; and (iii) executed such other appropriate instrument or instruments as may
be required by the Board or on such other date that the Board in its discretion deems appropriate; provided,
however, that if the Board has approved such admission and the instrument admitting the Additional Member so
provides, the admission of such Additional Member shall be effective as of a specified date other than as set
forth in this Article XI. The purchase of any Additional Units by an Increasing Member shall be effective as of
the first calculation of Net Asset Value following the payment therefor or on such other date or time that the
Board in its discretion deems appropriate.
ARTICLE XII
Distributions
Section 12.1 Distributions Generally. The Company may at any time and from time to time make distributions
of Company assets as it deems appropriate; provided, however, that no distribution shall be made which would
render the Company insolvent, and that all distributions (except for distributions in redemption of interests in
the Company) shall be made to the Members in proportion to their Units as of the date of distribution.
Section 12.2 Distributions in Cash or in Kind. While it is the intention of the Board to make any and all
distributions in cash, the Company may, with the consent of the relevant Member, make in-kind distributions
(except for distributions made pursuant to Section 20.2, in which case such consent is not required). To the
extent feasible, a distribution in-kind of any asset pursuant to this Article XII (except for distributions in
redemption of interests in the Company) shall be made to the Members in proportion to each of their respective
shares of the proposed distribution as provided in Section 12.1. For purposes of the preceding sentence, each lot
of Securities having a separately identifiable basis shall be treated as a separate asset. The valuation of
distributions in-kind shall be in the manner provided in Article XV.
Section 12.3 Limitations on Distribution. Notwithstanding anything in this Article XII to the contrary, no
distribution shall be made to any Member if, and to the extent that, such distribution would not be permitted
under Sections 18-607(a) and 18-804 of the Delaware Act or other applicable Law.
ARTICLE XIII
Withdrawal of Company Interests
Section 13.1 Decreases and Withdrawals. A Member shall have the right as set forth in the Registration
Statement and subject to applicable Law to decrease its Units in the Company and to withdraw completely from, at
the next determined net asset value attributable to the Units (or portion thereof) being withdrawn, and an
appropriate adjustment therefor shall be made to such Member's Capital Account. The rights of such "Redeeming
Member" upon withdrawal from the Company shall be limited to the assets belonging to the class with respect to
which the withdrawal is made. The Company may, subject to compliance with the Investment Company Act, charge fees
for effecting such decrease or withdrawal, at such rates as the Directors may establish. The procedures for
effecting decreases or withdrawals shall be as determined by the Directors from time to time, subject to the
requirements of the Investment Company Act.
Section 13.2 Limitation on Right to Withdraw. Except as expressly provided in this Agreement, no Member
shall have the right to withdraw its capital or profits from the Company.
Section 13.3 Manner of Withdrawal. Subject to Section 13.6 herein, as set forth in the Registration
Statement, there shall be distributed to the Redeeming Member, in full payment and satisfaction of its Redeemed
Unit, an amount equal to the next determined net asset value of the number of Units which it has requested the
Company to redeem. No approval of the Members shall be required prior to the making of such distribution to a
Redeeming Member. If the Redeeming Member seeks to redeem all of its Units, effective upon the Redemption Date
therefor, the Redeeming Member shall cease to be a Member of the Company for all purposes and, except for its
right to receive payment for its Redeemed Unit shall no longer be entitled to the rights of a Member under this
Agreement, including, without limitation, the right to receive distributions during the term of the Company or
upon liquidation of the Company or the right to vote on Company matters as provided in this Agreement.
Section 13.4 Mandatory Withdrawal. The Board may, in its sole discretion, require and cause the withdrawal
of all or any number of a Member's Units (the "Redeemed Unit") at any time. Without limiting the generality of
the foregoing, a Member's Units may be redeemed involuntarily and without notice to the extent necessary for the
Company to comply with the provisions of applicable Law or if the Board or the Adviser determines that not
redeeming a Member's Units would result in an Impermissible Event.
Section 13.5 Redemption in Cash or Securities. All distributions by reason of withdrawals from the Company
shall be made in cash, except to the extent that the Board determines that particular withdrawals are to be made
in-kind (in whole or in part), in which case the Board shall obtain the consent of the relevant Member for such
in-kind withdrawal (except for distributions made pursuant to Section 20.2, in which case such consent is not
required). The cash to be paid or Securities to be transferred to a Member with respect to a withdrawal shall
have an aggregate net asset value determined for the Member's Redeemed Units. Securities distributed by the
Company in-kind will be selected in light of the Company's objectives and will not generally represent a pro rata
distribution of each Security held in the Company's portfolio. No interest shall be paid to a Redeeming Member
nor shall any other adjustment be made on account of the delay in the transfer of such cash and Securities.
Section 13.6 Redemption and Payment Dates. Notwithstanding any provision herein to the contrary, and subject
to applicable Law, the Board may (i) suspend the right of redemption or (ii) postpone the payment of redemption
proceeds for up to seven days if the Board determines that: (A) making such payment would result in an
Impermissible Event, or (B) liquidating investment assets in order to make such payment would adversely affect
the continuing Members. The Board shall have no liability for suspending the right of redemption or postponing
any redemption payment, provided that the Board did not act in bad faith in doing so. The Board may further
suspend the right of redemption or postpone the payment of redemption proceeds as otherwise permissible under the
Investment Company Act.
ARTICLE XIV
Prohibition on Assignability of Interests of Members
Section 14.1 Transfers. Units may not be assigned, pledged, mortgaged, encumbered, sold, or otherwise
transferred (in each case, a "Transfer") by any Member except with the written consent of the Board, which
consent may be withheld by the Board in its sole discretion. Any purported Transfer without the written consent
of the Board shall be null and void ab initio and the Company shall give no effect to any purported Transfer.
Section 14.2 Tax and Securities Laws.
(i) Tax Laws. Any such sale, transfer, assignment or security interest shall be null and void ab initio
which, in the opinion of counsel for the Company, would, when considered with all other transfers during the same
applicable twelve (12) month period, cause a constructive termination of the Company under Code Section 708 or
for state income tax purposes.
(ii) Securities Laws. THE LIMITED LIABILITY COMPANY INTERESTS REPRESENTED BY THIS AGREEMENT
HAVE NOT BEEN REGISTERED WITH THE COMMISSION UNDER THE SECURITIES ACT OR WITH ANY AGENCY RESPONSIBLE FOR THE
REGISTRATION OF SUCH SECURITIES UNDER THE LAW OF ANY STATE. SUCH INTERESTS MAY NOT BE OFFERED FOR SALE, SOLD,
DELIVERED AFTER SALE, TRANSFERRED, PLEDGED OR HYPOTHECATED TO ANY PERSON WITHOUT THE WRITTEN CONSENT OF THE BOARD.
ARTICLE XV
Valuation of Company Assets
Section 15.1 Valuation. Whenever valuation of Company assets or net assets is required by this Agreement,
the Board shall determine the value thereof in good faith in accordance with Section 15.2.
Section 15.2 Timing of Valuation and Valuation Rules. The net value of the assets of the Company shall be
determined, and Securities and other assets of the Company shall be valued at such times and in such manner as
determined by the Board (each of which is herein referred to as a "Valuation Date") as set forth in the Company's
Registration Statement.
Section 15.3 Net Asset Value. The Board shall determine the net asset value (the "Net Asset Value") of the
Company by deducting from the total value of the assets of the Company, determined in accordance with this
Article XV, all outstanding indebtedness of the Company (if any) and all liabilities and expenses of the Company
accrued in accordance with generally accepted accounting principles through the Valuation Date. Any determination
of Net Asset Value shall be final and binding on all Members.
Section 15.4 Unusual Market Conditions. In its sole discretion, the Board may decline to determine the value
of any particular asset or all of the assets of the Company as permitted by the Investment Company Act.
Section 15.5 Company Name and Goodwill. For the purposes of this Article XV, the Company's name and goodwill
shall, as among the Members, be deemed to have no value and shall belong to the Company or any successor thereof,
and no Member shall have any right or claim individually to the use thereof.
ARTICLE XVI
Tax Matters Member
Section 16.1 Tax Matters Member. The tax matters member (as defined in Section 6231 of the Code) of the
Company (the "Tax Matters Member") shall be the Organizational Member. The Organizational Member shall not resign
as the Tax Matters Member of the Company unless, on the effective date of such resignation, the Organizational
Member has designated another Member of the Company as the Tax Matters Member in accordance with Section 6231 of
the Code and the Treasury regulations thereunder. The Tax Matters Member shall make all tax elections on behalf
of the Company that it deems in its sole discretion to be in the best interests of the Company, including (but
not limited to) an adjustment of the basis of Company property pursuant to Section 754 of the Code. In the event
that any election under the Code is made, the Tax Matters Member and any Member will each furnish the Company
with all information necessary to give effect to such election.
ARTICLE XVII
Liability; Indemnification; Other Business Ventures
Section 17.1 No Personal Liability of Directors, Officers, etc.
(a) Directors. The Directors shall be entitled to the protection against personal liability for the
obligations of the Company under the Delaware Act. No Director shall be liable to the Company, its Members, or to
any Director, officer, employee, or agent there of for any action or failure to act (including, without
limitation, the failure to compel in any way any former or acting Director to redress any breach of trust) except
for his own bad faith, willful misfeasance, gross negligence or reckless disregard of his duties.
A Director shall not be responsible for or liable in any event for any neglect or wrongdoing of any
officer, employee, investment adviser, sub-adviser, principal underwriter, custodian or other agent of the
Company, nor shall any Director be responsible or liable for the act or omission of any other Director (or for
the failure to compel in any way any former or acting Director to redress any breach of trust), except in the
case of such Director's own willful misfeasance, bad faith, gross negligence or reckless disregard of the duties
involved in the conduct of his or her office.
The appointment, designation or identification of a Director as chair of the Directors, a member or
chair of a committee of the Directors, an expert on any topic or in any area (including an audit committee
financial expert), or the lead independent Director, or any other special appointment, designation or
identification of a Director, shall not impose on that person any standard of care or liability that is greater
than that imposed on that person as a Director in the absence of the appointment, designation or identification,
and no Director who has special skills or expertise, or is appointed, designated or identified as aforesaid,
shall be held to a higher standard of care by virtue thereof. In addition, no appointment, designation or
identification of a Director as aforesaid shall affect in any way that Director's rights or entitlements to
indemnification or advancement of expenses.
(b) Officers, Employees or Agents of the Company. The officers, employees and agents of the Company shall
not be subject to any personal liability whatsoever in his or her official or individual capacity to any Person
(other than as provided in the following sentence). No officer, employee or agent of the Company shall be liable
to the Company, its Members, or to any Director, officer, employee, or agent thereof for any action or failure to
act (including, without limitation, the failure to compel in any way any former or acting Director to redress any
breach of trust) except for his own bad faith, willful misfeasance, gross negligence or reckless disregard of his
duties.
Section 17.2 Indemnification of Directors, Officers, etc. The Company shall indemnify each of its Directors,
officers, employees, and agents (including persons who serve at its request as directors, managers, officers or
trustees of another organization in which it has any interest, as a shareholder, creditor or otherwise) against
all liabilities and expenses (including amounts paid in satisfaction of judgments, in compromise, as fines and
penalties, and as counsel fees and including indemnification for acts or omissions constituting negligence)
reasonably incurred by him in connection with the defense or disposition of any claim, action, suit or other
proceeding, whether civil or criminal, in which he may be involved or with which he may be threatened, while in
office or thereafter, by reason of his being or having been such a Director, officer, employee or agent, except
with respect to any matter as to which he shall have been adjudicated to have acted in bad faith, willful
misfeasance, gross negligence or reckless disregard of his duties.
The rights of indemnification herein provided may be insured against by policies maintained by the
Company, shall be severable, shall not affect any other rights to which any covered person may now or hereafter
be entitled, shall continue as to a person who has ceased to be such a covered person and shall inure to the
benefit of the heirs, executors and administrators of such a person.
Subject to applicable Federal Law, expenses of preparation and presentation of a defense to any claim,
action, suit or proceeding subject to a claim for indemnification under this Section 17.2 shall be advanced by
the Company prior to final disposition thereof.
To the extent that any determination is required to be made as to whether a covered person engaged in
conduct for which indemnification is not provided as described herein, or as to whether there is reason to
believe that a covered person ultimately will be found entitled to indemnification, the Person or Persons making
the determination shall afford the covered person a rebuttable presumption that the covered person has not
engaged in such conduct and that there is reason to believe that the covered person ultimately will be found
entitled to indemnification.
As used in this Section 17.2, the words "claim," "action," "suit" or "proceeding" shall apply to all
claims, demands, actions, suits, investigations, regulatory inquiries, proceedings or any other occurrence of a
similar nature, whether actual or threatened and whether civil, criminal, administrative or other, including
appeals, and the words "liability" and "expenses" shall include without limitation, attorneys' fees, costs,
judgments, amounts paid in settlement, fines, penalties and other liabilities.
Section 17.3 No Bond Required of Directors. No Director shall be obligated to give any bond or other
security for the performance of any of his duties hereunder.
Section 17.4 No Duty of Investigation; Notice in Company Instruments, etc. No purchaser, lender, seller or
other Person dealing with the Company through the Directors or any officer, employee or agent of the Company
shall be bound to make any inquiry concerning the validity of any transaction purporting to be made by the
Directors or by said officer, employee or agent or be liable for the application of money or property paid, lent
or delivered to or on the order of the Directors or of said officer, employee or agent. Every contract,
undertaking, instrument, certificate, interest or obligation or other security of the Company, and every other
act or thing whatsoever executed in connection with the Company, shall be conclusively presumed to have been
executed or done by the executors thereof only in their capacity as Directors under this Agreement or in their
capacity as officers, employees or agents of the Company. Every written obligation, contract, instrument,
certificate or other interest or undertaking of the Company made or sold by the Directors or by any officer,
employee or agent of the Company, in his capacity as such, may contain an appropriate recital to the effect that
the Members, Directors, officers, employees and agents of the Company shall not personally be bound by or liable
thereunder, nor shall resort be had to their private property for the satisfaction of any obligation or claim
thereunder, and appropriate references shall be made therein to this Agreement, and may contain any further
recital that they may deem appropriate, but the omission of such recital shall not operate to impose personal
liability on any of the Members, Directors, officers, employees or agents of the Company.
Section 17.5 Insurance. The Directors may maintain insurance for the protection of the Company Property, its
Members, Directors, officers, employees and agents in such amount as the Directors shall deem adequate to cover
possible tort liability, and such other insurance as the Directors in their sole judgment shall deem advisable.
Section 17.6 Reliance on Experts, etc. Each Director, officer or employee of the Company shall, in the
performance of his duties, be fully and completely justified and protected with regard to any act or any failure
to act resulting from reliance in good faith upon the books of account or other records of the Company, upon an
opinion of counsel, or upon reports made to the Company by any of its officers or employees or by any Adviser,
administrator, accountant, appraiser or other expert or consultant selected with reasonable care by the Directors,
officers or employees of the Company, regardless of whether such counsel or expert may also be a Director;
provided that nothing in this Section shall be deemed to exonerate the Directors from their duties of reasonable
care, diligence and prudence or any other duties imposed by the Investment Company Act.
Section 17.7 Accounting. The Directors shall not be required to file any inventory or accounting with any
court or officer of any court, unless specifically ordered to do so on the application of the Directors or on the
application of the Members of Units of the Company, or on the court's own motion.
Section 17.8 No Protection Against Certain Investment Company Act Liabilities. Nothing contained in this
Article XVII shall protect any Director or officer of the Company from any liability to the Company or its
Members to which he would otherwise be subject by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his office.
ARTICLE XVIII
Fiscal Year; Records and Reports; Accounting Method
Section 18.1 Fiscal Year. The fiscal year of the Company (the "Fiscal Year") shall be as set forth in the
By-Laws.
Section 18.2 Books and Records.
(a) The Company shall keep its books and records at its principal place of business (or at such other
location as the Board may designate) using a method of accounting selected by the Board.
(b) Members may inspect the books and records of the Company during normal business hours at the office of
the Company for any valid, non-commercial, equitable purpose relating to such Member's status as a Member or as
required by Law. Members' inspection rights shall be limited to the financial ledgers of the Company. Members
inspection rights shall not include the right to copy any books or records and shall specifically not include the
right to inspect: (i) trading records; (ii) the Company's portfolio at any point in time; (iii) proprietary
information relating to the strategies implemented on behalf of the Company; or (iv) the names or other
identifying features of other Members. Any inspection of the books and records of the Company shall be at the
expense of the Member requesting such inspection.
(c) Any inspection of the Company's books and records shall be permitted only upon reasonable prior notice
(not fewer than 10 Business Days) to the Board of Directors.
Section 18.3 Delivery of Financial Statements, Tax Returns and Reports. The Company shall transmit after the
close of each fiscal year to each Member the audited financial statements of the Company for such fiscal year as
required by applicable Law. Such audited financial statements shall be prepared in accordance with generally
accepted accounting principles consistently applied. The Company shall also use its best efforts to timely
transmit, after the close of each fiscal year, to each Member and to each person or entity which was a Member
during such fiscal year (a "Former Member"), a report indicating such Member's share of all items of income or
gain, expense, loss or other deduction and tax credit of the Company for such year for federal income tax
purposes, as well as information about the number and value of its Units as of the end of such year, and such
additional information as it may reasonably request to enable it to complete its tax return or to fulfill any
other reporting requirements.
Section 18.4 Delivery of Unit Valuation and Investment Reports. The Company shall furnish to each Member
such valuations and reports as the Board may determine from time to time.
Section 18.5 Method of Accounting. Unless a specific method of accounting is required by Law, the Company
may use the cash or the accrual method of accounting for U.S. Federal income tax purposes as determined by the
Board.
Section 18.6 Accounting Firm. The Company's independent certified public accountants initially shall be the
firm of Deloitte & Touche, LLP, provided, however, that the Board of Directors may change the Company's
accounting firm to another nationally recognized independent certified public accounting firm in the United
States.
ARTICLE XIX
Dissolution
Section 19.1 Dissolution. The Company shall be dissolved, and its affairs wound up, upon the happening of
any of the following events:
(a) the determination by the Board of Directors that the Company should be dissolved and its affairs wound
up and delivery of written notice of such dissolution to the Members not less than thirty (30) days prior to such
dissolution;
(b) the determination by unanimous consent of the Members, exclusive of the Organizational Member, that the
Company should be dissolved and delivery of written notice of such dissolution to the Organizational Member;
(c) as required by operation of law.
Section 19.2 Right to Continue. The Company shall not be dissolved upon the death, retirement, resignation,
expulsion, bankruptcy or dissolution of any Member, or the occurrence of any other event that terminates the
continued membership of any Member in the Company.
Section 19.3 Termination. The Company shall terminate when (i) all of the assets of the Company, after
payment of or due provision for all debts, liabilities and obligations of the Company, shall have been
distributed to the Members in the manner provided for in this Agreement and (ii) the Certificate of Formation of
the Company shall have been canceled in the manner required by the Delaware Act.
ARTICLE XX
Liquidation of Company Interests
Section 20.1 Liquidator. At dissolution, the Company's business shall be liquidated in an orderly manner.
The Adviser shall be the liquidator to wind up the affairs of the Company pursuant to this Agreement, provided
that if there shall be no Adviser, the Members, by agreement of Members whose Units represent 66-2/3% of the
number of Units of all the Members, may appoint one or more liquidators to act as the liquidator(s) in carrying
out such liquidation. Any such liquidator, other than the Adviser, shall be a "liquidating trustee" within the
meaning of Section 18-101(9) of the Delaware Act.
Section 20.2 Liquidation and Distribution; Order of Distribution. The liquidator(s) shall take full account
of the Company's assets and liabilities, and shall determine which assets shall be distributed in-kind and which
assets shall be liquidated, which liquidation shall be carried out as promptly as is consistent with obtaining
the fair value thereof. Thereupon, such assets of the Company, or the proceeds therefrom if the liquidator(s)
elect to liquidate the same, to the extent sufficient therefor, shall be applied and distributed in the following
order:
(a) to the payment and discharge of all of the Company's debts and liabilities; and
(b) to and among the Members in proportion to their Units.
Section 20.3 Return of Contribution Solely Out of Company Assets. A Member shall look solely to the
properties and assets of the Company for return of his contribution, and if the properties and assets of the
Company remaining after the payment or discharge of the debts and liabilities of the Company are insufficient to
return his contribution, he shall have no recourse against any other Person, including the Adviser, the Board,
any other Member or any Affiliate of any such Member for that purpose.
Section 20.4 Authorization; Expenses. In performing their duties, the liquidator(s) are authorized to sell,
exchange or otherwise dispose of the assets of the Company in such reasonable manner as the liquidator(s) shall
determine to be in the best interest of the Members. The expenses incurred by the liquidator(s) in connection
with winding up the Company, all other losses or liabilities of the Company incurred in accordance with the terms
of this Agreement, and reasonable compensation for the services of the liquidator(s), if such liquidator(s) are
not employees of the Adviser, shall be borne by the Company. The liquidator(s) will use best efforts to dispose
of or distribute all Company assets within one year of dissolution but will not be bound to do so or liable in
any way to any Member for failure to do so.
Section 20.5 Liability; Consultation. The liquidator(s) shall not be liable to any Member for any loss
attributable to any act or omission of the liquidators(s) taken in good faith in connection with the liquidation
of the Company and distribution of its assets. The liquidator(s) may consult with counsel, accountants and
investment advisers with respect to liquidating the Company and distributing its assets and shall be justified in
acting or omitting to act in accordance with the advice or opinion of such counsel, accountants or investment
advisers.
Section 20.6 Capital Contributions. The liquidator(s) shall not be liable for the return of capital
contributions of any Members.
ARTICLE XXI
General Provisions
Section 21.1 Company Name upon Withdrawal of OppenheimerFunds, Inc. In the event that an OFI Party ceases to
be the Adviser of the Company, OppenheimerFunds, Inc. or such entity may, upon written notice to all Members,
require the Company to change the name of the Company to delete the name Xxxxxxxxxxx and any other portion of the
name or trademark or service mark used by OppenheimerFunds, Inc. or any of its Affiliates at that time.
Section 21.2 Notices. Except where otherwise specifically provided in this Agreement, all notices, requests,
consents, approvals and statements shall be in writing and shall be deemed to have been properly given by
personal delivery or if mailed from within the United States by first class U.S. mail, postage prepaid, or if
sent by prepaid telegram, addressed in each case, if to the Company, to it at Xxxxxxxxxxx Master Loan Fund, LLC,
c/o OppenheimerFunds, Inc., 2 World Financial Center, 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000-1008, and if to any Member, to it at the address set forth in the instrument pursuant to which it became a
Member or, in each case, to it at such other address or addresses as the addressee may have specified by written
notice as aforesaid to the other parties.
Section 21.3 Power of Attorney.
(a) Each of the Members hereby constitutes and appoints the Adviser as its attorney to make, execute, sign,
acknowledge and file (and, if required, record and/or publish) (A) a Certificate of Formation under the laws of
the State of Delaware or any other jurisdiction, any amendment to any such Certificate of Formation or any other
instrument, certificate or document required from time to time; and (B) any other instrument, certificate or
document as may be required or appropriate under the laws, regulations or procedures of the United States, any
state or any governmental entity in any jurisdiction in which the Company is doing or intends to do business,
provided all such instruments, certificates and other documents referred to in clauses (A) and (B) above are not
inconsistent with the terms of this Agreement as then in effect. Copies of all such instruments, certificates and
other documents shall be sent or otherwise made available to all Members.
(b) Each of the Members is aware that the terms of this Agreement permit certain amendments to the
Certificate of Formation and this Agreement to be effected and certain other actions to be taken by or with
respect to the Company, in each case with the approval or by the vote of less than all the Members or without the
approval of any Member, as the case may be. If, as and when (A) an amendment of the Certificate of Formation and
this Agreement is proposed or an action is proposed to be taken by or with respect to the Company which does not
require, under the terms of this Agreement, the approval of any or all of the Members, as the case may be, (B)
Members holding the interest in the Company specified in this Agreement as being required for such amendment or
action have approved such amendment or action in the manner contemplated by this Agreement, or the consent or
approval of Members is not required hereunder for such amendment or action, and (C) a Member is not required or
has failed or refused to approve such amendment or action (hereinafter referred to as a non-consenting Member),
each non-consenting Member agrees that the special power of attorney specified above, with full power of
substitution, is hereby authorized and empowered to execute, acknowledge, make, swear to, verify, deliver,
record, file and/or publish, for and on behalf of such non-consenting Member, and in its name, place and stead,
any and all instruments and documents which may be necessary or appropriate to permit such amendment to be
lawfully made or action lawfully taken. Each Member is fully aware that it and each other Member has executed
this special power of attorney, and that each Member will rely on the effectiveness of such powers with a view to
the orderly administration of the Company's affairs.
(c) The foregoing grant of authority (A) is a special power of attorney coupled with an interest in favor of
the Adviser and as such shall be irrevocable and shall survive the death or incapacity of a Member that is an
individual or the merger, dissolution or other termination of the existence of a Member that is a corporation,
association, partnership, trust, university or other entity and (B) shall survive the assignment by the Member of
the whole or any portion of its interest in the Company, except that where the assignee of the whole thereof has
furnished a power of attorney, this power or attorney shall survive such assignment for the sole purpose of
enabling the Adviser to execute, acknowledge and file any instrument necessary to effect such substitution and
shall thereafter terminate.
Section 21.4 Power of Attorney by Substituted Members. The Board shall require a similar power of attorney
to be executed by a transferee of a Member as a condition of its admission as a substituted Member.
Section 21.5 Additional Documents. Each Member hereby agrees to execute all certificates, counterparts,
amendments, instruments or documents that may be required by laws of the various states or other jurisdictions in
which the Company does business, to conform with the laws of such states or other jurisdictions governing limited
liability companies.
Section 21.6 Binding Effect; Creditors.
(a) This Agreement shall be binding upon and inure to the benefit of the Members, the parties indemnified
hereunder and their respective successors, permitted assigns, heirs and legal representatives.
(b) None of the provisions of this Agreement shall be for the benefit of, or enforceable by, any creditor of
any Member or of the Company. No creditor who makes a loan to a Member or to the Company may have or acquire,
solely as a result of making such loan, any Unit or interest in the profits or property of the Company, other
than such Unit or interest in the profits or property of the Company that may be expressly granted to such
creditor, with the written consent of the Board, pursuant to the terms of such loan.
Section 21.7 Counterparts. This Agreement or any amendment hereto may be signed in any number of
counterparts, each of which, when executed by the Organizational Member, shall be an original, but all of which
taken together shall constitute one agreement (or amendment, as the case may be).
Section 21.8 Action by the Members. Whenever action is required by this Agreement to be taken by a specified
percentage in interest of the Members, such action shall be deemed to be valid if taken upon written vote or
written consent by those Members whose Units represent the specified percentage of the number of Units of all the
Members at the time.
Section 21.9 Voting. Any vote or other action required or permitted to be taken by this Agreement may be
taken by written consent signed by not less than the requisite percentage in interest of the Members required or
permitted to take such vote or other action.
Section 21.10 Governing Law; Venue.
(a) THIS AGREEMENT IS MADE PURSUANT TO AND SHALL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE,
NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT OR ANY SUBSCRIPTION AGREEMENT IS EXECUTED BY ANY MEMBER OR
PROSPECTIVE MEMBER OR THE LOCATION OF ANY OFFICE, VENTURE OR OPERATION OF THE COMPANY OR ANY MEMBER. ANY ACTION
OR PROCEEDING BROUGHT BY ANY OFI PARTY AGAINST ONE OR MORE MEMBERS OR THE COMPANY RELATING IN ANY RESPECT TO THIS
AGREEMENT, THE OPERATION OF THE COMPANY OR THE OFFERING OF THE UNITS MAY, AND ANY ACTION OR PROCEEDING BROUGHT BY
ANY OTHER PARTY AGAINST ANY OFI PARTY OR THE COMPANY RELATING IN ANY RESPECT TO THIS AGREEMENT, THE OPERATION OF
THE COMPANY OR THE OFFERING OF THE UNITS SHALL, BE BROUGHT AND ENFORCED IN THE CITY, COUNTY AND STATE OF NEW YORK
OR (TO THE EXTENT SUBJECT MATTER JURISDICTION EXISTS THEREFOR) IN THE COURTS OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK, AND THE MEMBERS AND THE COMPANY IRREVOCABLY SUBMIT TO THE JURISDICTION OF BOTH
SUCH STATE AND FEDERAL COURTS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING. THE MEMBERS AND THE COMPANY
IRREVOCABLY WAIVE ANY OBJECTION THAT THEY MAY NOW OR HEREAFTER HAVE TO LAYING THE VENUE OF ANY SUCH ACTION OR
PROCEEDING IN THE COURTS OF THE CITY, COUNTY AND STATE OF NEW YORK OR IN THE COURTS OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK AND ANY CLAIM THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN
BROUGHT IN AN INCONVENIENT FORUM.
(b) EACH MEMBER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM AGAINST ANY
OFI PARTY OR THE COMPANY RELATING IN ANY WAY TO THIS AGREEMENT, THE OPERATION OF THE COMPANY OR THE OFFERING OF
THE UNITS.
(c) EACH MEMBER XXXXXX AGREES THAT SERVICE OF PROCESS MAY BE EFFECTED ON SUCH MEMBER IN THE SAME MANNER AS
NOTICES ARE GIVEN PURSUANT TO SECTION 21.2.
Section 21.11 No Partition.
(a) Each Member irrevocably waives any right that such Member might otherwise have had to maintain any claim
for partition with respect to any property of the Company or to compel any sale or appraisal of any Company asset
or any sale or appraisal of a deceased Member's Units.
(b) The Members shall not hold undivided interests in any asset of the Company, but rather an interest in
the Company itself, which shall for all purposes be considered to constitute personal property.
Section 21.12 Securities Act Matters. Each Member understands that, in addition to the restrictions on
transfer contained in this Agreement, the Company interests have not been registered under the Securities Act,
and, therefore, may not be sold or otherwise transferred unless they are registered under the Securities Act, or
unless an exemption from registration under such Act is available. Each Member agrees with all other Members that
it will not sell or otherwise transfer its interest in the Company unless such interest has been so registered
under the Securities Act, or if approved in writing by the Board.
Section 21.13 Further Information and Documents. Each Member hereby undertakes to furnish to the Company any
additional information that the Board may deem necessary or advisable in order that (a) the Company or the
Adviser and any of their respective Affiliates may comply with applicable Law or (b) the Company may open and
maintain an account or accounts with securities, futures or commodity brokerage firms, and to execute and deliver
such other agreements, documented statements of interest and holdings, powers of attorney, and other instruments
as the Board deems necessary or advisable for such purpose, provided that the same are not inconsistent with the
terms and provisions of this Agreement and do not increase the liabilities or obligations of such Member beyond
that provided for in this Agreement.
Section 21.14 Matters Not Provided For; Compliance with Law.
(a) The Board shall be empowered to decide any question arising with respect to the Company or this
Agreement, and to make such provisions as it deems to be in, or not opposed to, the interests of the Company, but
which are not specifically set forth herein.
(b) In addition to the authority granted the Board herein, the Board may, but shall have no obligation to,
take any action that the Board deems necessary or advisable to ensure that the Company is not in violation of Law
or in breach of any contractual provision, including amending this Agreement.
(c) To the extent permissible by Xxx, in the case of any inconsistency between this Agreement and the
Delaware Act, the provisions of this Agreement shall control.
Section 21.15 Severability. In the event that any provision of this Agreement is held to be invalid or
unenforceable in any jurisdiction, such provision shall be deemed modified to the minimum extent necessary so
that such provision, as so modified, shall no longer be held to be invalid or unenforceable. Any such
modification, invalidity or unenforceability shall be strictly limited both to such provision and to such
jurisdiction, and in each case to no other. Furthermore, in the event of any such modification, invalidity or
unenforceability, this Agreement shall be interpreted so as to achieve the intent expressed herein to the
greatest extent possible in the jurisdiction in question and otherwise as set forth herein.
Section 21.16 Indirect Action. Each Member agrees that it is of the essence to this Agreement that no Member
be permitted to do indirectly - by the use of Affiliates, agents, agreements, contracts, reciprocal business
dealings or any other means - that which such Member has herein agreed not to do directly. Furthermore, it is the
express intent of all Members that all Members shall comply in all respects with the substantive purposes of this
Agreement and that technical compliance shall constitute a breach hereof to the extent that it contravenes or
does not fully achieve such substantive purposes.
Section 21.17 Survival. Those agreements and undertakings set forth in this Agreement which by their terms
contemplate that they shall survive the withdrawal of a Member or the termination of the Company shall do so.
ARTICLE XXII
Amendment
Section 22.1 Amendment. Except as otherwise provided in this Agreement, the terms and provisions of this
Agreement may be waived, modified or amended with the written consent of two-thirds of the Board of Directors and
without the consent of any Member unless otherwise required by applicable Law, in which case such amendment shall
require the consent of any Member or Members as provided by applicable Law. The Board shall promptly furnish
copies of any amendments to this Agreement to all Members.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above
in one or more separate counterparts.
ORGANIZATIONAL MEMBER: EACH MEMBER FROM TIME TO TIME PARTY HERETO:
OppenheimerFunds, Inc. XxxxxxxxxxxXxxxx, Inc.
as Attorney-in-Fact for such persons who have entered
into the related subscription agreements and such
subscriptions have been accepted by the Board of
Directors on behalf of Xxxxxxxxxxx Master Loan Fund, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxx Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President and Deputy General Counsel Title: Senior Vice President and Deputy General Counsel
THE DIRECTORS:
Xxxxxxxx X. Xxxx
as Attorney-in-Fact for the Directors
/s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Attorney-in-Fact for the Directors
