of outside counsel, the company shall have the
right, notwithstanding receipt of the certification, to
consummate the proposed redeployment projec t if
failing to do so would be contrar y to applicable law
or be deemed a breach of the
company’s fiduciar y duties to the
disbursed subscribers.”
By accepting the grant of such rights—and this is a
precautionar y note to foreign migration agents—one
c ould arg u e that any fore ig n mig r ation ag e n t that
negotiates for the types of rights noted above may be
taking on the same fiduciar y
duties of care and loyalt y, and
thus the attendant liabilities for
any breach thereof, that the GP
owes to its investors.
"granting such rights
to foreign agents quite
possibly affords these
agents even greater
rights with respect to a
redeployment decision
than limited partners
themselves may be
granted in the NCE’s
limited partnership
agreement"
In the example above, the foreign
migration agent negotiated for
the right to receive notice and
t h e o p p o r t u n i t y to c o n s u l t w i t h
t h e N C E a n d i t s E B - 5 i n ve s to r s
regarding any contemplated
r e d e p l oy m e n t p r o j e c t s . T h o u g h
ultimately this sample provision
permits the NCE to effect a
redeployment despite investor
revolt if not doing so would
constitute a breach of its fiduciary
duties, this provision makes clear
that the role of the migration agent
can ex tend far beyond merely
identifying or procuring investors.
I n f a c t , g r a n t i n g s u c h r i g h t s to
foreign agents quite possibly af fords these agents
even greater rights with respect to a redeployment
decision than limite d par tne rs the mselves may be
granted in the NCE’s limited par tnership agreement.
Ultimately, courts may be tasked
with determining whether
fo re i g n m i g r a ti o n ag e n ts owe
investors fiduciar y duties,
but the role of agents within
redeployment cer tainly should
include the obligation that they
act in the best interests of the
E B - 5 i nve s to r s t h e y r e c r u i te d
into the deal. The agent’s role
s h o u l d i n c l u d e c o n d u c ti n g a n
objective review of potential
redeployment projects, weighing
the perceived risks and benefits
of such projects and disclosing
a n y p o te n t i a l c o n f l i c t s o f i n te r e s t , i n c l u d i n g a n y
additional compensation payable to agents, if any,
during the extended “at risk” period of redeployment.
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