EXHIBIT 77Q1(a)(1)
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
of
Federated Core Trust II, L.P.
a Delaware Limited Partnership
November 14, 2001
TABLE OF CONTENTS
Page
ARTICLE I. Name and Definitions Error! Bookmark not defined.
Section 1. Name. Error! Bookmark not defined.
Section 2. Registered Agent and Registered Office; Principal
Place of Business. Error! Bookmark not defined.
(a) Registered Agent and Registered Office Error! Bookmark not defined.
(b) Principal Place of Business Error! Bookmark not defined.
Section 3. Definitions. Error! Bookmark not defined.
(a) "1940 Act" Error! Bookmark not defined.
(b) "Affiliate" Error! Bookmark not defined.
(c) "Assignment" Error! Bookmark not defined.
(d) "Board of Directors" Error! Bookmark not defined.
(e) "By-Laws" Error! Bookmark not defined.
(f) "Certificate of Limited Partnership" Error! Bookmark not defined.
(g) "Code" Error! Bookmark not defined.
(h) "Commission" Error! Bookmark not defined.
(i) "Director" or "Directors" Error! Bookmark not defined.
(j) "DRULPA" Error! Bookmark not defined.
(k) "General Liabilities" Error! Bookmark not defined.
(l) "General Partner" Error! Bookmark not defined.
(m) "Interested Person" Error! Bookmark not defined.
(n) "Interest" Error! Bookmark not defined.
(o) "Investment Adviser" or "Adviser" Error! Bookmark not defined.
(p) "Investor" Error! Bookmark not defined.
(q) "Majority Investor Vote" Error! Bookmark not defined.
(r) "National Financial Emergency" Error! Bookmark not defined.
(s) "Original Agreement" Error! Bookmark not defined.
(t) "Partnership" Error! Bookmark not defined.
(u) "Partnership Agreement" Error! Bookmark not defined.
(v) "Partnership Property" Error! Bookmark not defined.
(w) "Person" Error! Bookmark not defined.
(x) "Principal Underwriter" Error! Bookmark not defined.
(y) "Series" Error! Bookmark not defined.
ARTICLE II. Purpose of the Partnership Error! Bookmark not defined.
ARTICLE III. Interests Error! Bookmark not defined.
Section 1. Authorization of Interests. Error! Bookmark not defined.
Section 2. Ownership of Interests. Error! Bookmark not defined.
Section 3. Investments in the Partnership. Error! Bookmark not defined.
Section 4. Status of Interests and Limitation of Personal
Liability. Error! Bookmark not defined.
Section 5. Power to Change Provisions Relating to Interests.
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Section 6. Establishment and Designation of Series.
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(a) Assets Held with Respect to a Particular Series
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(b) Liabilities Held with Respect to a Particular
Series Error! Bookmark not defined.
(c) Distributions, Redemptions and Repurchases
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(d) Voting Error! Bookmark not defined.
(e) Equality Error! Bookmark not defined.
(f) Fractions Error! Bookmark not defined.
(g) Exchange Privilege Error! Bookmark not defined.
(h) Combination of Series Error! Bookmark not defined.
(i) Dissolution or Termination Error! Bookmark not defined.
Section 7. Indemnification of Investors. Error! Bookmark not defined.
ARTICLE IV. General Partner and the Board of Directors
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Section 1. General Partner Delegation; Powers of Board of
Directors. Error! Bookmark not defined.
Section 2. Payment of Expenses by the Partnership.
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Section 3. Payment of Expenses by Investors.
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Section 4. Ownership of Partnership Property.
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Section 5. Service Contracts.
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Section 6. Election of Initial Directors by Initial
Investors. Error! Bookmark not defined.
Section 7. Term of Office of Directors.
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Section 8. Termination of Service and Appointment of
Directors. Error! Bookmark not defined.
Section 9. [Reserved].
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Section 10. Effect of Death, Resignation, Removal, etc. of a
Director. Error! Bookmark not defined.
ARTICLE V. Investors' Voting Powers
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Section 1. Voting Powers and Required Vote.
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Section 2. Additional Provisions. Error! Bookmark not defined.
ARTICLE VI. Net Asset Value, Distributions and Redemptions
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Section 1. Determination of Net Asset Value, Net Income and
Distributions. Error! Bookmark not defined.
Section 2. Redemptions at the Option of an Investor.
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Section 3. Redemptions at the Option of the Partnership.
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ARTICLE VII. Compensation; Limitation of Liability of General
Partner, Directors and Officers; and
Indemnification of Directors, Officers, Employees
and Other Agents Error! Bookmark not defined.
Section 1. Compensation. Error! Bookmark not defined.
Section 2. Limitation of Liability. Error! Bookmark not defined.
Section 3. Indemnification of Directors, Officers, Employees
and Other Agents. Error! Bookmark not defined.
(a) Agents, Proceedings and Expenses Error! Bookmark not defined.
(b) Indemnification by Partnership Error! Bookmark not defined.
(c) Exclusion of Indemnification Error! Bookmark not defined.
(d) Required Approval Error! Bookmark not defined.
(e) Advancement of Expenses Error! Bookmark not defined.
(f) Other Contractual Rights; Indemnification Not
Exclusive Error! Bookmark not defined.
Section 4. General Partner's, Officers' and Directors' Good
Faith Action, Expert Advice, No Bond or Surety. Error! Bookmark not defined.
Section 5. Insurance. Error! Bookmark not defined.
ARTICLE VIII. Miscellaneous Error! Bookmark not defined.
Section 1. Liability of Third Persons Dealing with Directors.
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Section 2. [Reserved]. Error! Bookmark not defined.
Section 3. Dissolution of Partnership or Series. Error! Bookmark not defined.
Section 4. Merger and Consolidation; Conversion; Transfer to
Another Jurisdiction. Error! Bookmark not defined.
(a) Merger and Consolidation Error! Bookmark not defined.
(b) Conversion Error! Bookmark not defined.
(c) Transfer to Another Jurisdiction Error! Bookmark not defined.
Section 5. Reorganization. Error! Bookmark not defined.
Section 6. General Partner and Investors. Error! Bookmark not defined.
(a) General Partner Error! Bookmark not defined.
(b) Additional and Successor General Partners Error! Bookmark not defined.
(c) Withdrawal of General Partner Error! Bookmark not defined.
(d) Removal of General Partner Error! Bookmark not defined.
(e) Admission of Investors Error! Bookmark not defined.
Section 7. Amendments. Error! Bookmark not defined.
Section 8. Determination of Book Capital Account Balances and
Net Income. Error! Bookmark not defined.
(a) Book Capital Accounts Error! Bookmark not defined.
(b) Allocation of Income or Loss to Investors Error! Bookmark not defined.
(c) Liquidating Distributions Error! Bookmark not defined.
(d) Special Allocations Error! Bookmark not defined.
(e) Tax Accounting Instructions Error! Bookmark not defined.
Section 9. Filing of Copies, References, Headings. Error! Bookmark not defined.
Section 10. Applicable Law. Error! Bookmark not defined.
Section 11. Provisions in Conflict with Law or Regulations.
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Section 12. [Reserved]. Error! Bookmark not defined.
Section 13. Use of the Name "Federated." Error! Bookmark not defined.
Section 14. Counterparts. Error! Bookmark not defined.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
FEDERATED CORE TRUST II, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP made as of
this 14th day of November, 2001, by and among the General Partner and
the Directors hereunder.
W I T N E S S E T H:
WHEREAS this Partnership was formed under the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. 17-101, et seq.), as from
time to time amended (the "DRULPA"), pursuant to (a) the execution of
the Original Agreement, and (b) the filing of the Certificate of Limited
Partnership in the Office of the Secretary of State of the State of
Delaware on November 13, 2000; and
WHEREAS, the parties hereto desire to amend and restate the
Original Agreement by this Amended and Restated Agreement of Limited
Partnership in order that the Partnership be governed by the provisions
herein; and
WHEREAS this Partnership is authorized to issue its Interests in
separate Series, and to divide any Series into two or more classes of
Investors, all in accordance with the provisions hereinafter set forth;
and
WHEREAS, the General Partner has irrevocably delegated its
authority to manage the business and affairs of the Partnership to the
Board of Directors, pursuant to Section 17-403 of the DRULPA; and
WHEREAS, the parties hereto intend that the Partnership shall
continue to have the ability to exercise all powers and privileges
granted to a limited partnership formed under the laws of the State of
Delaware, and particularly, the DRULPA;
NOW, THEREFORE, in consideration of the mutual promises and
agreements made herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Name and Definitions
Name. This limited partnership shall continue to be known as "Federated
Core Trust II, L.P." and the Board of Directors shall, pursuant to
delegated authority from the General Partner, conduct the business of
the Partnership under that name, or any other name as it may from time
to time determine.
Registered Agent and Registered Office; Principal Place of Business.
ARTICLE I.Registered Agent and Registered Office. The name of the
registered agent of the Partnership and the address of the registered
office of the Partnership are as set forth on the Certificate of Limited
Partnership.
ARTICLE II.Principal Place of Business. The principal place of
business of the Partnership is located at the principal executive office
of the Partnership set forth in the By-Laws.
Definitions. Whenever used herein, unless otherwise required by the
context or specifically provided:
ARTICLE III."1940 Act" shall mean the Investment Company Act of
1940 and the rules and regulations thereunder, all as adopted or amended
from time to time.
ARTICLE IV."Affiliate" shall have the meaning given to
"Affiliated Person" in Section 2(a)(3) of the 1940 Act when used with
reference to a specified Person.
ARTICLE V."Assignment" shall have the meaning given to it in
Section 2(a)(4) of the 1940 Act.
ARTICLE VI."Board of Directors" shall mean the body of Directors,
which, pursuant to authority delegated to it by the General Partner,
shall be the governing body of the Partnership.
ARTICLE VII."By-Laws" shall mean the By-Laws of the Partnership,
as amended and restated from time to time in accordance with Article IX
of the By-Laws, which shall constitute a part of this Partnership
Agreement.
ARTICLE VIII."Certificate of Limited Partnership" shall mean the
certificate of limited partnership filed on November 13, 2000 with the
Office of the Secretary of State of the State of Delaware by the General
Partner as required under the DRULPA to form the Partnership, as amended
and restated from time to time.
ARTICLE IX."Code" shall mean the Internal Revenue Code of 1986,
and the rules and regulations thereunder, all as adopted or amended from
time to time.
ARTICLE X."Commission" shall have the meaning given to it in
Section 2(a)(7) of the 1940 Act.
ARTICLE XI."Director" or "Directors" shall refer to each
signatory to this Partnership Agreement as a director, so long as such
signatory continues in office in accordance with the terms hereof, and
all other Persons who may, from time to time, be duly elected or
appointed, qualified and serving on the Board of Directors in accordance
with the provisions hereof. Reference herein to a Director or the
Directors shall refer to such Person or Persons in their capacity as
directors hereunder.
ARTICLE XII."DRULPA" shall mean the Delaware Revised Uniform
Limited Partnership Act (6 Del. C. 17-101 et seq.), as amended from
time to time.
ARTICLE XIII."General Liabilities" shall have the meaning given
it in Article III, Section 6(b) of this Partnership Agreement.
ARTICLE XIV."General Partner" shall mean Federated Private Asset
Management, Inc., or its duly admitted successor, as general partner of
the Partnership.
ARTICLE XV."Interested Person" shall have the meaning given to it
in Section 2(a)(19) of the 1940 Act.
ARTICLE XVI."Interest" shall mean an Investor's partnership
interest (as defined in Section 17-101(13) of the DRULPA), rights,
powers and authority in and with respect to the Partnership, which
Interest shall be denominated in a unit.
ARTICLE XVII."Investment Adviser" or "Adviser" shall mean a party
furnishing services to the Partnership pursuant to any contract
described in Article IV, Section 5(a) hereof.
ARTICLE XVIII."Investor" shall mean a Person who is admitted to
the Partnership as a limited partner in accordance with Article VIII,
Section 6(e) of this Partnership Agreement, which Investor shall have
all the rights afforded to a shareholder of an investment company under
the 1940 Act.
ARTICLE XIX."Majority Investor Vote" shall mean the 67% or the
50% requirement contained in the definition of "Majority Shareholder
Vote," as contained in Section 2(a)(42) of the 1940 Act, whichever may
be applicable when used with reference to a vote of Investors.
ARTICLE XX."National Financial Emergency" shall mean the whole or
any part of any period set forth in Section 22(e) of the 1940 Act. The
Board of Directors may, in its discretion, declare that the suspension
relating to a National Financial Emergency shall terminate, as the case
may be, on the first business day on which the New York Stock Exchange
shall have reopened or the period specified in Section 22(e) of the 1940
Act shall have expired (as to which, in the absence of an official
ruling by the Commission, the determination of the Board of Directors
shall be conclusive).
ARTICLE XXI."Original Agreement" shall mean the Agreement of
Limited Partnership entered into on November 13, 2000 by and among the
General Partner, the Directors and the initial Investor as to the
affairs of the Partnership and the conduct of its business.
ARTICLE XXII."Partnership" shall mean the Delaware limited
partnership formed by the execution of the Original Agreement and the
filing of the Certificate of Limited Partnership, and governed by this
Partnership Agreement, as amended and restated from time to time,
inclusive of each and every Series established hereunder.
ARTICLE XXIII."Partnership Agreement" shall mean this Amended and
Restated Agreement of Limited Partnership, as amended and restated from
time to time.
ARTICLE XXIV."Partnership Property" shall mean any and all
property, real or personal, tangible or intangible, which is owned or
held for the account of the Partnership or one or more of any Series,
including, without limitation, the rights referred in Article VIII,
Section 3 hereof.
ARTICLE XXV."Person" shall include a natural person, partnership,
limited partnership, trust, estate, association, corporation, custodian,
nominee or any other individual or entity in its own or any
representative capacity.
ARTICLE XXVI."Principal Underwriter" shall have the meaning given
to it in Section 2(a)(29) of the 1940 Act.
ARTICLE XXVII."Series" shall refer to the International High
Income Core Fund (formerly known as the Emerging Markets Fixed Income
Core Fund) and to each series of Interests established and designated in
the future under or in accordance with the provisions of Article III and
shall mean an entity such as that described in Section 18(f)(2) of the
1940 Act, and subject to Rule 18f-2 thereunder.
Purpose of the Partnership
The purpose of the Partnership is to conduct, operate and carry on
the business of a management investment company registered under the
1940 Act through one or more Series investing primarily in securities
and to exercise all of the powers and privileges granted to a limited
partnership formed under the laws of the State of Delaware, now or
hereafter in force, including, without limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested, and to
subscribe for, invest in, reinvest in, purchase or otherwise acquire,
own, hold, pledge, sell, assign, mortgage, transfer, exchange,
distribute, write options on, lend or otherwise deal in or dispose of
contracts for the future acquisition or delivery of fixed income or
other securities, and securities or property of every nature and kind,
including, without limitation, all types of bonds, debentures, stocks,
preferred stocks, negotiable or non-negotiable instruments, obligations,
evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and other
securities of any kind, issued, created, guaranteed, or sponsored by any
and all Persons, including, without limitation, states, territories, and
possessions of the United States and the District of Columbia and any
political subdivision, agency, or instrumentality thereof, any foreign
government or any political subdivision of the U.S. Government or any
foreign government, or any international instrumentality, or by any bank
or savings institution, or by any corporation or organization organized
under the laws of the United States or of any state, territory, or
possession thereof, or by any corporation or organization organized
under any foreign law, or "when issued" contracts for any such
securities, or to change the investments of the assets of the
Partnership;
(b) To exercise any and all rights, powers and privileges with
reference to or incident to ownership or interest, use and enjoyment of
any of such securities and other instruments or property of every kind
and description, including, but without limitation, the right, power and
privilege to own, vote, hold, purchase, sell, negotiate, assign,
exchange, lend, transfer, mortgage, hypothecate, lease, pledge or write
options with respect to or otherwise deal with, dispose of, use,
exercise or enjoy any rights, title, interest, powers or privileges
under or with reference to any of such securities and other instruments
or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of
said rights, powers, and privileges in respect of any of said
instruments, and to do any and all acts and things for the preservation,
protection, improvement and enhancement in value of any of such
securities and other instruments or property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate,
lease or write options with respect to or otherwise deal in any property
rights relating to any or all of the assets of the Partnership or any
Series, subject to any requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership,
with respect to stock or other securities or property; and to execute
and deliver proxies or powers of attorney to such Person or Persons as
the Board of Directors shall deem proper, granting to such Person or
Persons such power and discretion with relation to securities or
property as the Board of Directors shall deem proper;
(e) To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating
that it is limited partnership property, whether in bearer, unregistered
or other negotiable form, or in its own name or in the name of a
custodian or subcustodian or a nominee or nominees or otherwise or to
authorize the custodian or a subcustodian or a nominee or nominees to
deposit the same in a securities depository, subject in each case to
proper safeguards according to the usual practice of investment
companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is held in the Partnership; to consent to any
contract, lease, mortgage, purchase or sale of property by such
corporation or issuer; and to pay calls or subscriptions with respect to
any security held in the Partnership;
(h) To 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 to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Board of Directors shall deem proper,
and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Board of
Directors shall deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor
of or against the Partnership or any matter in controversy, including
but not limited to claims for taxes;
(j) To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof;
(l) To purchase and pay for entirely out of Partnership Property
such insurance as the Board of Directors may deem necessary or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Partnership or
payment of distributions and principal on its portfolio investments, and
insurance policies insuring the Investors, the General Partner,
Directors, officers, employees, agents, Investment Advisers, Principal
Underwriters, or independent contractors of the Partnership,
individually against all claims and liabilities of every nature arising
by reason of holding Interests, holding, being or having held any such
office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as General Partner, Director,
officer, employee, agent, Investment Adviser, Principal Underwriter, or
independent contractor, to the fullest extent permitted by this
Partnership Agreement (including the By-Laws) and by applicable law;
(m) To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the
General Partner, Directors, officers, employees and agents of the
Partnership;
(n) To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or otherwise
deal with, dispose of, use, exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent
or otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved
and unimproved, and wheresoever situated; and to build, erect,
construct, alter and maintain buildings, structures, and other
improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the
Partnership, and to mortgage or pledge the whole or any part of the
property and franchises of the Partnership, real, personal, and mixed,
tangible or intangible, and wheresoever situated;
(q) To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount; and
(r) To issue, purchase, sell and transfer, reacquire, hold,
trade and deal in Interests, bonds, debentures and other securities,
instruments or other property of the Partnership, from time to time, to
such extent as the Board of Directors shall, consistent with the
provisions of this Partnership Agreement, determine; and to repurchase
and redeem, from time to time, its Interests or, if any, its bonds,
debentures and other securities.
The Partnership shall not be limited to investing in obligations
maturing before the possible dissolution of the Partnership or one or
more of its Series. The Directors shall not in any way be bound or
limited by any present or future law or custom in regard to investment
by fiduciaries. Neither the Partnership nor the Directors shall be
required to obtain any court order to deal with any assets of the
Partnership or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects
and powers, and it is hereby expressly provided that the foregoing
enumeration of specific purposes, objects and powers shall not be held
to limit or restrict in any manner the powers of the Partnership, and
that they are in furtherance of, and in addition to, and not in
limitation of, the general powers conferred upon the Partnership by the
DRULPA and the other laws of the State of Delaware or otherwise; nor
shall the enumeration of one thing be deemed to exclude another,
although it be of like nature, not expressed.
Interests
Authorization of Interests. The number of Interests authorized
hereunder is unlimited and shall be without par value. The Board of
Directors may authorize the division of Interests into separate and
distinct Series and the division of any Series into separate classes of
Investors associated with such Series. The different Series and
different classes of Investors associated with a Series shall be
established and designated, and the variations in the relative rights
and preferences as between the different Series and classes shall be
fixed and determined by the Board of Directors without the requirement
of Investor approval. If no separate Series or classes shall be
established, or to the extent any Interests are not associated with a
Series, such Interests shall have the rights, powers and duties provided
for herein and in Article III, Section 6 hereof to the extent relevant
and not otherwise provided for herein, and all references to Series and
classes shall be construed (as the context may require) to refer to the
Partnership with respect to such Interests. The fact that a Series
shall have initially been established and designated without any
specific establishment or designation of classes of Investors of such
Series shall not limit the authority of the Board of Directors to
establish and designate separate classes of Investors of said Series.
The fact that a Series shall have more than one established and
designated class of Investors shall not limit the authority of the Board
of Directors to establish and designate additional classes of Investors
of said Series, or to establish and designate separate classes of the
previously established and designated classes.
The Board of Directors shall have the power to issue Interests of
the Partnership, or any Series thereof, from time to time for such
consideration (but not less than the net asset value thereof) and in
such form as may be fixed from time to time by the Board of Directors.
The Board of Directors may reissue for such consideration and on
such terms as it may determine, or cancel, at its discretion from time
to time, any Interests of the Partnership or any Series reacquired by
the Partnership. The Board of Directors may classify or reclassify any
unissued Interests or any Interests previously issued and reacquired of
the Partnership or any Series into one or more Series that may be
established and designated from time to time, and may also classify or
reclassify any Series or any class of Investors associated with a Series
into one or more classes of Investors associated with such Series that
may be established and designated from time to time. Notwithstanding
the foregoing, the Partnership and any Series thereof may acquire, hold,
sell and otherwise deal in, for purposes of investment or otherwise, the
Interests of any other Series of the Partnership or Interests of the
Partnership, and such Interests shall not be deemed cancelled.
Subject to the provisions of Section 6 of this Article III, each
Interest shall have voting rights as provided in Article V hereof, and
the Investors of the Partnership or any Series shall be entitled to
receive distributions, when, if and as declared with respect thereto in
the manner provided in Article IV, Section 1 hereof. No Interest shall
have any priority or preference over any other Interest of the same
Series with respect to distributions paid in the ordinary course of
business or distributions upon dissolution of the Partnership or of such
Series made pursuant to Article VIII, Section 3 hereof. All
distributions shall be made ratably among all Investors of a Series from
the Partnership Property held with respect to such Series according to
the number of Interests of such Series held of record by such Investors
on the record date for any distribution. Investors shall have no
preemptive or other right to subscribe to new or additional Interests or
other securities issued by the Partnership or any Series. The Board of
Directors may from time to time divide or combine the Interests of any
particular Series into a greater or lesser number of Interests of that
Series. Such division or combination may not materially change the
proportionate interests of the Investors of that Series in the
Partnership Property held with respect to that Series or materially
affect the rights of Investors of any other Series.
No Director, officer, employee, or other agent of the Partnership
may acquire or own Interests of any Series.
The Board of Directors, by majority vote, is authorized to create,
from time to time, partnership interests (as defined in Section 17-
101(13) of the DRULPA) for acquisition by the General Partner, in its
capacity as a general partner of the Partnership, such partnership
interests to be accompanied by such rights, powers, restrictions and
liabilities as determined by the Board of Directors at such time.
Ownership of Interests. The ownership of Interests shall be recorded on
the books of the Partnership kept by the Partnership or by a transfer or
similar agent for the Partnership, which books shall be maintained
separately for the Interests of each Series that has been established
and designated. No certificates certifying the ownership of Interests
shall be issued except as the Board of Directors may otherwise determine
from time to time. No Interest may be transferred, except as provided
in Article VI with regard to redemptions of Interests, or except as part
of a merger or similar plan of reorganization adopted by the Board of
Directors that qualifies under Section 368 of the Code. The Board of
Directors may make such rules not inconsistent with the provisions of
the 1940 Act as it considers appropriate for the issuance of Interests,
the transfer of Interests of each Series and similar matters. The
record books of the Partnership as kept by the Partnership or any
transfer or similar agent, as the case may be, shall be conclusive as to
who are the Investors in each Series and class thereof and as to the
number of Interests of each Series held from time to time by each such
Investor.
Investments in the Partnership. Investments in the Partnership may be
accepted by the Board of Directors from such Persons, at such times and
on such terms as the Board of Directors may, from time to time,
authorize. Each investment shall be credited to the individual
Investor's account in the form of full or fractional Interests of the
Partnership, or such Series and class thereof as the purchaser may
select, at the net asset value per unit of Interest next determined for
the Partnership or such Series, as applicable, after receipt of the
investment; provided, however, that the Principal Underwriter may, in
its sole discretion, impose a sales charge upon investments in the
Partnership or such Series.
Status of Interests and Limitation of Personal Liability. Interests
shall be deemed to be personal property giving to Investors only the
rights provided in this Partnership Agreement and under applicable law.
An Investor has no interest in specific Partnership Property. Every
Investor by virtue of having become an Investor shall be held to have
expressly assented and agreed to the terms hereof and to have become a
party hereto. Subject to Article VIII, Section 3 of this Partnership
Agreement, the death, dissolution or termination of an Investor during
the existence of the Partnership shall not operate to dissolve the
Partnership or any Series, nor entitle the representative of any
deceased, dissolved or terminated Investor to an accounting or to take
any action in court or elsewhere against the Partnership, the General
Partner, the Directors or any Series, but shall entitle such
representative only to the rights of said deceased, dissolved or
terminated Investor under this Partnership Agreement. Neither the
General Partner nor the Directors, nor any officer, employee or agent of
the Partnership shall have any power to bind personally any Investor.
Power to Change Provisions Relating to Interests. Notwithstanding any
other provision of this Partnership Agreement and without limiting the
power of the General Partner and the Board of Directors to amend this
Partnership Agreement and the power of the General Partner to amend the
Certificate of Limited Partnership as provided elsewhere herein, the
General Partner and the Board of Directors shall have the power to amend
this Partnership Agreement, and the General Partner shall have the power
to amend the Certificate of Limited Partnership, at any time and from
time to time, in such manner as the Board of Directors may determine in
its sole discretion, without the need for Investor action, so as to add
to, delete, replace or otherwise modify any provision relating to the
Interests contained in this Partnership Agreement; provided that before
adopting any such amendment without Investor approval, the Board of
Directors shall determine that it is consistent with the fair and
equitable treatment of all Investors and that Investor approval is not
otherwise required by the 1940 Act or other applicable law; provided,
however that if Interests have been issued, Investor approval shall be
required to adopt any amendment to this Partnership Agreement that would
adversely affect to a material degree the rights and preferences of the
Interests of any Series already issued or the rights and preferences of
any class of Investors associated with any such Series.
Subject to the foregoing paragraph, the Board of Directors may
amend any provision set forth in paragraphs (a) through (i) of Section 6
of this Article III.
Notwithstanding the foregoing paragraphs, the Board of Directors
shall have the power, in its discretion, to make such elections as to
the tax status of the Partnership or any Series thereof as may be
permitted or required under the Code as currently in effect or as
amended, without the vote of any Investor.
Establishment and Designation of Series. The establishment and
designation of any Series of Interests or class of Investors associated
with any Series shall be effective upon the adoption of a resolution by
a majority of the then Board of Directors, which resolution shall set
forth such establishment and designation and may provide, to the extent
permitted by the DRULPA, for rights, powers and duties of such Series or
class otherwise than as provided below. Each such resolution shall
constitute a part of this Partnership Agreement upon adoption.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Partnership shall be
maintained for each Series, and the assets and liabilities belonging to
any such Series shall be held and accounted for separately from the
assets and liabilities of the Partnership or any other Series.
Interests of each Series (and class of Investors, where
applicable) established pursuant to this Section 6, unless otherwise
provided in the resolution establishing such Series, shall have the
following rights, powers and duties:
ARTICLE XXVIII.Assets Held with Respect to a Particular Series.
All consideration received by the Partnership for the issue or sale of
Interests of a particular Series, together with all assets in which such
consideration is invested or reinvested, all income, earnings, profits,
and proceeds thereof from whatever source derived, including, without
limitation, any proceeds derived from the sale, exchange or liquidation
of such assets, and any funds or payments derived from any reinvestment
of such proceeds in whatever form the same may be, shall irrevocably be
held with respect to that Series for all purposes, subject only to the
rights of creditors with respect to such Series, and shall be so
recorded upon the books of account of the Partnership. Such
consideration, assets, income, earnings, profits and proceeds thereof,
from whatever source derived, including, without limitation, any
proceeds derived from the sale, exchange or liquidation of such assets,
and any funds or payments derived from any reinvestment of such
proceeds, in whatever form the same may be, are herein referred to as
"assets held with respect to" such Series. In the event that there are
any assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as assets held with respect
to any particular Series (collectively "General Assets"), the Board of
Directors shall allocate such General Assets to, between or among any
one or more of the Series in such manner and on such basis as the Board
of Directors, in its sole discretion, deems fair and equitable, and any
General Asset so allocated to a particular Series shall be an asset held
with respect to that Series. Each such allocation by the Board of
Directors shall be conclusive and binding upon the Investors of all
Series for all purposes.
ARTICLE XXIX.Liabilities Held with Respect to a Particular Series.
The assets of the Partnership held with respect to each particular
Series shall be charged against the liabilities, debts, obligations,
costs, charges, reserves and expenses of the Partnership incurred,
contracted for or otherwise existing with respect to such Series. Such
liabilities, debts, obligations, costs, charges, reserves and expenses
incurred, contracted for or otherwise existing with respect to a
particular Series are herein referred to as "liabilities held with
respect to" that Series. Any liabilities, debts, obligations, expenses,
costs, charges and reserves of the Partnership that are not readily
identifiable as being liabilities held with respect to any particular
Series (collectively "General Liabilities") shall be allocated and
charged by the Board of Directors to and among any one or more of the
Series in such manner and on such basis as the Board of Directors in its
sole discretion deems fair and equitable. Each allocation of
liabilities, expenses, costs, charges and reserves by the Board of
Directors shall be conclusive and binding upon the Investors of all
Series for all purposes. All Persons who have extended credit that has
been allocated to a particular Series, or who have a claim or contract
that has been allocated to any particular Series, shall look, and shall
be required by contract to look exclusively, to the assets of that
particular Series for payment of such credit, claim, or contract. In
the absence of an express contractual agreement so limiting the claims
of such creditors, claimants and contract providers, each creditor,
claimant and contract provider shall be deemed nevertheless to have
impliedly agreed to such limitation.
Subject to the right of the Board of Directors in its discretion
to allocate General Liabilities as provided herein, the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Series, whether such
Series is now authorized and existing pursuant to this Partnership
Agreement or is hereafter authorized and existing pursuant to this
Partnership Agreement, shall be enforceable against the assets held with
respect to such particular Series only, and not against the assets of
any other Series or the General Assets of the Partnership and none of
the General Liabilities of the Partnership or the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing
with respect to any other Series thereof shall be enforceable against
the assets held with respect to such particular Series. Notice of this
limitation on liabilities between and among Series shall be set forth in
the Certificate of Limited Partnership to be filed in the Office of the
Secretary of State of the State of Delaware pursuant to the DRULPA, and
upon the giving of such notice in the Certificate of Limited
Partnership, the statutory provisions of Section 17-218 of the DRULPA
relating to limitations on liabilities between and among Series (and the
statutory effect under Section 17-218 of setting forth such notice in
the Certificate of Limited Partnership) shall become applicable to the
Partnership and each Series.
ARTICLE XXX.Distributions, Redemptions and Repurchases.
Notwithstanding any other provision of this Partnership Agreement,
including, without limitation, Article VI, no distribution, including
without limitation, any distribution paid upon dissolution of the
Partnership or of any Series with respect to, nor any redemption or
repurchase of, the Interests of any Series shall be effected by the
Partnership other than from the assets held with respect to such Series,
nor, except as specifically provided in Section 7 of this Article III,
shall any Investor of any particular Series otherwise have any right or
claim against the assets held with respect to any other Series or the
General Assets of the Partnership except, in the case of a right or
claim against the assets held with respect to any other Series, to the
extent that such Investor has such a right or claim hereunder as an
Investor of such other Series. The Board of Directors shall have full
discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital, and each such determination and allocation shall be conclusive
and binding upon the Investors.
ARTICLE XXXX.Xxxxxx. All Investors of the Partnership entitled to
vote on a matter shall vote on the matter, separately by Series and, if
applicable, by class; provided that (1) where the 1940 Act requires all
Investors of the Partnership to vote in the aggregate, without
differentiation between the separate Series or classes, on any matter,
then all of the Partnership's Investors shall be entitled to vote in the
aggregate on the matter; and (2) if any matter affects only the
interests of some but not all Series or classes of Investors, then only
the Investors of such affected Series or classes shall be entitled to
vote on the matter. Notwithstanding the foregoing, with respect to
matters that could otherwise be voted on by two or more Series as a
single class, the Board of Directors may, in its sole discretion, submit
such matters to the Investors of any or all such Series, separately.
ARTICLE XXXII.Equality. Each Interest of any particular Series
shall represent an equal proportionate undivided interest in the assets
held with respect to such Series and each Interest of any particular
Series shall be equal to each other Interest of such Series (subject to
the rights and preferences with respect to separate classes of Investors
of such Series).
ARTICLE XXXIII.Fractions. Any fractional Interest of a Series
shall carry proportionately to the fractional amount of such Interest
all the rights and obligations of a whole Interest of such Series,
including rights with respect to voting, receipt of distributions,
redemption or repurchase of Interests and dissolution of the Partnership
or such Series.
ARTICLE XXXXX.Xxxxxxxx Privilege. The Board of Directors shall
have the authority to provide that the holders of Interests of any
Series shall have the right to exchange said Interests for Interests of
one or more other Series in accordance with such requirements and
procedures as may be established by the Board of Directors, and in
accordance with the 1940 Act and the rules and regulations thereunder.
ARTICLE XXXV.Combination of Series. The Board of Directors shall
have the authority, without the approval of the Investors of any Series
unless otherwise required by applicable law, to combine the assets and
liabilities held with respect to any two or more Series into assets and
liabilities held with respect to a single Series; provided that upon
completion of such combination of Series, the proportionate interest of
each Investor of each Series that is combined, in the assets and
liabilities held with respect to the combined Series shall equal the
proportionate interest that each such Investor held in the assets and
liabilities held with respect to the particular Series that was
combined.
ARTICLE XXXVI.Dissolution or Termination. Any particular Series
shall be dissolved upon the occurrence of the applicable dissolution
events set forth in Article VIII, Section 3. In addition, the General
Partner and the Board of Directors shall have the authority, without the
approval of Investors of any Series, unless otherwise required by
applicable law, to amend this Partnership Agreement to adopt a
resolution dissolving any such Series and rescinding the establishment
and designation thereof. Any particular class shall be terminated at
the time there are no Investors of the particular class. In addition,
the Board of Directors shall have the authority, without the approval of
Investors of any class, unless otherwise required by applicable law, to
adopt a resolution terminating any such class and rescinding the
establishment and designation thereof; provided, however, that upon the
dissolution of any particular series, every class of such series shall
thereby be terminated. Each such resolution shall constitute a part of
this Partnership Agreement upon adoption.
Indemnification of Investors. If any Investor or former Investor shall
be exposed to liability by reason of a claim or demand relating solely
to his or her being or having been an Investor in the Partnership or an
Investor in a particular Series, and not because of such Person's acts
or omissions, the Investor or former Investor (in the case of a natural
person, his or her 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 to be held
harmless from, and indemnified out of the assets of the Partnership or
out of the assets of the applicable Series, as the case may be, against,
all loss and expense arising from such claim or demand; provided,
however, that there shall be no liability or obligation of the
Partnership, or any particular Series, as the case may be, arising
hereunder to reimburse any Investor for taxes paid by reason of such
Investor's ownership of any Interest. The Partnership shall, upon
request of an Investor or former Investor, assume the defense of any
action made against any Investor for any obligation of the Partnership
or any Series and satisfy any judgment thereof.
General Partner and the Board of Directors
General Partner Delegation; Powers of Board of Directors. The
management and control of the business and affairs of the Partnership is
hereby delegated by the General Partner to the Board of Directors
pursuant to Section 17-403 of the DRULPA; provided however that the
General Partner shall take such action with respect to the Partnership
as is specifically provided in this Partnership Agreement. As a result
of the delegation of the General Partner's duties herein, the General
Partner shall be responsible for performing only the following duties
with respect to the Partnership: (1) to execute and file with the
Office of the Secretary of State of the State of Delaware, the
Certificate of Limited Partnership and any amendments thereto or
restatements thereof required to be filed pursuant to the DRULPA; (2) to
execute and file any other certificates required to be filed on behalf
of the Partnership with the Office of the Secretary of State of the
State of Delaware; (3) to execute any amendments to or restatements of
this Partnership Agreement in accordance with the terms of this
Partnership Agreement (including the By-Laws); and (4) to perform any
other action that the DRULPA requires be performed by a general partner
of a limited partnership (and which may not be performed by a delegatee
of a general partner).
As provided in the foregoing paragraph, subject to the other
provisions of this Partnership Agreement, the business and affairs of
the Partnership shall be managed by the Board of Directors, and such
Board of Directors shall have all powers necessary, desirable or
convenient to carry out that responsibility, including, without
limitation, the power to engage in securities or other transactions of
all kinds on behalf of the Partnership. The Board of Directors shall
have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that it may consider
necessary or appropriate in connection with the administration of the
Partnership. The Board of Directors shall not be bound or limited by
present or future laws or customs with regard to investment by trustees
or fiduciaries, but shall have full authority and absolute power and
control over the assets of the Partnership and the business of the
Partnership to the same extent as if the Directors were the sole owners
of the assets and business of the Partnership in their own right,
including such authority, power and control to do all acts and things as
the Board of Directors, in its sole discretion, shall deem proper to
accomplish the purposes of this Partnership. Without limiting the
foregoing, the Board of Directors may (1) adopt, amend and repeal By-
Laws, not inconsistent with this Partnership Agreement, that provide for
the regulation and management of the affairs of the Partnership (which
By-Laws shall constitute a part of this Partnership Agreement); (2) fill
vacancies in or remove from its number in accordance with this
Partnership Agreement (including the By-Laws), and may elect and remove
such officers and appoint and terminate such agents as it considers
appropriate; (3) appoint from its own number and establish and terminate
one or more committees consisting of two or more Directors, including,
without limitation, an Executive Committee, that may exercise the powers
and authority of the Board of Directors to the extent that the Board of
Directors determines; (4) employ one or more custodians of the
Partnership Property and may authorize such custodians to employ
subcustodians and to deposit all or any part of such Partnership
Property in a system or systems for the central handling of securities
or with a Federal Reserve Bank; (5) retain a transfer agent,
distribution disbursing agent, a shareholder servicing agent or
administrative services agent, or all of them; (6) provide for the
issuance and distribution of Interests by the Partnership directly or
through one or more Principal Underwriters or otherwise; (7) retain one
or more Investment Advisers; (8) redeem, repurchase or transfer
Interests pursuant to applicable law; (9) set record dates for the
determination of Investors with respect to various matters, in the
manner provided in the By-Laws; (10) declare and pay distributions of
income and of capital gains to Investors from the Partnership Property;
(11) establish from time to time, in accordance with the provisions of
Article III, Section 6 hereof, any Series of Interests or any class of
Investors associated with a Series, each such Series to operate as a
separate and distinct investment medium and with separately defined
investment objectives and policies and distinct investment purposes; and
(12) in general, delegate such authority as it considers desirable to
any officer of the Partnership, any committee of the Board of Directors,
any agent or employee of the Partnership, or any such custodian,
transfer agent, distribution disbursing agent, shareholder servicing
agent, administrative services agent, Principal Underwriter or
Investment Adviser. Without limiting the foregoing, the Board of
Directors shall have all the powers granted to a board of directors
under the 1940 Act. Any determination as to what is in the best
interests of the Partnership made by the Board of Directors in good
faith shall be conclusive. The powers delegated to the Board of
Directors in this Section 1 are without prejudice to the delegated
powers of the Board of Directors set forth in the other provisions of
this Partnership Agreement (including the By-Laws).
In construing the provisions of this Partnership Agreement, the
presumption shall be in favor of a grant of power to the Board of
Directors. Unless otherwise specified herein or required by law,
actions by the Board of Directors shall be taken in accordance with the
By-Laws.
Any action required or permitted to be taken by the Board of
Directors, or a committee thereof, may be taken without a meeting,
without prior notice, if a majority of the members of the Board of
Directors, or committee thereof, as the case may be, shall individually
or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a majority vote
at a meeting of the Board of Directors, or committee thereof, as the
case may be. Such written consent or consents shall be filed with the
minutes of the proceedings of the Board of Directors, or committee
thereof, as the case may be.
The General Partner and the Directors shall devote to the affairs
of the Partnership such time as may be necessary for the proper
performance of their respective duties hereunder, but the General
Partner and the Directors are not expected to devote their full time to
the performance of such duties. The Directors, the General Partner or
any Affiliate, partner or employee thereof, may engage in, or possess an
interest in, any other business or venture of any nature and
description, independently or with or for the account of others. None
of the Partnership or any Investor shall have the right to participate
or share in such business or venture or any profit or compensation
derived therefrom.
Payment of Expenses by the Partnership. The Board of Directors is
authorized to pay or cause to be paid out of the principal or income of
the Partnership or any particular Series of Interests, or partly out of
the principal and partly out of the income of the Partnership or any
particular Series of Interests, and to charge or allocate the same to,
between or among such one or more of the Series of Interests, as the
Board of Directors deems fair and in compliance with this Partnership
Agreement, including particularly Article III, Section 6 hereof, all
expenses, fees, charges, taxes and liabilities incurred by or arising in
connection with the maintenance or operation of the Partnership or a
particular Series of Interests or particular class of Investors
associated with a Series of Interests, or in connection with the
management thereof, including, but not limited to, the General Partner's
and the Directors' compensation and such expenses, fees, charges, taxes
and liabilities for the services of the Partnership's officers,
employees, Investment Adviser, Principal Underwriter, auditors, counsel,
custodian, sub-custodian (if any), transfer agent, distribution
disbursing agent, shareholder servicing agent, administrative services
agent, and such other agents or independent contractors and such other
expenses, fees, charges, taxes and liabilities as the Board of Directors
may deem necessary or proper to incur.
Payment of Expenses by Investors. The Board of Directors shall have the
power, as frequently as it may determine, to cause each Investor of the
Partnership, or each Investor of any particular Series, to pay directly,
in advance or arrears, for charges of the Partnership's custodian or
transfer, distribution disbursing, shareholder servicing, administrative
services or similar agent, an amount fixed from time to time by the
Board of Directors, by setting off such charges due from such Investor
from declared but unpaid distributions owed such Investor and/or by
reducing the number of Interests in the account of such Investor by that
number of full and/or fractional Interests that represents the
outstanding amount of such charges due from such Investor.
Ownership of Partnership Property. Legal title to all of the
Partnership Property shall at all times be considered to be vested in
the Partnership, except that the Board of Directors shall have the power
to cause legal title to any Partnership Property to be held by or in the
name of any Person as nominee, on such terms as the Board of Directors
may determine, in accordance with applicable law.
Service Contracts.
(a) Subject to such requirements and restrictions as may be set
forth in the By-Laws, this Partnership Agreement and/or the 1940 Act,
the Board of Directors may, at any time and from time to time, contract
for exclusive or nonexclusive advisory, management and/or administrative
services for the Partnership or for any Series with any corporation,
firm, partnership, association or other organization, including any
Affiliate; and any such contract may contain such other terms as the
Board of Directors may determine, including without limitation,
authority for the Investment Adviser or administrator to determine from
time to time without prior consultation with the Board of Directors what
securities and other instruments or property shall be purchased or
otherwise acquired, owned, held, invested or reinvested in, sold,
exchanged, transferred, mortgaged, pledged, assigned, negotiated, or
otherwise dealt with or disposed of, and what portion, if any, of the
Partnership Property shall be held uninvested and to make changes in the
Partnership's or a particular Series' investments, or such other
activities as may specifically be delegated to such party.
(b) The Board of Directors may also, at any time and from time
to time, contract with any corporation, firm, partnership, trust,
association or other organization, including any Affiliate, appointing
it or them as the exclusive or nonexclusive distributor or Principal
Underwriter for the Interests of the Partnership or one or more of the
Series thereof or for other securities to be issued by the Partnership,
or appointing it or them to act as the custodian, transfer agent,
distribution disbursing agent and/or shareholder servicing agent for the
Partnership or one or more of the Series thereof.
(c) The Board of Directors is further empowered, at any time and
from time to time, to contract with any Persons to provide such other
services to the Partnership or one or more of its Series, as the Board
of Directors determines to be in the best interests of the Partnership
or one or more of its Series.
(d) The fact that:
(i) any of the General Partner, Investors,
Directors, employees or officers of the Partnership is a
shareholder, director, officer, partner, trustee, employee,
manager, Adviser, Principal Underwriter, distributor, or
Affiliate or agent of or for any corporation, firm,
partnership, trust, association, or other organization, or
for any parent or Affiliate of any organization, with which
an Adviser's, management or administration contract, or
Principal Underwriter's or distributor's contract, or
custodian, transfer, distribution disbursing, shareholder
servicing or other type of service contract may have been or
may hereafter be made,
(ii) any such organization, or any parent or
Affiliate thereof, is an Investor or has an interest in the
Partnership, or
(iii) any corporation, firm, partnership, trust,
association or other organization with which an Adviser's,
management or administration contract or Principal
Underwriter's or distributor's contract, or custodian,
transfer, distribution disbursing, shareholder servicing or
other type of service contract may have been or may
hereafter be made also has an Adviser's, management or
administration contract, or Principal Underwriter's or
distributor's contract, or custodian, transfer, distribution
disbursing, shareholder servicing or other service contract
with one or more other corporations, firms, partnerships,
trusts, associations, or other organizations, or has other
business or interests, shall not affect the validity of any
such contract or disqualify the General Partner, any
Investor, Director, employee or officer of the Partnership
from voting upon or executing the same, or create any
liability or accountability to the Partnership, its General
Partner, Directors or its Investors, provided that the
establishment of and performance under each such contract is
permissible under the provisions of the 1940 Act.
(e) Every contract referred to in this Section 5 shall comply
with such requirements and restrictions as may be set forth in the By-
Laws or the 1940 Act or stipulated by resolution of the Board of
Directors. Any such contract may contain such other terms as the Board
of Directors may determine.
Election of Initial Directors by Initial Investors. The initial
Investor has previously elected the initial Board of Directors, the
election of each such Director being evidenced by his or her execution
of the Original Partnership Agreement. Subject to the preceding
sentence and unless otherwise required by the 1940 Act or any court or
regulatory body of competent jurisdiction, or unless the Board of
Directors determines otherwise, a Director initially shall be elected by
the Board of Directors; provided, however, that Investors shall have the
power to fill any vacancies in the Board of Directors.
Term of Office of Directors. The Directors shall hold office during the
lifetime of the Partnership and until its termination as hereinafter
provided; except that (a) any Director may resign his office at any time
by written instrument signed by him and delivered to the other
Directors, which shall take effect upon such delivery or upon such later
date as is specified therein; (b) any Director may be removed at any
time by written instrument signed by at least two-thirds of the number
of Directors prior to such removal, specifying the date when such
removal shall become effective; (c) any Director who requests in writing
to be retired or who has become mentally or physically incapacitated may
be retired by written instrument signed by a majority of the other
Directors, specifying the date of his retirement; and (d) a Director may
be removed at any special meeting of Investors of the Partnership by a
vote of two-thirds of the outstanding Interests. Any removals shall be
effective as to the Partnership and each Series hereunder.
Termination of Service and Appointment of Directors. In case of the
death, resignation, retirement, removal or mental or physical incapacity
of any of the Directors, or in case a vacancy shall, by reason of an
increase in number, or for any other reason, exist, the remaining
Directors shall fill such vacancy by appointing such other person as
they in their discretion shall see fit. An appointment of a Director
may be made by the Directors then in office in anticipation of a vacancy
to occur by reason of retirement, resignation or increase in number of
Directors effective at a later date, provided that said appointment
shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Directors. As soon as
any Director so appointed shall have accepted this Partnership, the
trust estate shall vest in the new Director or Directors, together with
the continuing Directors, without any further act or conveyance, and he
shall be deemed a Director hereunder. Any appointment authorized by
this Section 8 is subject to the provisions of Section 16(a) of the 1940
Act.
[Reserved].
Effect of Death, Resignation, Removal, etc. of a Director. The death,
resignation, removal, declaration as bankrupt or incapacity of one or
more Directors, or of all of them, shall not operate to dissolve the
Partnership or any Series or to revoke any existing agency created
pursuant to the terms of this Partnership Agreement. Whenever a vacancy
in the Board of Directors shall occur, until such vacancy is filled as
provided in the By-Laws, or while any Director is physically or mentally
incapacitated, the Director(s) in office, regardless of the number,
shall have all the powers granted to the Board of Directors and shall
discharge all the duties imposed upon the Board of Directors by this
Partnership Agreement, and the certificate signed by a majority of the
other Director(s) of such vacancy, absence or incapacity, shall be
conclusive, provided, however, that no vacancy that reduces the number
of Directors below three (3) shall remain unfilled for a period longer
than six (6) calendar months.
Investors' Voting Powers
Voting Powers and Required Vote. Subject to the provisions of Article
III, Section 6(d), the Investors shall have power to vote only (i) for
the election of Directors, including the filling of any vacancies in the
Board of Directors, as provided in this Partnership Agreement; (ii) for
the removal of Directors, as provided in Article IV, Section 7; (iii)
with respect to any Investment Adviser (including any sub-investment
adviser); (iv) with respect to the amendment of this Partnership
Agreement, as provided in Article VIII, Section 7; (v) with respect to
such additional matters relating to the Partnership as may be required
by this Partnership Agreement (including the By-Laws), the 1940 Act or
any registration statement of the Partnership filed with the Commission;
and on such other matters as the Board of Directors may consider
necessary or desirable.
The Investor of record (as of the record date established pursuant
to Article II, Section 11 of the By-Laws) of each Interest shall be
entitled to one vote for each full Interest, and a fractional vote for
each fractional Interest. Investors shall not be entitled to cumulative
voting in the election of Directors or on any other matter. Interests
may be voted in person or by proxy. Subject to any applicable
requirement of law or any other provision of this Partnership Agreement
(including the By-Laws), a plurality of the votes cast by Investors
shall elect a Director, and all other matters shall be decided by a
majority of the votes cast by Investors and entitled to vote thereon.
Until Interests of a Series are issued, the Board of Directors may
exercise all of the rights of the Investors of such Series with respect
to the Partnership or such particular Series required or permitted by
law or this Partnership Agreement (including the By-Laws) to be taken by
Investors.
Additional Provisions. The By-Laws may include further provisions for
Investors' votes, meetings and related matters.
Net Asset Value, Distributions and Redemptions
Determination of Net Asset Value, Net Income and Distributions. Subject
to Article III, Section 6 hereof, the Board of Directors shall have the
power to fix an initial offering price for the Interests of the
Partnership or any Series thereof which shall yield to the Partnership
or such Series not less than the net asset value thereof, at which price
the Interests of the Partnership or such Series shall be offered
initially for sale, and to determine from time to time thereafter the
offering price which shall yield to the Partnership or such Series not
less than the net asset value thereof from sales of the Interests of the
Partnership or such Series; provided, however, that no Interests of the
Partnership or Series thereof shall be issued or sold for consideration
which shall yield to the Partnership or such Series less than the net
asset value of the Interests of the Partnership or such Series next
determined after the receipt of the order (or at such other times set by
the Board of Directors), except in the case of Interests of the
Partnership or such Series issued in payment of a distribution properly
declared and payable.
Subject to Article III, Section 6 hereof, the Board of Directors,
in its absolute discretion, may prescribe and shall set forth in the By-
Laws or in a duly adopted vote of the Board of Directors such bases and
time for determining the per unit or net asset value of the Interests of
the Partnership or any Series or net income attributable to the
Interests of the Partnership or any Series, or the declaration and
payment of distributions on the Interests of the Partnership or any
Series, as it may deem necessary or desirable.
Redemptions at the Option of an Investor. Unless otherwise provided in
the prospectus of the Partnership relating to the Interests of the
Partnership or Series thereof, as such prospectus may be amended from
time to time ("Prospectus"):
(a) The Partnership shall purchase such Interests as are offered
by any Investor for redemption, upon the presentation of a proper
instrument of transfer together with a request directed to the
Partnership or a Person designated by the Partnership that the
Partnership purchase such Interests or in accordance with such other
procedures for redemption as the Board of Directors may from time to
time authorize; and the Partnership will pay therefor the net asset
value thereof, in accordance with this Partnership Agreement (including
the By-Laws) and applicable law. Subject to paragraph (c) below,
payment for said Interest shall be made by the Partnership to the
Investor within seven days after the date on which the request is
received in proper form. The obligation set forth in this Section 2 is
subject to the provision that (i) in the event that the New York Stock
Exchange (the "Exchange") is closed for other than weekends or holidays,
(ii) if permitted by the Rules of the Commission during periods when
trading on the Exchange is restricted or during any National Financial
Emergency which makes it impracticable for the Partnership to dispose of
the investments of the Partnership or applicable Series or to determine
fairly the value of the net assets of the Partnership or held with
respect to such Series, or (iii) during any other period permitted by
order of the Commission for the protection of investors, such
obligations may be suspended or postponed by the Board of Directors. If
certificates have been issued to an Investor, any such request by such
Investor must be accompanied by surrender of any outstanding certificate
or certificates for such Interest in form for transfer, together with
such proof of the authenticity of signatures as may reasonably be
required on such Interests and accompanied by proper stock transfer
stamps, if applicable.
(b) Payments for Interests so redeemed by the Partnership shall
be made in cash, except payment for such Interests may, at the option of
the Board of Directors, or such officer or officers as the Board of
Directors may duly authorize in its complete discretion, be made in
kind, or partially in cash and partially in kind. In case of any
payment in kind, the Board of Directors, or its delegate, shall have
absolute discretion as to what security or securities of the Partnership
shall be distributed in kind and the amount of the same; and the
securities distributed shall be valued for purposes of distribution at
the value at which they were appraised in computing the then current net
asset value of the Interests, provided that any Investor who cannot
legally acquire securities so distributed in kind by reason of the
prohibitions of the 1940 Act or the provisions of the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), shall
receive cash. Investors shall bear the expenses of in-kind
transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
(c) If payment shall be made other than exclusively in cash, any
securities to be delivered as part of such payment shall be delivered as
promptly as any necessary transfers of such securities on the books of
the several corporations whose securities are to be delivered
practicably can be made, which may not necessarily occur within such
seven-day period. In no case shall the Partnership be liable for any
delay of any corporation or other Person in transferring securities
selected for delivery as all or part of any payment in kind.
(d) The right of Investors to receive distributions on Interests
may be set forth in a plan adopted by the Board of Directors and amended
from time to time pursuant to Rule 18f-3 under the 1940 Act. The right
of any Investor of the Partnership to receive distributions on Interests
redeemed and all other rights of such Investor with respect to the
Interests so redeemed by the Partnership, except the right of such
Investor to receive payment for such Interests, shall cease at the time
as of which the purchase price of such Interests shall have been fixed,
as provided above.
Redemptions at the Option of the Partnership. The Board of Directors
may, from time to time, without the vote of the Investors, and subject
to the 1940 Act, redeem Interests or authorize the closing of any
Investor account, subject to such conditions as may be established by
the Board of Directors.
Compensation; Limitation of Liability of
General Partner, Directors and Officers; and Indemnification
of Directors, Officers, Employees and Other Agents
Compensation. Except as set forth in the last sentence of this Section
1 and as provided in the By-Laws, the Board of Directors may, from time
to time, fix a reasonable amount of compensation to be paid by the
Partnership to the General Partner, the Directors and officers of the
Partnership. The Board of Directors shall also determine, from time to
time, the compensation of all employees, consultants and agents whom it
may elect or appoint. Nothing herein shall in any way prevent the
employment of any Director for advisory, management, legal, accounting,
investment banking or other services and payment for the same by the
Partnership.
Limitation of Liability.
(a) To the fullest extent that limitations on the liability of
the General Partner, the Directors and officers are permitted by the
DRULPA, the General Partner, officers and Directors shall not be
responsible or liable in any event for any act or omission of any agent,
employee, Investment Adviser or Principal Underwriter of the
Partnership; with respect to the General Partner, the act or omission of
any Director or officer; or with respect to each Director and officer,
the act or omission of any other Director or officer, respectively.
This limitation on liability applies to events occurring at the time a
Person serves as a General Partner, Director or officer of the
Partnership, whether or not such Person is a General Partner, Director
or officer at the time of any proceeding in which liability is asserted.
Nothing herein contained shall indemnify, hold harmless or protect the
General Partner, any officer or Director from or against any liability
to the Partnership or any Investor to which such Person would otherwise
be subject by reason of willful misfeasance, bad faith, gross negligence
or reckless disregard of the duties involved in the conduct of such
Person's office.
(b) Every note, bond, contract, instrument, certificate or
undertaking and every other act or document whatsoever issued, executed
or done by or on behalf of the Partnership, the General Partner, the
officers or the Directors or any of them in connection with the
Partnership shall be conclusively deemed to have been issued, executed
or done only in such Person's capacity as General Partner, Director
and/or as officer, and such General Partner, Director or officer, as
applicable, shall not be personally liable therefore.
Indemnification of Directors, Officers, Employees and Other Agents.
ARTICLE XXXVII.Agents, Proceedings and Expenses. For the purpose
of this Article, "agent" means any person who is or was a Director,
General Partner, officer, employee or other agent of the Partnership, or
is or was serving at the request of the Partnership, as a trustee,
director, officer, employee or other agent of another foreign or
domestic corporation, partnership, joint venture, trust or other
enterprise; "proceeding" means any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or
investigative; and "expenses" include, without limitation, attorneys'
fees and any expenses of establishing a right to indemnification under
this Article.
ARTICLE XXXVIII.Indemnification by Partnership. The Partnership,
out of the Partnership Property, shall indemnify and hold harmless any
Person who was or is a party or is threatened to be made a party to any
proceeding (other than an action by or in the right of the Partnership)
by reason of the fact that such Person is or was an agent of the
Partnership and arising out of or related to such Person's performance
of his or her duties as an agent, against expenses, judgments, fines,
settlements and other amounts actually and reasonably incurred in
connection with such proceeding if such person acted in good faith and
in a manner that such person reasonably believed to be in the best
interests of the Partnership and, in the case of a criminal proceeding,
had no reasonable cause to believe the conduct of such person was
unlawful. The termination of any proceeding by judgment, order,
settlement, conviction or plea of nolo contendere or its equivalent
shall not of itself create a presumption that the person did not act in
good faith or in a manner that the person reasonably believed to be in
the best interests of the Partnership or, with respect to a criminal
proceeding, that the person had reasonable cause to believe that the
person's conduct was unlawful.
ARTICLE XXXIX.Exclusion of Indemnification. Notwithstanding any
provision to the contrary contained herein, there shall be no right to
indemnification for any liability to the Partnership or the Investors
arising by reason of willful misfeasance, bad faith, gross negligence,
or the reckless disregard of the duties involved in the conduct of the
agent's office with the Partnership. No indemnification shall be made
under this Article: (i) in respect of any claim, demand, issue or
matter as to which that Person shall have been adjudged to be liable in
the performance of that Person's duty to the Partnership, unless and
only to the extent that the court in which that action was brought shall
determine upon application or otherwise that, in view of all the
circumstances of the case, that Person was not liable by reason of the
disabling conduct set forth above and is fairly and reasonably entitled
to indemnity for the expenses which the court shall determine; (ii) in
respect of any claim, demand, issue, or matter as to which that Person
shall have been adjudged to be liable on the basis that personal benefit
was improperly received by him, whether or not the benefit resulted from
an action taken in the person's official capacity; (iii) of amounts paid
in settling or otherwise disposing of a threatened or pending action,
with or without court approval, or of expenses incurred in defending a
threatened or pending action that is settled or otherwise disposed of
without court approval, unless the required approval set forth in
paragraph (d) of this Article VII is obtained.
ARTICLE XL.Required Approval. Any indemnification under this
Section shall be made by the Partnership if authorized in the specific
case on a determination that indemnification of the agent is proper in
the circumstances by either a majority vote of a quorum consisting of
Directors who are not parties to the proceeding and are disinterested
Directors, or a committee of such Directors designated by majority vote
of such Directors, even though less than a quorum; or by a written
opinion by an independent counsel.
ARTICLE XLI.Advancement of Expenses. Expenses incurred by an
agent in defending any proceeding may be advanced by the Partnership
before the final disposition of any action, suit or proceeding upon
receipt of an undertaking by or on behalf of the agent to repay the
amount of the advance, if it shall be determined ultimately that the
agent is entitled to be indemnified as authorized in this Section.
ARTICLE XLII.Other Contractual Rights; Indemnification Not
Exclusive. Nothing contained in this Section shall affect any rights to
indemnification to which persons thereof may be entitled by contract or
otherwise under law, nor the power of the Partnership to purchase and
maintain liability insurance on behalf of such persons. The right of
indemnification hereby provided shall not be exclusive of or effect any
other rights to which any agent may be entitled.
General Partner's, Officers' and Directors' Good Faith Action, Expert
Advice, No Bond or Surety. The exercise by the General Partner, the
officers and Directors of their powers and discretions hereunder shall
be binding upon everyone interested. The General Partner, an officer or
Director shall be liable to the Partnership and to any Investor solely
for such General Partner's, officer's or Director's own willful
misfeasance, bad faith, gross negligence or reckless disregard of the
duties involved in the conduct of the office of such General Partner,
officer or Director, and for nothing else, and shall not be liable for
errors of judgment or mistakes of fact or law. The General Partner,
officers and Directors may obtain the advice of counsel or other experts
with respect to the meaning and operation of this Partnership Agreement
and their duties as General Partner, officers or Directors. No such
General Partner, officer or Director shall be liable for any act or
omission in accordance with such advice and no inference concerning
liability shall arise from a failure to follow such advice. The General
Partner, officers and Directors shall not be required to give any bond
as such, nor any surety if a bond is required.
Insurance. To the fullest extent permitted by applicable law, the Board
of Directors and the officers shall be entitled and have the authority
to purchase with Partnership Property, insurance for liability and for
all expenses reasonably incurred, paid or expected to be paid by the
General Partner, a Director or officer in connection with any claim,
action, suit or proceeding in which such Person becomes involved by
virtue of such Person's capacity or former capacity with the
Partnership, whether or not the Partnership would have the power to
indemnify such Person against such liability under the provisions of
this Article.
Miscellaneous
Liability of Third Persons Dealing with Directors. No Person dealing
with the Directors shall be bound to make any inquiry concerning the
validity of any actions made or to be made by the Directors.
[Reserved].
Dissolution of Partnership or Series.
(a) The Partnership and each Series shall continue for a period
of fifty (50) years from the date of the Original Agreement, except that
the Partnership (or a particular Series) shall be dissolved:
(i) With respect to the Partnership, upon the vote of a
majority of the Interests in the Partnership entitled to vote or
by the Board of Directors by written notice to the Investors of
the Partnership. With respect to a particular Series, upon the
vote of a majority of the Interests in that Series or by the Board
of Directors by written notice to the Investors in that Series.
(ii) With respect to the Partnership, upon the withdrawal
of the General Partner, unless (a) at such time there remains at
least one (1) general partner who elects to continue the business
of the Partnership; (b) the Board of Directors, by majority vote,
elects to continue the business of the Partnership and appoint,
effective as of the date of the General Partner's withdrawal, one
or more additional general partners; or (c) within 90 days after
the withdrawal, a majority of the Interests in the Partnership
entitled to vote, elect to continue the business of the
Partnership and appoint, effective as of the date of the General
Partner's withdrawal, one or more additional general partners;
(iii) With respect to the Partnership (or a particular
Series), at the time there are no Investors of the Partnership (or
the particular Series); provided further that the personal
representative of the last remaining Investor of the Partnership
(or the particular Series) or its designee or nominee shall not
become an Investor of the Partnership (or such particular Series);
(iv) With respect to the Partnership (or a particular
Series), upon the occurrence of a dissolution event pursuant to
any other provision of this Partnership Agreement;
(v) With respect to any Series, upon an event that causes
the dissolution of the Partnership; or
(vi) With respect to the Partnership, upon the entry of a
decree of judicial dissolution under Section 17-802 of the DRULPA.
With respect to a particular Series, upon the entry of a decree of
judicial dissolution under Section 17-218(l) of the DRULPA.
(b) Upon the dissolution of the Partnership, the Directors, as
liquidating trustees of the Partnership, shall (subject to Sections 17-
803 and 17-804 of the DRULPA): (i) pay or make reasonable provision
to pay all claims and obligations of the Partnership and/or each Series,
including all contingent, conditional or unmatured contractual claims
known to the Partnership; (ii) make such provision as will be
reasonably likely to be sufficient to provide compensation for any claim
against the Partnership and/or any Series which is the subject of a
pending action, suit or proceeding to which the Partnership is a party;
and (iii) make such provision as will be reasonably likely to be
sufficient to provide compensation for claims that have not been made
known to the Partnership or that have not arisen but that, based on
facts known to the Partnership, are likely to arise or to become known
to the Partnership within 10 years after the date of dissolution. If
there are sufficient assets held with respect to the Partnership and/or
each Series of the Partnership, such claims and obligations shall be
paid in full and any such provisions for payment shall be made in full.
If there are insufficient assets held with respect to the Partnership
and/or each Series of the Partnership, such claims and obligations shall
be paid or provided for, in accordance with Article III, Section 6,
according to their priority and, among claims and obligations of equal
priority, ratably to the extent of assets available therefor.
(c) In winding up the Partnership, the Partnership Property
shall be distributed in the following order of priority:
(i) To creditors, including the General Partner and
Investors who are creditors, to the extent otherwise permitted by
law, in satisfaction of liabilities of the Partnership (whether by
payment or the making of reasonable provision for payment thereof)
other than liabilities for which reasonable provision for payment
has been made and liabilities for distributions to Investors and
former Investors under Sections 17-601 or 17-604 of the DRULPA;
(ii) To Investors and former Investors in satisfaction of
liabilities for distributions under Sections 17-601 and 17-604 of
the DRULPA; and
(iii) Any remaining assets (including, without limitation,
cash, securities or any combination thereof) held with respect to
the Partnership and/or each Series of the Partnership shall be
distributed to the Investors of the Partnership and/or such Series
in accordance with Article III, Section 6, and ratably according
to the number of Interests of the Partnership and/or such Series
held by the several Investors on the record date for such
dissolution distribution.
(d) Upon the completion of the winding up of the Partnership,
the Directors, as liquidating trustees of the Partnership, shall execute
and file a certificate of cancellation with the Office of the Secretary
of State of the State of Delaware.
(e) Upon termination of a particular Series, the Directors shall
(subject to Section 17-218 of the DRULPA): (i) pay or make reasonable
provision to pay all claims and obligations of the Series, including all
contingent, conditional or unmatured contractual claims known to the
Partnership; (ii) make such provision as will be reasonably likely to
be sufficient to provide compensation for any claim against the Series
which is the subject of a pending action, suit or proceeding to which
the Partnership is a party; and (iii) make such provision as will be
reasonably likely to be sufficient to provide compensation for claims
against the Series that have not been made known to the Partnership or
that have not arisen but that, based on facts known to the Partnership,
are likely to arise or to become known to the Partnership within 10
years after the date of the Series' termination. If there are
sufficient assets held with respect to the Series, such claims and
obligations shall be paid in full and any such provisions for payment
shall be made in full. If there are insufficient assets held with
respect to the Series, such claims and obligations shall be paid or
provided for, in accordance with Article III, Section 6, according to
their priority and, among claims and obligations of equal priority,
ratably to the extent of assets available therefor. In winding up the
Series, the assets of the Series shall be distributed in the same order
of priority as set forth above with respect to distributions upon
winding up the Partnership.
Merger and Consolidation; Conversion; Transfer to Another Jurisdiction.
ARTICLE XLIII.Merger and Consolidation. Pursuant to an agreement
of merger or consolidation, the Partnership may, by vote of a majority
of the Board of Directors, merge or consolidate with or into one or more
domestic limited partnerships or "other business entities" (as that term
is defined in Section 17-211 of the DRULPA) formed or organized or
existing under the laws of the State of Delaware or any other state or
the United States or any foreign country or other foreign jurisdiction.
Any such merger or consolidation shall not require the vote of the
Investors affected thereby, unless such vote is required by the 1940
Act, or unless such merger or consolidation would result in an amendment
of this Partnership Agreement that would otherwise require the approval
of such Investors. In accordance with Section 17-211(g) of the DRULPA,
an agreement of merger or consolidation may effect any amendment to this
Partnership Agreement (including the By-Laws) or effect the adoption of
a new limited partnership agreement of the Partnership if the
Partnership is the surviving or resulting limited partnership. Upon
completion of the merger or consolidation, if the Partnership is the
surviving or resulting entity, the General Partner shall file a
certificate of merger or consolidation in accordance with Section 17-211
of the DRULPA.
ARTICLE XLIV.Conversion. The Board of Directors, by majority
vote, may, without the vote of the Investors, cause (i) the Partnership
to convert to a common-law trust, a general partnership, corporation,
business trust or association, real estate investment trust or a limited
liability company organized, formed or created under the laws of the
State of Delaware, as permitted pursuant to Section 17-219 of the
DRULPA; or (ii) the Interests to be exchanged under or pursuant to any
state or federal statute to the extent permitted by law; provided,
however, that if required by the 1940 Act, no such statutory conversion
or Interest exchange shall be effective unless the terms of such
transaction shall first have been approved at a meeting called for that
purpose by a Majority Investor Vote of the Partnership or Series, as
applicable; provided, further, that in all respects not governed by
statute or applicable law, the Board of Directors shall have the power
to prescribe the procedure necessary or appropriate to accomplish a sale
of assets, merger or consolidation including the power to create one or
more separate limited partnerships to which all or any part of the
assets, liabilities, profits or losses of the Partnership may be
transferred and to provide for the conversion of Interests of the
Partnership or any Series thereof into interests in such separate
limited partnership or limited partnerships (or series thereof).
ARTICLE XLV.Transfer to Another Jurisdiction. The Board of
Directors, by majority vote, may, without the vote of the Investors,
cause the Partnership to transfer to or domesticate in any jurisdiction
outside of the United States that permits a transfer or domestication of
a limited partnership and, in connection therewith, elect to continue
the Partnership's existence as a Delaware limited partnership, in
accordance with Section 17-216 of the DRULPA. Any certificate of
transfer or certificate of transfer and continuance shall be executed
and filed by the General Partner with the Office of the Secretary of
State of the State of Delaware.
Reorganization. The Board of Directors, by majority vote, may,
without the vote of the Investors, cause the Partnership to sell, convey
and transfer all or substantially all of the assets of the Partnership,
or all or substantially all of the assets held with respect to any one
or more Series (the "Acquired Series"), to another limited partnership,
trust, business trust, general partnership, limited liability company,
association or corporation organized under the laws of any state, or to
one or more separate series thereof, or to the Partnership to be held as
assets held with respect to one or more other Series of the Partnership,
in exchange for cash, shares or other securities (including, without
limitation, in the case of a transfer to another Series of the
Partnership, Interests in such other Series) with such transfer either
(a) being made subject to, or with the assumption by the transferee of,
the liabilities of the Partnership or the liabilities held with respect
to each Acquired Series, or (b) not being made subject to, or not with
the assumption of, such liabilities; provided, however, that, if
required by the 1940 Act, no assets held with respect to any particular
Series shall be so sold, conveyed or transferred unless the terms of
such transaction shall first have been approved at a meeting called for
that purpose by a Majority Investor Vote of that Series. Following such
sale, conveyance and transfer, the Board of Directors shall distribute
such cash, shares or other securities (giving due effect to the assets
and liabilities held with respect to the Acquired Series, and any other
differences between or among the Acquired Series), ratably among the
Investors in the Partnership or the Acquired Series (giving due effect
to the differences among the various classes of Investors within each
such Acquired Series); and if all of the assets of the Partnership have
been so sold, conveyed and transferred, the Partnership shall be
dissolved.
General Partner and Investors.
ARTICLE XLVI.General Partner. The initial General Partner is
Federated Private Asset Management, Inc. Such General Partner is
initially the sole general partner of the Partnership and is admitted
without acquiring a Partnership interest in the Partnership; provided
however, that nothing herein shall prevent the General Partner from
acquiring Partnership interests, in its capacity as a general partner of
the Partnership, upon the creation of such interests by the Board of
Directors.
ARTICLE XLVII.Additional and Successor General Partners. Subject
to the provisions of Section 3 of this Article VIII, additional and
successor general partners may only be admitted to the Partnership with
the approval of the Board of Directors.
ARTICLE XLVIII.Withdrawal of General Partner. The General Partner
may withdraw from the Partnership at any time, in its sole discretion,
by giving one (1) year prior written notice to the Partnership.
ARTICLE XLIX.Removal of General Partner. The Directors and
Investors shall have the right, power and authority to remove the
General Partner or cause the General Partner to withdraw from the
Partnership.
ARTICLE L.Admission of Investors. A Person becomes an Investor in
the Partnership upon such Person's admission to the Partnership as a
limited partner. A Person is admitted to the Partnership as a limited
partner only upon such Person's (i) execution of a writing evidencing
such Person's assent to and agreement to be bound by the terms and
conditions of this Partnership Agreement; (ii) such Person's purchase of
an Interest in the Partnership in accordance with the terms of this
Partnership Agreement (including the By-Laws); and (iii) the reflection
of such Person as an owner of an Interest on the records of the
Partnership.
Amendments. Subject to the provisions of the second paragraph of this
Section 7 of this Article VIII, this Partnership Agreement may be
restated and/or amended at any time by an instrument in writing signed
by the General Partner and a majority of the then Board of Directors
and, if required, by approval of such amendment by Investors in
accordance with Article V hereof. The provisions of this Partnership
Agreement (whether or not related to the rights of Investors) may be
amended at any time, so long as such amendment does not adversely affect
the rights of any Investor with respect to which such amendment is or
purports to be applicable, the Board of Directors shall have determined
that such amendment is consistent with the fair and equitable treatment
of all Investors, Investor approval is not otherwise required by the
1940 Act or other applicable law, and so long as such amendment is not
in contravention of applicable law, including the 1940 Act, by an
instrument in writing signed by the General Partner, at the request of
the Board of Directors, a majority of the then Board of Directors (or by
an officer of the Partnership pursuant to the vote of a majority of the
then Board of Directors), without the approval of the Investors. Any
amendment to this Partnership Agreement that adversely affects the
rights of Investors may be adopted at any time by an instrument signed
in writing by the General Partner, at the request of the Board of
Directors, by a majority of the then Board of Directors (or by any
officer of the Partnership pursuant to the vote of a majority of the
then Board of Directors) when authorized to do so by the vote of the
Investors holding a majority of the Interests entitled to vote. Any
such restatement and/or amendment hereto shall be effective immediately
upon execution and approval or upon such future date and time as may be
stated therein.
Notwithstanding the foregoing, this Partnership Agreement may be
amended without the need for Investor approval to: (a) create one or
more Series (in addition to any Series already existing or otherwise)
with such rights and preferences and such eligibility requirements for
investment therein as the Directors shall determine and reclassify any
or all outstanding Interests as Interests of particular Series in
accordance with such eligibility requirements; (b) combine two or more
Series into a single Series on such terms and conditions as the
Directors shall determine; (c) change or eliminate any eligibility
requirement for investment in Interests of any Series, including without
limitation the power to provide for the issuance of Interests of any
Series in connection with any merger or consolidation of the Partnership
with another entity or any acquisition by the Partnership of part or all
of the assets of another entity; (d) change the designation of any
Series; (e) change the method of allocating unrealized gains and
losses, taxable income and tax loss, and profit and loss among the
various Series; (f) allocate any specific assets or liabilities of the
Partnership or any specific items of income or expense of the
Partnership to one or more Series; and (g) specifically allocate assets
to any or all Series or create one or more additional Series which are
preferred over all other Series in respect of assets specifically
allocated thereto or any allocations made by the Partnership with
respect to any item of income or expense, however determined.
Subject to the foregoing restrictions, the Certificate of Limited
Partnership may be restated and/or amended by the General Partner, at
the request of the Board of Directors, and any such restatement and/or
amendment shall be effective immediately upon filing with the Office of
the Secretary of State of the State of Delaware or upon such future date
and time as may be stated therein.
Determination of Book Capital Account Balances and Net Income. Except
as otherwise provided in the authorizing resolution for a Series, it is
the intention of the Board of Directors that the Partnership or, if
Series are authorized, each Series shall be treated as a partnership for
federal income tax purposes, and the Interests of the Partnership or
each such Series shall possess the relative rights and privileges
described in this Section 8. Notwithstanding any other provision in
this Partnership Agreement to the contrary, the determination and
maintenance of Book Capital Accounts (as hereinafter defined) and
allocations of income or loss to each Investor of a Series shall be
determined in accordance with the following special provisions:
ARTICLE XX.Xxxx Capital Accounts. The "Book Capital Account"
balances of Investors shall evidence their beneficial interest in the
Partnership or a Series and shall be determined daily at such time or
times as the Directors may determine. All determinations of Book
Capital Accounts shall be in accordance with Section 704(b) of the Code,
and the Treasury regulations promulgated thereunder, including without
limitation, Treasury Reg. Sections 1.704-1(b)(2)(iv)(f) and (g) and
1.704-1(b)(4)(i) relating to revaluations of property. The power and
duty to determine and maintain the Book Capital Account balances of
Investors may be delegated by the Directors to the Investment Adviser,
administrator, custodian or such other person as the Directors may
determine.
ARTICLE LII.Allocation of Income or Loss to Investors. Except as
provided in Section 8(d) of Article VIII hereof or as otherwise required
by Sections 704(b) and (c) of the Code, and the Treasury regulations
promulgated thereunder, the income, gain, loss, deductions or credits
(or items thereof) of the Partnership or a Series for a fiscal year
shall be allocated to each Investor in accordance with each such
Investor's beneficial interest in the Partnership or such Series.
ARTICLE LIII.Liquidating Distributions. Upon the liquidation,
termination or abolishment of the Partnership or a Series, or the
liquidation or complete redemption of an Investor's beneficial interest
therein, any liquidating distributions shall be made in accordance with
the positive Book Capital Account balances of the Investors, as
determined after taking into account all Book Capital Account
adjustments for the Series' taxable year during which such liquidation
occurs, by the end of such taxable year (or, if later, within 90 days
after the date of such liquidation).
ARTICLE LIV.Special Allocations. The following special
allocations shall be made in the following order:
(i) Minimum Gain Chargeback. Except as otherwise provided
in Treas. Reg. Section 1.704-2(f) and notwithstanding any other
provision of Section 8 of this Article VIII, if there is a net
decrease in partnership minimum gain (as defined in Treas. Reg.
Sections 1.704-2(b)(2) and 1.704-2(d)) during the Partnership's or
any Series' fiscal year, each Investor shall be specially
allocated items of income and gain for such year (and, if
necessary, subsequent fiscal years) in an amount equal to the
Investor's share of the net decrease in partnership minimum gain
(determined in accordance with Treas. Reg. 1.704-2(g)).
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to
each Investor pursuant thereto. The items to be so allocated
shall be determined in accordance with Treas. Reg. Sections 1.704-
2(f)(6) and 1.704-2(j)(2).
The provisions of this Section 8(d)(i) are intended to comply with
the minimum gain chargeback requirement in Treas. Reg. Section
1.704-2(f) and shall be interpreted in accordance therewith.
(ii) Deficit Capital Accounts and Qualified Income Offset.
Notwithstanding Section 8(a) hereof, no amounts will be allocated
to any Investor to the extent such allocation would cause or
increase a deficit balance in such Investor's Book Capital Account
(in excess of any dollar amount of such deficit balance that such
Investor is obligated to restore under Treas. Reg. Section 1.704-
1(b)(2)(ii)(c) taking into account the next to last sentence of
Treas. Reg. Sections 1.704-2(g)(1) and (i)(5)) as of the end of
the Series' fiscal year to which such allocation relates. In
determining the extent to which an allocation would cause or
increase a deficit balance in an Investor's Book Capital Account,
an Investor's Book Capital Account shall be hypothetically
decreased by the adjustments, allocations and distributions
described in paragraphs (4), (5) and (6) of Treas. Reg. Section
1.704-1(b)(2)(ii)(d).
If any Investor unexpectedly receives an adjustment, allocation or
distribution described in paragraphs (4), (5) or (6) of Treas.
Reg. Section 1.704(b)(2)(ii)(d), which adjustment, allocation or
distribution creates or increases a deficit balance in that
Investor's Book Capital Account, such Investor shall be allocated
items of income and gain (consisting of a pro rata portion of each
item of income, including gross income, and gain for such year) in
an amount and manner sufficient to eliminate such deficit balance
as quickly as possible; provided, however, that an allocation
pursuant to this section shall only be made if and to the extent
that an Investor would have a deficit Book Capital Account balance
after all other allocations provided in Section 8(d) hereof have
been tentatively made.
Any allocation made pursuant to this section is intended to
constitute a qualified income offset within the meaning of Treas.
Reg. Section 1.704-1(b)(2)(ii)(d) and shall be interpreted in
accordance therewith; and
(iii) Nonrecourse Deductions. Nonrecourse deductions for
any Series' fiscal year or other period shall be allocated in
accordance with Section 8(b) hereof.
ARTICLE XX.Xxx Accounting Instructions. The officers of the
Partnership are hereby authorized and instructed to prepare and forward
to the Partnership's accountants or other agents with respect to the
Partnership or each Series instructions, as necessary, for maintaining
book capital accounts and allocating the income, gain, loss, deductions
or credits (or items thereof) of the Partnership or each Series to each
Investor thereof.
Filing of Copies, References, Headings. The original or a copy of this
Partnership Agreement and of each restatement and/or amendment hereto
shall be kept at the principal executive office of the Partnership where
it may be inspected by any Investor. Anyone dealing with the
Partnership may rely on a certificate by an officer of the Partnership
as to whether or not any such restatements and/or amendments have been
made and as to any matters in connection with the Partnership hereunder;
and, with the same effect as if it were the original, may rely on a copy
certified by an officer of the Partnership to be a copy of this
instrument or of any such restatements and/or amendments. In this
Partnership Agreement and in any such restatements and/or amendments,
references to this instrument, and all expressions of similar effect to
"herein," "hereof" and "hereunder," shall be deemed to refer to this
instrument as amended or affected by any such restatements and/or
amendments. Headings are placed herein for convenience of reference
only and shall not be taken as a part hereof or control or affect the
meaning, construction or effect of this instrument. Whenever the
singular number is used herein, the same shall include the plural; and
the neuter, masculine and feminine genders shall include each other, as
applicable.
Applicable Law. This Partnership Agreement (including the By-Laws) is
created under and is to be governed by and construed and administered
according to the laws of the State of Delaware and the applicable
provisions of the 1940 Act and the Code. The Partnership shall be a
Delaware limited partnership pursuant to the DRULPA, and without
limiting the provisions hereof, the Partnership may exercise all powers
that are ordinarily exercised by such a limited partnership.
Provisions in Conflict with Law or Regulations.
(a) The provisions of this Partnership Agreement are severable,
and if the Board of Directors shall determine, with the advice of
counsel, that any of such provisions is in conflict with the 1940 Act,
the Code, the DRULPA, or with other applicable laws and regulations, the
conflicting provision shall be deemed not to have constituted a part of
this Partnership Agreement from the time when such provisions became
inconsistent with such laws or regulations; provided, however, that such
determination shall not affect any of the remaining provisions of this
Partnership Agreement or render invalid or improper any action taken or
omitted prior to such determination.
(b) If any provision of this Partnership Agreement shall be
held invalid or unenforceable in any jurisdiction, such invalidity or
unenforceability shall attach only to such provision in such
jurisdiction and shall not in any manner affect such provision in any
other jurisdiction or any other provision of this Partnership Agreement
in any jurisdiction.
[Reserved].
Use of the Name "Federated." The Partnership acknowledges that
Federated Investors has reserved the right to grant the non-exclusive
use of the name "Federated" or any derivative thereof to any other
investment company, investment company portfolio, Investment Adviser,
distributor, or other business enterprise, and to withdraw from the
Partnership or one or more Series any right to the use of the name
"Federated."
Counterparts.This Partnership Agreement may be executed in one or more
separate counterparts, each when taken together, constitute the whole.
IN WITNESS WHEREOF, the parties named below have executed this
Partnership Agreement as of the date first written above.
Federated Private Asset
Management, Inc., as General
Partner
By: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: Executive Vice
President
DIRECTORS of the Partnership, solely in their capacity as such and
not as partners:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx, M.D.
Xxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxxxxxx /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxxxxxx Xxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxxx /s/ Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxx
/s/ J. Xxxxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
J. Xxxxxxxxxxx Xxxxxxx Xxxx X. Xxxxx
(2)
