AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
(“Agreement”) of Kiewit Investment Fund LLLP
(the “Partnership”), effective as of
July 22, 2005, is entered into by and among Kiewit
Investment Holdings Inc., a Delaware corporation (the
“General Partner”), and Kiewit Finance Group
Inc., a Delaware corporation (the “Initial Limited
Partner”), together with any other Persons who become
Partners in the Partnership as provided herein.
PRELIMINARY STATEMENT. The Partnership was formed on
September 8, 2004 upon the filing of the Certificate of
Limited Partnership with the Secretary of State pursuant to an
oral agreement between the General Partner and the Initial
Limited Partner. The General Partner and the Initial Limited
Partner thereafter entered into, and the Partnership has been
governed by and operated pursuant to the terms and provisions
of, a Limited Partnership Agreement dated as of October 5,
2004 (the “Original Partnership Agreement”).
The Partnership registered as a limited liability limited
partnership with the Secretary of State on May 13, 2005.
The Partnership amended its Certificate of Limited Partnership
on May 13, 2005 with respect to changing the
Partnership’s name from “Kiewit Investment Fund
L.P.” to “Kiewit Investment Fund LLLP.” As
specified in Section 7(a) of the Original
Partnership Agreement, the General Partner irrevocably delegated
its authority to manage the business and affairs of the
Partnership to the Board, pursuant to Section 17-403 of the
Delaware Act. The General Partner and the Initial Limited
Partner now desire to amend and restate the Original Partnership
Agreement in its entirety to make certain modifications thereto
as provided herein.
NOW, THEREFORE, in consideration of the foregoing premises and
the covenants, conditions and agreements contained herein, the
parties hereto hereby amend and restate the Original Partnership
Agreement, and agree to continue the Partnership under the
Delaware Act as a registered limited liability limited
partnership under the Delaware Act and the Delaware Revised
Uniform Partnership Act, 6 Del. C. Sec. 15-101, et seq., as
follows:
ARTICLE I.
“1940 Act” means the Investment Company Act of
1940.
“1940 Act Majority of Limited Partners” means
the lesser of (a) the holders of 67% or more of the
outstanding Units present at a meeting of Limited Partners at
which the holders of more than 50% of the outstanding Units are
present in person or by proxy or (b) more than 50% of the
outstanding Units.
“Adjusted Capital Account Deficit” means, with
respect to any Partner, the deficit balance, if any, in such
Partner’s Capital Account as of the end of the relevant
Fiscal Period, after giving effect to the following adjustments:
(a) Credit to such Capital Account any amounts which such Partner is obligated to restore or is deemed to be obligated to restore pursuant to Treasury Regulations under Section 704 of the Code; and | |
(b) Debit to such Capital Account the items described in Treasury Regulations Sections 1.704-l(b)(2)(ii)(d)(4), (5) and (6). |
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Treasury Regulations
Section 1.704-l(b)(2)(ii)(d) and shall be interpreted
consistently therewith.
“Advance Notice” has the meaning set forth in
Section 8.1(b) hereof.
“Adviser” means any Person or Persons selected
from time to time to provide investment advisory or investment
management services to the Partnership pursuant to an Investment
Advisory Agreement with the
Partnership or, if the Board has granted an Adviser the
authority to do so, any Person that is a party to an Investment
Advisory Agreement with an Adviser to manage a portion of the
Partnership’s assets.
“Affiliate” means, with respect to any Person,
an affiliated person as that term is defined in the 1940 Act.
“Agreement” means this Amended and Restated
Limited Partnership Agreement of the Partnership, as it may be
amended, supplemented or restated from time to time.
“Applicable Rate” means a rate per annum equal,
at the time of determination, to the sum of (a) the highest
“prime rate” then published in the “Money
Rates” section of The Wall Street Journal or in such
successor publication as shall be acceptable to the Board and
(b) two percent (2%).
“Board” means the body of those natural persons
who at any given time are serving as Directors of the
Partnership in accordance with this Agreement.
“Book Depreciation” means, for each Fiscal
Period in respect of a particular asset of the Partnership, an
amount equal to the depreciation, amortization, or other cost
recovery deduction allowable for United States federal income
tax purposes with respect to such asset for such Fiscal Period,
except that if, as of the beginning of the Fiscal Period, the
Book Value of such asset differs from its adjusted basis for
United States federal income tax purposes, Book Depreciation for
such asset shall be an amount which bears the same ratio to such
beginning Book Value as the United States federal income tax
depreciation, amortization or other cost recovery deduction with
respect thereto for such Fiscal Period bears to such beginning
adjusted tax basis; provided, that if, under such circumstances,
the asset’s adjusted basis for United States federal income
tax purposes at the beginning of a Fiscal Period is zero, the
Book Depreciation for such asset shall be determined with
reference to its Book Value using any method selected by the
Board.
“Book Value” means, with respect to an asset of
the Partnership, the adjusted basis for United States federal
income tax purposes of the Partnership in such asset, except as
follows:
(a) The initial Book Value of any asset contributed by any Partner to the capital of the Partnership shall be the fair market value of such asset on the date of its contribution to the Partnership as determined by the Board or as otherwise provided in, or contemplated by, this Agreement; | |
(b) The Book Values of all of the assets of the Partnership shall be adjusted to equal their respective fair market values, as determined by the Board, as of the following times: (i) the acquisition of an additional equity interest in the Partnership by any new or existing Partner in exchange for more than a de minimis Capital Contribution; (ii) the distribution by the Partnership to a Partner of more than a de minimis amount of property (including money, but excluding any promissory note of the Partnership) as consideration for all or part of such Partner’s Units; (iii) the grant of more than a de minimis equity interest in the Partnership in consideration for services rendered to or for the benefit of the Partnership by an Partner acting in a “partner capacity” within the meaning of Treasury Regulations Section 1.704-1(b)(2)(iv)(f)(5)(iii), or by a new Partner acting in such a partner capacity or in anticipation of becoming a Partner and having such a partner capacity; and (iv) the liquidation of the Partnership within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g); provided, however, that adjustments pursuant to clauses (i), (ii), and (iii) above shall be made only if the Board determines that such adjustments are necessary or appropriate to reflect the Partners’ respective economic interests in the Partnership; | |
(c) The Book Value of any asset of the Partnership (excluding money, but including any promissory note of the Partnership) distributed to any Partner shall be adjusted to equal the fair market value of such asset on the date of the distribution as determined by the Board or as otherwise provided in, or contemplated by, this Agreement; and | |
(d) The Book Values of certain assets of the Partnership shall be increased, or decreased, as the case may be, to reflect any adjustments to the adjusted United States federal income tax basis of such assets pursuant to Section 734(b) of the Code or Section 743(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m) (and Subparagraph (f) of the definition of “Net Profit” and |
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“Net Loss” or Section 6.2(e)); provided, that Book Values of assets of the Partnership shall not be adjusted pursuant to this Subparagraph (d) to the extent that an adjustment under Subparagraph (b) above is made in connection with the transaction that would otherwise result in an adjustment pursuant to this Subparagraph (d). |
If the Book Value of an asset of the Partnership has been
determined or adjusted pursuant to Subparagraph (a), (b) or
(d) above, such Book Value shall thereafter be adjusted by
the Book Depreciation taken into account with respect to such
asset for purposes of computing Net Profit and Net Loss (or
items, if any of income, gain, loss, deduction or expense of the
Partnership to be allocated hereunder that are not included in
the computation of Net Profit and Net Loss).
“Business Day” means any day other than a
Saturday, a Sunday or a day on which banking institutions in
Omaha, Nebraska, are authorized or obligated by law, executive
order or governmental decree to be closed.
“By-Laws” shall mean the By-Laws of the
Partnership, as amended and restated from time to time.
“Canadian Representative” shall have the
meaning set forth in Section 9.7(a).
“Capital Account” means, with respect to each
Partner, the capital account established and maintained for the
Partner pursuant to Section 6.1 of this Agreement.
“Capital Contribution” means, with respect to
any Partner, the amount of money and fair market value of other
property (net of any liabilities assumed by the Partnership or
to which such other property is subject) contributed by or on
behalf of such Partner to the capital of the Partnership
pursuant to this Agreement. The value of any non-cash Capital
Contribution shall be determined by the Board.
“Certificate of Limited Partnership” means the
Certificate of Limited Partnership of the Partnership filed with
the Secretary of State by the General Partner, as such
Certificate of Limited Partnership may be amended, supplemented
or restated from time to time.
“Closing” means the closing of the Initial
Offering.
“Closing Date” means the date on which the
Closing occurs.
“Code” means the Internal Revenue Code of 1986.
“Designee” shall have the meaning set forth in
Section 12.2.
“Delaware Act” means the Delaware Revised
Uniform Limited Partnership Act, 6 Del. C.
Sec. 17-101, et. seq.
“Disinterested Directors” shall have the
meaning set forth in Section 10.2(b).
“Director” or “Directors”
means each Person who may, from time to time, be duly elected or
appointed, qualified and serving on the Board in accordance with
the provisions hereof. Reference herein to a Director or the
Director shall refer to such Person or Persons in their capacity
as directors hereunder.
“Eligible Purchaser” means, as of the date of
determination, and except as otherwise determined by the Board,
(a) any Employee who is also a Kiewit Stockholder,
(b) any Former Employee who was also previously a Kiewit
Stockholder, (c) any Limited Partner, (d) Kiewit (or
any entity controlled by Kiewit) (e) the General Partner,
(f) any Director and (g) any other Person specified by
the Board who is eligible to own securities of the Partnership.
“Employees’ Securities Company” shall have
the meaning set forth in Section 2(a)(13) of the 1940 Act
as such provision may be amended, supplemented or restated from
time to time.
“Employee” means, as of any date, a natural
person who is an employee or Director of Kiewit or an employee
of a Kiewit Related Entity.
“Exemptive Order” means any order of the SEC
pursuant to Section 6(b) of the 1940 Act relating to the
Partnership’s manner of operation as an Employees’
Securities Company; provided that, if on the date of the
Closing, an Exemptive Order as just defined has not been issued
by the SEC, until such time as such an
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Exemptive Order is issued, the term “Exemptive Order”
shall mean the application under Section 6(b) of the 1940
Act filed with the SEC.
“Fiscal Period” means (a) any period for
which the Partnership is required to allocate Net Profit, Net
Loss, or other items of Partnership income, gain, loss,
deduction or expense pursuant to this Agreement or (b) any
other period determined by the Board.
“Fiscal Quarter” means each three-month period
ending on March 31, June 30, September 30 and
December 31; provided that the first Fiscal Quarter shall
commence on the Closing Date.
“Fiscal Year” means each annual period ending
on March 31 or such other date as determined by the Board.
“Former Employee” means, as of the Closing
Date, a natural person who was previously an Employee.
“General Partner” means Kiewit Investment
Holdings Inc., a Delaware corporation, and any successor Person
properly serving as general partner of the Partnership.
“Incapacity” means, as to any Person, the entry
of an order for relief in a bankruptcy proceeding, entry of an
order of incompetence or insanity or the death, dissolution or
termination (other than by merger or consolidation), as the case
may be, of such Person.
“Indemnified Liabilities” shall have the
meaning specified in Section 10.2(a).
“Indemnified Person” shall have the meaning
specified in Section 10.2(a).
“Initial Limited Partner” means Kiewit Finance
Group Inc., a Delaware corporation.
“Initial Offering” means the initial public
offering of Units.
“Interest” means the interest of a Partner in
the Partnership at any particular time, including rights to
which a Partner may be entitled to, and obligations of a Partner
to comply with, in each case, under this Agreement.
“Investment Advisory Agreement” means any
agreement between or among the Partnership and any Adviser, or
between Advisers, that provides for the provision of investment
advisory or investment management services by such Adviser to
the Partnership and the payment therefor by the Partnership as
in effect from time to time.
“Kiewit” means Xxxxx Xxxxxx Sons’, Inc., a
Delaware corporation.
“Kiewit Related Entity” means any corporation,
limited liability company, partnership, unlimited liability
company, joint venture, or any other entity as to which such
entity and Kiewit are Affiliates of each other.
“Kiewit Stock” means the $0.01 par value common
stock of Kiewit.
“Kiewit Stockholder” means a holder of record
of Kiewit Stock.
“Limited Partner” means, (a) prior to the
Closing, the Initial Limited Partner and (b) thereafter,
each Person named as a limited partner of the Partnership in the
books and records of the Partnership who has not ceased to be a
Limited Partner under the terms of this Agreement.
“Majority in Interest of the Limited Partners”
means Limited Partners who in the aggregate own more than 50% of
the outstanding Units.
“Net Asset Value” means the value of the
Partnership’s total assets less total liabilities,
determined pursuant to such policies and procedures adopted by
the Board.
“Net Profit” and “Net Loss”
mean, for each Fiscal Period, an amount equal to the
Partnership’s taxable income or loss for such Fiscal
Period, determined in accordance with Section 703(a) of the
Code (for this purpose, all items of income, gain, loss,
deduction or expense required to be stated separately pursuant to
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Section 703(a)(1) of the Code shall be included in taxable
income or loss), with the following adjustments (without
duplication):
(a) Any income of the Partnership that is exempt from United States federal income tax and not otherwise taken into account in computing Net Profit or Net Loss, shall be added to such taxable income or loss; | |
(b) Any expenditures of the Partnership described in Section 705(a)(2)(B) of the Code, or treated as expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Profit or Net Loss, shall be subtracted from such taxable income or loss; | |
(c) In the event the Book Value of any asset of the Partnership is adjusted pursuant to Subparagraph (b) or Subparagraph (c) of the definition of “Book Value,” the amount of such adjustment shall be taken into account as gain or loss, as the case may be, from the disposition of such asset for purposes of computing Net Profit or Net Loss; | |
(d) Gain or loss resulting from any disposition of assets of the Partnership with respect to which gain or loss is recognized for United States federal income tax purposes shall be computed by reference to the Book Value of the disposed asset, notwithstanding that the adjusted tax basis of such asset differs from its Book Value; | |
(e) In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Book Depreciation for such Fiscal Period; | |
(f) To the extent an adjustment to the adjusted tax basis of any of the assets of the Partnership pursuant to Section 734(b) of the Code or Section 743(b) of the Code is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Account balances as a result of a distribution other than in liquidation of a Partner’s Interest in the Partnership, the amount of such adjustment shall be treated as gain or loss, as the case may be, from the disposition of such asset and shall be taken into account for purposes of computing Net Profit or Net Loss; and | |
(g) Notwithstanding Subparagraphs (a) through (f) above, any items of income, gain, loss, deduction, or expense which are specially allocated under this Agreement, including pursuant to Section 6.2(c), shall not be taken into account in computing Net Profit or Net Loss, but the amounts of such items (except with respect to allocations made under Section 6.3) shall be determined by applying rules comparable to those set forth in Subparagraphs (a) through (f) above. | |
“1940 Act” means the Investment Company Act of
1940, as amended from time to time.
“Nonrecourse Deductions” shall have the meaning
set forth in Treasury Regulations Section 1.704-2.
“Officer” or “Officers” means
the officers of the Partnership appointed in accordance with
Section 5.17 and the By-Laws.
“Original Partnership Agreement” shall have the
meaning set forth in the Preliminary Statement.
“Partner Nonrecourse Debt” shall have the
meaning set forth in Treasury Regulations Section 1.704-2.
“Partner Nonrecourse Debt Minimum Gain” shall
have the meaning set forth in Treasury Regulations
Section 1.704-2.
“Partner Nonrecourse Deductions” shall have the
meaning set forth in Treasury Regulations Section 1.704-2.
“Partner” or “Partners” means
one or more of the General Partner and the Limited Partners, as
applicable.
“Partnership” means Kiewit Investment Fund
LLLP, a Delaware limited liability limited partnership.
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“Partnership Expenses” means fees, charges,
taxes and liabilities incurred by or arising in connection with
the maintenance or operation of the Partnership, or in
connection with the management thereof, including: fees and
expenses of the Board; fees and expenses of Advisers;
administration fees, expenses of registering the Units for sale
under federal and state securities laws and other expenses in
connection with the offering of the Units; interest; taxes; fees
and expenses of the Partnership’s legal counsel and
independent accountants; fees and expenses of the
Partnership’s administrator, transfer agent and custodian;
expenses of printing and mailing, reports to Partners, notices
to Partners, proxy statements; reports to regulatory bodies;
brokerage and other expenses in connection with the execution,
recording and settlement of portfolio security transactions;
expenses in connection with the acquisition or disposition of
portfolio securities or the registration of privately issued
portfolio securities; costs of third party evaluations or
appraisals of the Partnership (or its assets) or its
investments; expenses of Partnership in investment company and
other trade associations; expenses of fidelity bonding and other
insurance premiums; expenses of Partners’ meetings;
indemnification costs and expenses, including advances under
Section 10.2; fees and expenses of counsel to the
Directors (if any); and all of the Partnership’s other
business and operating expenses.
“Partnership Minimum Gain” shall have the
meaning set forth in Treasury Regulations Section 1.704-2.
“Partnership Property” means any and all
property, real or personal, tangible or intangible, which is
owned or held for the account of the Partnership.
“Pass-Through Limited Partner” shall have the
meaning set forth in Section 9.7(b).
“Permitted Transfer” shall have the meaning
specified in Section 8.3(a).
“Person” means any natural person, individual,
corporation, limited liability company, partnership, joint
venture, trust, unincorporated organization, association,
government agency or political subdivision thereof or any other
entity.
“Record Date” means the date established by the
Board for determining (a) the identity of the Partners entitled
to notice of, or to vote at, any meeting of Partners or entitled
to vote by ballot or give approval of Partnership action in
writing without a meeting or entitled to exercise rights in
respect of any lawful action of Partners, or (b) the
identity of Partners entitled to receive any report or
distribution or to participate in any offer.
“Registration Statement” means the
Partnership’s most recent effective registration statement
on form N-2 under the Securities Act and the 1940 Act, as
amended or supplemented from time to time.
“Regulatory Allocations” shall have the meaning
set forth in Section 6.2(d).
“SEC” means the United States Securities and
Exchange Commission.
“Secretary of State” means the Secretary of
State of the State of Delaware.
“Securities Act” means the Securities Act of
1933, as amended from time to time.
“Substituted Limited Partner” means any Person
who is admitted to the Partnership as a Limited Partner pursuant
to the provisions of Section 8.3 in place of a
Limited Partner and who is shown as a Limited Partner on the
books and records of the Partnership.
“Supermajority of Limited Partners” means
Limited Partners who in the aggregate own more than 67% of the
outstanding Units.
“Tax Matters Partner” means the tax matters
partner of the Partnership within the meaning of
Section 9.7(a).
“Tax Withholding” shall have the meaning set
forth in Section 7.6.
“Transfer,” “Transferred,” or
“Transferring” means the direct or indirect,
voluntary or involuntary, transfer, assignment, sale, exchange,
pledge, hypothecation, encumbrance or other disposition
(including without limitation any right to receive any
distributions or allocations in respect of an Interest).
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“Transfer Agent” means such Person as shall be
appointed from time to time by the Board to act as registrar and
transfer agent for the Units.
“Treasury Regulations” means the income tax
regulations, including temporary regulations, promulgated under
the Code, as the same may be amended hereafter from time to time
(including corresponding provisions of succeeding income tax
regulations).
“Unit” means a fractional part of the Interest
of a Limited Partner designated as a Unit and having the rights
and obligations specified with respect to Units in this
Agreement, and includes fractions of Units as well as whole
Units.
“Withholding Advances” shall have the meaning
set forth in Section 7.6.
ARTICLE II.
Section 2.1. Name. The
name of the Partnership is “Kiewit Investment Fund
LLLP.” The Partnership’s name may be changed from time
to time by the Board; provided that the words “Limited
Liability Limited Partnership,” “LLLP” or similar
words or letters shall be included in the Partnership’s
name. The Partnership’s business may be conducted under any
other name or names deemed necessary or appropriate by the Board.
ARTICLE III.
(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 all types of |
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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 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 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; | |
(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 shall deem proper, granting to such Person or Persons such power and discretion with relation to securities or property as the Board 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; | |
(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 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 shall deem proper; | |
(i) To compromise, arbitrate or otherwise adjust claims in favor of or against the Partnership or any matter in controversy, including 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; |
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(l) To purchase and pay for entirely out of Partnership Property such insurance as the Board may deem necessary or appropriate for the conduct of the business, including insurance policies insuring the assets of the Partnership or payment of distributions and principal on its portfolio investments, and insurance policies insuring the Limited Partners, the General Partner, Directors, Officers, employees, agents, Advisers, distributors of Units (if any), or independent contractors of the Partnership, individually against all claims and liabilities of every nature arising by reason of holding Units, 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 Limited Partner, General Partner, Director, Officer, employee, agent, Adviser, distributor of Units (if any), or independent contractor, to the fullest extent permitted by this Agreement 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 Units, bonds, debentures and other securities, instruments or other property of the Partnership, from time to time, to such extent as the Board shall determine; and to repurchase and redeem, from time to time, its Units 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. The
Board 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 Board shall be required to
obtain any court order to deal with any Partnership Property 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 Delaware Act 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.
Section 3.2. Restrictions. Notwithstanding anything
in this Agreement to the contrary, the Partnership shall not be
authorized to and shall be specifically prohibited from entering
into any joint venture, general or limited partnership or any
other combination, association or venture with Kiewit or a
Kiewit Related Entity.
ARTICLE IV.
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Agreement and any other voting rights (i) provided under
the Delaware Act to limited partners of a limited partnership
and (ii) provided to securities holders of a registered
investment company under the 1940 Act, except as the ESC Order
may otherwise limit such voting rights of Limited Partners under
the 1940 Act. Partners shall have all rights to any allocations
and to any distributions as may be authorized and set forth
under this Agreement and under the Delaware Act.
(a) Subject to the terms of this Agreement, the Partnership
is authorized to issue Units solely to, and to admit to the
Partnership as Limited Partners, Eligible Purchasers. The Board
may, from time to time, institute such terms and conditions on
the issuance of Units or admission to the Partnership as the
Board shall determine in its discretion. Such authorized Units
shall constitute an unlimited number of limited partnership
interests under the Delaware Act and shall be without par value.
Other than as otherwise set forth in this Agreement, each Unit
shall be identical in all respects with each other Unit and
shall represent an equal proportionate undivided interest in the
assets of the Partnership. Units may be subdivided or combined
into such number of equal, indivisible shares as the Board may
determine; provided that such division or combination may not
materially change the proportionate Units of the Partners in the
Partnership. The Board shall undertake a combination or
“reverse split” of Units, if necessary, at the end of
a Fiscal Quarter such that the Net Asset Value per Unit is equal
to at least $10,000.
(b) The Board may reissue or cancel any Units acquired by
the Partnership. The number of Units issued to Limited Partners
shall be listed in the books and records of the Partnership,
which shall be amended from time to time by the Partnership as
required to reflect issuances of Units to Limited Partners,
changes in the number of Units held by Limited Partners and to
reflect the addition or cessation of Partners. The number of
Units held by each Limited Partner shall not be affected by any
(i) issuance by the Partnership of Units to other Partners
or (ii) change in the Capital Account of such Partner
(other than such changes to reflect additional investments in
the Partnership from such Partner). No Unit shall have any
priority or preference over any other Unit with respect to
distributions paid in the ordinary course of business or
distributions upon dissolution and liquidation of the
Partnership made pursuant to Section 11.4 hereof.
(c) All Units issued pursuant to, and in accordance with
the requirements of, this Article IV shall be fully
paid and non-assessable Interests in the Partnership, except as
such non-assessability may be affected by Section 17-607 of
the Delaware Act.
10
(a) to the extent required by the 1940 Act or as otherwise provided for herein, the right to elect Directors by the affirmative vote of a plurality of votes cast; | |
(b) to the extent required by the 1940 Act, the right to terminate the Partnership’s independent accountants by the affirmative vote of a 1940 Act Majority of Limited Partners; | |
(c) so long as the Partnership is subject to the provisions of the 1940 Act, the right to approve any other matters required by the 1940 Act to be approved by the Limited Partners by the affirmative vote of a 1940 Act Majority of Limited Partners; | |
(d) the right to remove the General Partner by the affirmative vote of a Majority in Interest of Limited Partners; and | |
(e) any other matter as determined by the Board. |
11
The phrase “to the extent required by the 1940 Act”
means as required by the 1940 Act unless the Exemptive Order
otherwise permits the Partnership to operate without such a vote.
(a) Notwithstanding anything expressed or implied to the
contrary in this Agreement but subject to paragraph (b) of
this Section 4.12, no vote, approvals, or other
consent shall be required of the Limited Partners to amend this
Agreement in any of the following respects: (i) to reflect
any change not prohibited by the Delaware Act or the 1940 Act in
the amount or character of the Interest of any Limited Partner;
(ii) to admit a Limited Partner or a Substituted Limited
Partner or repurchase a Limited Partner’s Units in
accordance with the terms of this Agreement; (iii) to
correct any false or erroneous statement, or to make a change in
any statement in order that such statement shall accurately
represent the agreement among the Limited Partners, in this
Agreement; (iv) to reflect any change that is necessary to
qualify the Partnership as a limited partnership under the laws
of any state or that is necessary or advisable in the discretion
of the Board to assure that the Partnership (1) is an
Employees’ Securities Company and (2) will not be treated
as a publicly traded partnership or otherwise treated as a
corporation for United States federal income tax purposes;
(v) to reflect any change in the principal place of
business of the Partnership; (vi) to make any other change
or amendment that does not require the vote, approval or consent
of Limited Partners under the 1940 Act, the Delaware Act or
expressly hereunder, provided that such change or amendment has
been approved by a majority of the Board.
(b) Any amendment that would (x) obligate a Limited
Partner to make any contribution to the capital of the
Partnership; or (y) reduce the Capital Account of a Limited
Partner other than in accordance with the provisions of this
Agreement, may be made only if (i) the written consent of
each Limited Partner adversely affected thereby is obtained
prior to the effectiveness thereof or (ii) such amendment
does not become effective until (A) each Limited Partner
has received written notice of such amendment and (B) any
Limited Partner objecting to such amendment has been afforded a
reasonable opportunity (pursuant to such procedures as may be
prescribed by the Board) to tender his or her Units for
repurchase by the Partnership.
12
(a) Each Limited Partner hereby represents and warrants to
the Partnership and each other Limited Partner as follows:
(i) such Limited Partner: (A) is familiar with the proposed business, financial condition, properties, operations and prospects of the Partnership, and has asked such questions and conducted such due diligence concerning such matters and concerning its acquisition of any Partnership interests as it has desired to ask and conduct, and all such questions have been answered to its full satisfaction; (B) understands that owning Units involves various risks, including the restrictions on transferability set forth in this Agreement, lack of any public or other market for such Units, the risk of owning its Units for an indefinite period of time and the risk of losing its entire investment in the Partnership; (C) is able to bear the economic risk of such investment; and (D) is acquiring its Units for investment and solely for its own beneficial account and not with a view to or any present intention of directly or indirectly selling, transferring, offering to sell or transfer, participating in any distribution or otherwise disposing of all or a portion of its Units; | |
(ii) such Limited Partner shall not Transfer or offer to Transfer such Limited Partner’s Units without compliance with the conditions and provisions of this Agreement; | |
(iii) if such Limited Partner Transfers all or any part of such Limited Partner’s Units, then, until such time as one or more transferees thereof are admitted to the Partnership as a Substituted Limited Partner with respect to the Units so Transferred, the matters to which any such transferee thereof would covenant and agree if such transferee were to execute this Agreement as a Limited Partner shall be and remain true; | |
(iv) such Limited Partner shall notify the Board immediately if any representations or warranties made herein should be or become untrue; and | |
(v) such Limited Partner shall not take any action that could have the effect of causing the Partnership (A) to lose its status as an Employees’ Securities Company or (B) to be treated as a publicly traded partnership for purposes of Section 7704(b) of the Code or otherwise to be treated as a corporation for United States federal income tax purposes. |
(b) Each Limited Partner hereby indemnifies the Partnership
and each other Partner from and against and agrees to hold the
Partnership and each other Partner free and harmless from, any
and all claims, losses, damages, liabilities, judgments, fines,
settlements, compromises, awards, costs, expenses, taxes or
other amounts (including any attorney fees, expert witness fees
or related costs) arising out of or otherwise related to a
breach of any of the representations and warranties of such
Limited Partner as set forth in this Section 4.16.
ARTICLE V.
13
Act; (b) to execute and file any other certificates
required to be filed on behalf of the Partnership with the
office of the Secretary of State; (c) to execute any
amendments to or restatements of this Agreement in accordance
with the terms of this Agreement (including the By-Laws); and
(d) to perform any other action that the Delaware Act
requires be performed by a general partner of a limited
partnership (and which may not be performed by a delegate of a
general partner).
(a) As provided in Section 5.1, subject to the
other provisions of this Agreement, the business and affairs of
the Partnership shall be managed by the Board, and such Board
shall have all powers necessary, desirable or convenient to
carry out that responsibility, including the power to engage in
securities or other transactions of all kinds on behalf of the
Partnership. The Board 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
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 shall deem proper to accomplish the
purposes of this Partnership. Without limiting the foregoing,
the Board may (i) adopt, amend and repeal By-Laws, not
inconsistent with this Agreement, that provide for the
regulation and management of the affairs of the Partnership;
(ii) fill vacancies in or remove from its number in
accordance with this Agreement (and the By-Laws); (iii) may
elect and remove such Officers and appoint and terminate such
agents as it considers appropriate; (iv) provide for the
issuance and distribution of Units by the Partnership directly
or otherwise; (v) retain one or more Advisers;
(vi) repurchase or transfer Units pursuant to applicable
law; (vii) set Record Dates with respect to various matters
in the manner provided in the By-Laws; (viii) declare and
pay distributions of income and of capital gains to Limited
Partners from the Partnership Property; (ix) establish and
maintain such cash or cash equivalent reserves as it deems
appropriate in connection with the business of the Partnership,
including reserves for fees and expenses, working capital
purposes and potential claims, if any; and (x) in general,
delegate such authority as it considers necessary or desirable
to any Officer of the Partnership, any committee of the Board,
any agent or employee of the Partnership, or any such custodian,
transfer agent, distribution disbursing agent, shareholder
servicing agent, administrative services agent, distributor of
Units (if any) or Advisers. Any determination as to what is in
the best interests of the Partnership made by the Board in good
faith shall be conclusive. The powers delegated to the Board in
this Section 5.3 are without prejudice to the
delegated powers of the Board set forth in the other provisions
of this Agreement (and the By-Laws).
14
(b) In construing the provisions of this Partnership
Agreement, the presumption shall be in favor of a grant of power
to the Board. Unless otherwise specified herein or required by
law, any action by the Board shall be deemed effective if
approved or taken by a majority of the Directors then in office.
(c) The parties hereto intend that, except to the extent
otherwise expressly provided herein, each Director shall be
vested with the same powers, authority and responsibilities on
behalf of the Partnership as are customarily vested in a
director of a business corporation organized pursuant to the
General Corporation Law of the State of Delaware.
(b) The Board may also, at any time and from time to time,
contract with any Person appointing it or them as the exclusive
or nonexclusive distributor or underwriter for the Units or for
other securities to be issued by the Partnership, or appointing
it or them to act as the administrator, custodian, transfer
agent, distribution disbursing agent and/or shareholder
servicing agent for the Partnership.
(c) The Board is further empowered, at any time and from
time to time, to contract with any Persons to provide such other
services to the Partnership as the Board determines to be
necessary or desirable to the business of the Partnership.
(a) A Director may voluntarily resign from the Board upon
the giving of notice thereof to the Partnership, such
resignation to take effect upon receipt of such notice by the
Partnership or such later date as set forth in such notice.
(b) Any Director may be removed either: (i) with or
without cause by the action of at least two-thirds of the
remaining Directors; (ii) by failure to be re-elected by
the Limited Partners at a meeting of Limited Partners duly
called for such purpose; or (iii) by the affirmative vote
of a Majority in Interest of the Limited Partners. The removal
of a Director shall in no way derogate from any rights or powers
of such Director, or the exercise thereof, or the validity of
any actions taken pursuant thereto, prior to the date of such
removal.
(c) In the event of the Incapacity of a Director, such
Director shall immediately cease to be a Director. In the event
of the Incapacity of all Directors, an Officer shall as promptly
as practicable convene a meeting of Limited Partners for the
purpose of electing new Directors.
15
(d) The resignation, removal or Incapacity of a Director
shall not affect any rights or liabilities of such Director that
matured prior to such event.
(a) An annual meeting of the Board shall be held without
notice other than this provision. The Board may provide, by
resolution, the time and place, either within or without the
State of Delaware, for the holding of the annual meeting and any
additional regular meetings without notice other than such
resolution. Special meetings of the Board may be called by the
chairman of the Board, or, if no such chairman exists, at the
request of any two Directors. The person or persons authorized
to call special meetings of the Board may fix any place, either
within or without the State of Delaware, as the place for
holding any special meeting of the Board called by them. Written
notice of any special meeting of the Board shall be given as
follows: (i) by mail to each Director at the
Director’s mailing address at least five business days
prior to the meeting; or (ii) by personal delivery, e-mail
or facsimile transmission at least three business days prior to
the meeting to each Director. If mailed by post, such notice
shall be deemed to be delivered when deposited in the United
States mail, so addressed, with postage thereon prepaid. If
notice be given by e-mail or facsimile transmission, such notice
shall be deemed to be delivered when the e-mail or facsimile
transmission is transmitted by the sender.
(b) Any Director may waive notice of any meeting before,
during or after such meeting. The attendance of a Director at
any meeting shall constitute a waiver of notice of such meeting,
except where a Director attends a meeting for the express
purpose of objecting to the transaction of any business because
the meeting is not lawfully called or convened. Neither the
business to be transacted at, nor the purpose of, any regular or
special meeting of the Board need be specified in the notice or
waiver of notice of such meeting.
(c) A majority of the number of Directors shall constitute
a quorum for the transaction of business at any meeting of the
Board, but if less than such majority is present at a meeting, a
majority of the Directors present may adjourn the meeting from
time to time without further notice. Except as otherwise
required by the Delaware Act, the 1940 Act, the Exemptive Order
or this Agreement, the action of the majority of the Directors
present at a meeting at which a quorum is present shall be the
action of the Board. Each Director shall be entitled to one vote
upon all matters submitted to the Board.
(d) Unless otherwise required by the 1940 Act, any action
required or permitted to be taken at any meeting of the Board or
by a committee thereof may be taken without a meeting without
prior notice and without a vote if the Directors that would be
required to approve such action at a meeting at which all
Directors were present and voted consent thereto in writing, and
the writing or writings are filed with the minutes of
proceedings of the Board or such committee.
(e) Any Director may participate in a meeting of the Board
or any committee thereof in person or by means of conference
telephone or similar communications equipment by which all
persons participating in the meeting can hear and speak to each
other at the same time. Other than specific matters for which
the 1940 Act requires an in-person meeting, such participation
shall constitute presence in person at the meeting. A Director
who is present at a meeting of the Board at which action on any
matter taken shall be presumed to have assented to the action
taken unless a dissent shall be entered in the minutes of the
meeting or unless the Director files a written dissent to such
action with the person acting as the secretary of the meeting
before the adjournment thereof or shall forward such dissent by
registered mail to the Partnership immediately after the
adjournment of the meeting. Such right to dissent shall not
apply to a Director who voted in favor of such action.
16
17
ARTICLE VI.
(a) Each Partner’s Capital Account shall be increased by: (i) the amount of that Partner’s Capital Contribution; (ii) the amount of Net Profit (or items thereof) allocated to that Partner; and (iii) any other amounts appropriate under the Treasury Regulations. | |
(b) Each Partner’s Capital Account shall be decreased by: (i) the amount of Net Loss (or items thereof) allocated to that Partner; (ii) all cash amounts distributed to that Partner pursuant to this Agreement (including any amounts distributed in repurchase of that Partner’s Units), other than any amount required to be treated as a payment for property or services for United States federal income tax purposes; (iii) the fair market value of any property distributed in kind to that Partner (including the fair market value of any property distributed in repurchase of that Partner’s Units), net of any liabilities secured by such distributed property that such Partner is considered to assume or take subject to for United States federal income tax purposes); and (iv) any other amounts appropriate under the Treasury Regulations. | |
(c) All provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with the Code and Treasury Regulations thereunder and shall be interpreted and applied in a manner consistent with such law. |
18
19
expense with respect to a newly issued Unit, a transferred Unit
and a repurchased Unit. Upon admission as a Substituted Limited
Partner, a transferee of a Unit shall succeed to the Capital
Account of the transferor Partner to the extent it relates to
the transferred Unit.
ARTICLE VII.
20
with respect to such distribution, in proportion to the
Partners’ Units. A Director, in its capacity as a Director,
shall not be entitled to any distributions.
(b) Except as otherwise provided for in this Agreement and
unless prohibited by the 1940 Act, any expenditures payable by
the Partnership, to the extent determined by the Board (or its
designated agent) to have been paid or withheld on behalf of, or
by reason of particular circumstances applicable to, one or more
but fewer than all of the Partners, shall be charged to only
those Partners on whose behalf such payments are made or whose
particular circumstances gave rise to such payments. Such
charges shall be treated as Tax Withholding subject to
Section 7.6(a), including the provisions of
Section 7.6(a) relating to Withholding Advances.
(c) Notwithstanding any other provision of this Agreement
to the contrary, the Board shall have the power to set off from
any amount owed a Partner pursuant to this Agreement any amount
owed by such Partner to the Partnership; provided, however, that
in no event will the Partnership withhold any amounts from a
Partner, require any payment from a Partner or allocate expenses
to a Partner, except in compliance with the 1940 Act.
21
ARTICLE VIII.
(a) The Board may from time to time, in its discretion and
on such terms and conditions as it may determine, cause the Fund
to repurchase Units or portions thereof pursuant to written
tenders or other offers to purchase Units.
(b) In the event the Partnership determines to make a
repurchase offer pursuant to paragraph (a) of this
Section 8.1, the Partnership will provide advance notice of
its intention to conduct the repurchase offer to Limited
Partners (the “Advance Notice”), and each Limited
Partner agrees with the Partnership and each other Limited
Partner that it will not participate in such repurchase offer
unless, in response to such Advanced Notice, such Limited
Partner informs the Partnership in writing as to the Limited
Partner’s intention to tender a specified number of Units
pursuant to the repurchase offer no later than the date
specified in such Advanced Notice.
(a) The Board, in its discretion, may, from time to time
cause the Partnership to repurchase any or all Units from a
Limited Partner in any of the following events: (i) any
attempted direct or indirect unauthorized Transfer of Units by a
Limited Partner, (ii) a Board determination that the
continued participation in the Partnership by the Limited
Partner could jeopardize the tax or regulatory status of the
Partnership or otherwise harm the Partnership or the other
Limited Partners, (iii) any breach by the Limited Partner
of this Agreement or any other agreement between the Limited
Partner and the Partnership; or (iv) the Board determines that
it is in the best interest of the Partnership or any Limited
Partner to do so.
(b) The purchase price payable in respect of a repurchased
Unit pursuant to this Section 8.2 shall be equal to
the Unit’s Net Asset Value on the repurchase date and shall
be paid in cash, without interest, or, in the discretion of the
Board, in marketable securities (or any combination of
marketable securities and cash).
(a) A Limited Partner may not Transfer all or any portion
of his, her or its Units to any Person except with the prior
written approval of the Partnership, which approval may be
granted or withheld in the discretion of the Partnership (a
Transfer so approved, a “Permitted Transfer”).
Any attempted Transfer of a Unit other than in accordance with
this Agreement shall be null and void and of no force or effect
whatsoever, and the purported transferee shall have no rights as
a Limited Partner; provided that such attempted Transfer shall
constitute a breach of this Agreement giving the Partnership the
right to repurchase such Unit pursuant to
Section 8.2 hereof and all other rights and remedies
hereunder or at law or in equity.
(b) Prior to approving a proposed Transfer as a Permitted
Transfer and admitting the proposed transferee as a Substituted
Limited Partner, the Partnership, in the Board’s
discretion, shall require the satisfaction of such conditions as
it determines appropriate, including without limitation, the
following:
(i) such Transfer must be to a Person who is eligible to own Units of the Partnership; | |
(ii) the transferring Limited Partner provides such proper notice to the Fund, which notice shall certify the identity of the transferee, that the transferee is a Person who is eligible to own Units of the Partnership, the number of Units proposed to be transferred (or all of such transferring Limited Partner’s fractional Unit if such Limited Partner holds less than one whole Unit) and such other information as requested by the Board; |
22
(iii) such Transfer, itself or together with any other Transfers, would not result in the Partnership being treated as a publicly traded partnership within the meaning of Section 7704(b) of the Code or otherwise being treated as a corporation for United States federal income tax purposes; | |
(iv) such Transfer does not require the registration or qualification of such Units pursuant to any applicable federal or state securities or “blue sky” laws; | |
(v) such Transfer does not result in a violation of other laws ordinarily applicable to such transactions; | |
(vi) the transferor Limited Partner and purported transferee each shall have represented to the Board in writing that the Units subject to such Transfer were not, and have never been, Transferred, directly or indirectly, on (A) any national securities exchange registered under section 6 of the 1934 Act, (B) any national securities exchange exempt from registration under section 6 of the 1934 Act, (C) any regional or local securities exchange (D) any non-U.S. securities exchange, or (E) any interdealer quotation system that regularly disseminates firm buy or sell quotations by identified brokers or dealers by electronic means or otherwise; | |
(vii) the transferor Limited Partner and purported transferee shall each have represented to the Board in writing that such Transfer was not facilitated or effected, directly or indirectly, on or through (A) any person, such as a broker or a dealer, making a market in Units or (B) any person that makes available to the public (including customers or subscribers) bid or offer quotes with respect to Units or stands ready to effect buy or sell transactions at the quoted prices for itself or on behalf of others; | |
(viii) no facts are known to the Board that cause the Board to conclude that such Transfer will have a material adverse effect on the Partnership; | |
(ix) the transferee has executed and delivered to the Partnership a counterpart of this Agreement; | |
(x) payment by the transferor Limited Partner or proposed transferee to the Partnership of an amount determined by the Board to be equal to the costs and expenses incurred in connection with such Transfer, including costs incurred in preparing and filing such amendments to this Agreement as may be required; | |
(xi) if required by the Board, execution and affirmation to an instrument by the terms of which such Person acknowledges that the relevant Transfer of Units have not been registered under the of Securities Act, or any applicable state securities laws, and covenants, represents and warrants that such Person acquired the relevant Units for investment only and not with a view to the resale or distribution thereof; and | |
(xii) any other information or documentation as the Board may request. |
(c) Upon the proper completion of the foregoing conditions
to the Board’s satisfaction, the books and records of the
Partnership and Schedule A hereto will be updated to
reflect the proposed transferee’s admission to the
Partnership as a Substituted Limited Partner.
23
ARTICLE IX.
(a) The books and records of the Partnership shall be kept
on the cash basis or the accrual basis, as determined by the
Board. The Partnership shall report its operations for tax
purposes on the cash method or the accrual method, as determined
by the Board. The taxable year of the Partnership shall be the
calendar year, unless the Board shall designate another taxable
year for the Partnership that is a permissible taxable year
under the Code.
(b) The books and records of the Partnership shall be
audited by the Partnership’s independent accountants as of
the end of each Fiscal Year, commencing with the first partial
Fiscal Year, of the Partnership.
24
the extent permissible under applicable law. Each Limited
Partner hereby agrees to execute any relevant documents
(including a power of attorney authorizing such a filing), to
furnish any relevant information and otherwise to do anything
necessary in order to facilitate any such composite, group or
similar filing. Any taxes paid by the Partnership in connection
with any such composite, group or similar filing shall be
treated as Tax Withholding subject to
Section 7.6(a), including the provisions of
Section 7.6(a) relating to Withholding Advances.
(a) The General Partner will be the tax matters partner
(the “Tax Matters Partner”) as provided in
Section 6231(a)(7) of the Code. The Board may designate and
authorize a Person, who may be the General Partner, for purposes
of subsection 165(1.15) of the Income Tax Act (Canada)
(“Canadian Representative”) and any
corresponding provincial income tax provision and for all other
purposes to make any objection or appeal in respect of a
determination relating to the Partnership under the Income Tax
Act (Canada) or any other Canadian federal or provincial income
tax legislation.
(b) Each Person (for purposes of this provision, a
“Pass-Through Limited Partner”) that holds or
controls a Unit on behalf of, or for the benefit of another
Person or Persons, or which Pass-Through Limited Partner is
beneficially owned (directly or indirectly) by another Person or
Persons shall, within 30 days following receipt from the
Tax Matters Partner or the Canadian Representative of a notice
or document, convey such notice or other document in writing to
all holders of beneficial interests in the Partnership holding
such Interest through such Pass-Through Limited Partner.
(c) All expenses incurred by the Tax Matters Partner and
the Canadian Representative in connection with any audit,
investigation, settlement or other tax-related matter involving
the Partnership shall be borne by the Partnership. The Tax
Matters Partner and the Canadian Representative shall not be
liable to the Partnership or any Limited Partner for any action
it takes or fails to take as Tax Matters Partner and the
Canadian Representative with respect to any administrative or
judicial proceeding involving “partnership items” (as
defined in Section 6231 of the Code) of the Partnership,
unless such action or failure to act constitutes willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such office. The
Partnership (but not the Limited Partners themselves) shall
indemnify the Tax Matters Partner and the Canadian
Representative as provided in Section 10.2 to the
same extent as if the Tax Matters Partner and the Canadian
Representative were an Indemnified Person.
(d) In the event the Partnership becomes the subject of an
income tax audit by any federal, state, local or Canadian
authority, to the extent the Partnership is treated as an entity
for purposes of such audit, including administrative settlement
and judicial review, the Tax Matters or the Canadian
Representative Partner shall be authorized to act for, and its
decision shall be final and binding upon, the Partnership and
each Partner. The Partnership shall bear all expenses incurred
in connection with any such audit, investigation, settlement or
review.
25
ARTICLE X.
(a) No Director, Officer (including Directors or Officers
who serve at the Partnership’s request as directors,
officers, members, partners or trustees of another organization
in which the Partnership has any interest as a stockholder,
creditor or otherwise), employee or General Partner, or any of
their respective Affiliates, shareholders, officers, directors,
partners, employees, agents and representatives (each an
“Indemnified Person”) shall have any liability,
responsibility or accountability in damages or otherwise to any
Limited Partner or the Partnership for, and the Partnership
agrees, to the fullest extent permitted by law, to indemnify,
pay, protect and hold harmless each Indemnified Person from and
against, any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, proceedings, costs,
expenses and disbursements of any kind or nature whatsoever
(including all reasonable costs and expenses of attorneys,
defense, appeal and settlement of any and all suits, actions or
proceedings instituted or threatened against the Indemnified
Persons or the Partnership) and all costs of investigation in
connection therewith which may be imposed on, incurred by, or
asserted against the Indemnified Persons or the Partnership in
any way relating to or arising out of, or alleged to relate to
or arise out of, any action or inaction on the part of the
Partnership, on the part of the Indemnified Persons when acting
on behalf of the Partnership or otherwise in connection with the
business or affairs of the Partnership (collectively, the
“Indemnified Liabilities”); provided that the
Partnership shall not be liable to any Indemnified Person for
any portion of any Indemnified Liabilities which results from
such Indemnified Person’s willful misfeasance, bad faith or
gross negligence in the performance of his, her or its duties or
by reason of his, her or its reckless disregard of his, her or
its obligations and duties.
(b) Expenses, including reasonable counsel fees incurred by
any such Indemnified Person, shall be paid from time to time by
the Partnership in advance of the final disposition of any such
action, suit or proceeding upon receipt of an undertaking by or
on behalf of such Indemnified Person to repay amounts so paid to
the Partnership if it is ultimately determined that
indemnification of such expenses is not authorized under this
Section 10.2, provided, however, that either
(i) such Indemnified Person shall have provided appropriate
security for such undertaking, (ii) the Partnership shall
be insured against losses arising from any such advance payments
or (iii) either a majority of the Directors who are not
seeking such indemnification (the “Disinterested
Directors”), if any, acting on the matter (provided
that a majority of the Disinterested Directors, if any, then in
office act on the matter), or independent legal counsel
acceptable to the Partnership in a written opinion, shall have
determined, based upon a review of readily available facts (as
opposed to a full trial type inquiry) that there is reason to
believe that such Indemnified Person will be found entitled to
indemnification under this Article XI. The
Partnership shall pay any and all such expenses within sixty
(60) days after receipt of a written request therefor is
received by the Partnership, and the Partnership’s rights
to repayment of such amounts shall be secured by the Indemnified
Person’s Interest in the Partnership, if any, or by such
other security as the Board may require. In the event that a
final judicial (or binding arbitration)
26
determination is made that the Partnership is not so obligated
in respect of any amount paid by it to a particular Indemnified
Person, such Indemnified Person will refund such amount within
sixty (60) days of such final determination, and in the
event that a final determination is made that the Partnership is
so obligated in respect to any amount not paid by the
Partnership to a particular Indemnified Person, the Partnership
will pay such amount to such Indemnified Person within sixty
(60) days of such final determination, in either case
together with interest (at the lesser of (i) the Applicable
Rate and (ii) the maximum rate permitted by applicable law)
from the date paid by the Partnership until repaid by the
Indemnified Person or the date it was obligated to be paid by
the Partnership until the date actually paid by the Partnership
to the Indemnified Person.
(c) Any indemnification rights provided for in this
Section 10.2 shall be retained by any removed,
resigned or withdrawn Indemnified Person and its constituent
Indemnified Persons. Any indemnification rights provided for in
this Section 10.2 shall also be retained by any
Person who has acted in the capacity of Officer, Director,
employee, General Partner or affiliate of an Indemnified Person
after such Persons shall have ceased to hold such positions.
(d) The right of indemnification hereby provided shall not
be exclusive of or affect any other rights to which such
Indemnified Person may otherwise be entitled by contract or as a
matter of law or equity and shall extend to such Indemnified
Person’s successors, assigns and legal representatives. As
used in this Section 10.2, the term
“Indemnified Person” shall include such person’s
heirs, executors and administrators. Nothing contained in this
Article X shall affect any rights to indemnification
to which personnel of the Partnership and other Persons may be
entitled by contract or otherwise under law, nor the power of
the Partnership to purchase and maintain liability insurance on
behalf of any such Person; provided, however, that the
Partnership shall not purchase or maintain any such liability
insurance in contravention of applicable law, including the 1940
Act.
(e) As to any matter disposed of (whether by a compromise
payment, pursuant to a consent decree or otherwise) without an
adjudication by a court, or by any other body before which the
proceeding was brought, that such Indemnified Person is liable
to the Partnership or its Limited Partners by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his, her or its office,
indemnification shall be provided if (i) approved, after
notice that it involves such indemnification, by at least a
majority of the Disinterested Directors, if any, acting on the
matter (provided that a majority of the Disinterested Directors,
if any, then in office act on the matter) upon a determination,
based upon a review of readily available facts (as opposed to a
full trial type inquiry) that such Indemnified Person is not
liable to the Partnership or its Limited Partners by reason of
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of his, her or
its office or (ii) there has been obtained an opinion in
writing of independent legal counsel acceptable to the
Partnership, based upon a review of readily available facts (as
opposed to a full trial type inquiry), that such Indemnified
Person is not liable to the Partnership or its Limited Partners
by reason of willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of his,
her or its office. Any approval pursuant to this
Section 10.2(e) shall not prevent the recovery from
any Indemnified Person of any amount paid to such Indemnified
Person in accordance with this Section 10.2 as
indemnification if such Indemnified Person is subsequently
adjudicated by a court of competent jurisdiction to have been
liable to the Partnership or its Limited Partners by reason of
willful misfeasance, bad faith, gross negligence or reckless
disregard of the duties involved in the conduct of such
Indemnified Person’s office.
(f) For purposes of the opinions referred to in paragraphs
(b) and (e) of this Section 10.2,
independent legal counsel shall be entitled to rely upon a
rebuttable presumption that the Indemnified Person has not
engaged in willful misfeasance, bad faith, gross negligence or
reckless disregard of the duties involved in the conduct of such
Indemnified Person’s office.
(g) In case any Limited Partner or former Limited Partner
shall be held to be personally liable solely by reason of his,
her or its being or having been a Limited Partner and not
because of his, her or its acts or omissions or for some other
reason, the Limited Partner or former Limited Partner (or his,
her its heirs, executors, administrators or other legal
representatives or in the case of a corporation or other entity,
its
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corporate or other general successor) shall be entitled to be
held harmless from and indemnified out of the assets of the
Partnership against all loss and expense arising from such
liability.
(h) The exercise by the Board of its powers and discretions
hereunder shall be binding upon everyone interested.
(i) No person dealing with the General Partner or the Board
shall be bound to make any inquiry concerning the validity of
any transaction made or to be made by the General Partner or the
Board or to see to the application of any payments made or
property transferred to the Partnership or upon its order.
(j) The General Partner, an employee, Officer or Director
shall be liable only for his, her or its own willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of the office of such
General Partner, employee, Officer or Director, and shall not be
liable for errors of judgment or mistakes of fact or law. The
General Partner, employees, Officers and Directors may (but
shall not be required to) take advice of counsel or other
experts with respect to all matters, including the meaning and
operation of this Agreement, and shall be under no liability for
any act or omission in accordance with such advice or for
failing to follow such advice, but nothing herein contained
shall protect the General Partner, any employee, Officer, or
Director against any liability to which it, he or she would
otherwise be subject by reason of willful misfeasance, bad
faith, gross negligence or reckless disregard of the duties
involved in the conduct of its, his or her office. The General
Partner, employees, Officers and Directors shall not be required
to give any bond as such, nor any surety if a bond is required.
(k) The General Partner and the Directors shall not be
responsible or liable in any event for any neglect or wrongdoing
of any other Person, including any Officer, agent, employee,
Adviser, or distributor of Units (if any) of the Partnership;
the General Partner shall not be responsible for the act or
omission of any Director; and no Director shall be responsible
for the act or omission of any other Director or of the General
Partner. Nothing herein contained, however, shall protect the
General Partner or any Director against any liability to which
it, he or she would otherwise be subject by reason of willful
misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of his, her or its office.
(l) Every note, bond, contract, instrument, certificate or
undertaking and every other act or thing whatsoever issued,
executed or done by or on behalf of the Partnership, the General
Partner, the employees, 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 or with respect to
its, their, his, her or its capacity as the General Partner,
employees, Officers or Officer, Directors or Director, as the
case may be, and such General Partner, employees, Officers,
Directors or Director shall not be personally liable thereon.
(m) With respect to the liabilities of the Partnership, all
such liabilities: (i) shall be liabilities of the
Partnership as an entity, and shall be paid or otherwise
satisfied from the Partnership’s assets; and; (ii) except
to the extent otherwise required by law, shall not in any event
be payable in whole or in part by any Partner, employee,
Director or Officer, or by any director, officer, trustee,
employee, agent, shareholder, beneficiary, or partner of any of
them.
(n) The Directors may cause the Partnership, at the
Partnership’s expense, to purchase insurance to insure the
Indemnified Persons against liability hereunder (including
liability arising in connection with the operation of the
Partnership), including for a breach or an alleged breach of
their responsibilities hereunder.
ARTICLE XI.
(a) The Partnership shall be dissolved upon the happening
of: (i) the entry of a decree of judicial dissolution
under Section 17-802 of the Delaware Act; (ii) the
voluntary bankruptcy, liquidation or other
28
dissolution of the Partnership; (iii) the sale or other
disposition at any one time of all or substantially all of the
assets of the Partnership; (iv) the withdrawal of the
General Partner, unless (A) the Board, 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
(B) within 90 days after the withdrawal, Limited
Partners holding a majority of the outstanding Units 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; (v) the election by the
Board to dissolve the Partnership, subject, to the extent
required by the 1940 Act, to the consent of the Limited
Partners; or (vi) dissolution required by operation of law.
(b) Dissolution of the Partnership shall be effective on
the day on which the event occurs giving rise to the
dissolution, but the Partnership shall not terminate until the
assets of the Partnership have been distributed as provided in
Section 11.4 and the Certificate of Limited
Partnership has been canceled.
(a) to the payment of the expenses of liquidation and to
creditors (including Partners who are creditors, to the extent
permitted by law) in satisfaction of liabilities of the
Partnership other than liabilities for distributions to
Partners, in the order of priority as provided by law;
(b) to the setting up of any reserves that the liquidator
may deem necessary or appropriate for any anticipated
obligations or contingencies of the Partnership or of the
liquidator arising out of or in connection with the operation or
business of the Partnership. Such reserves may be paid over by
the liquidator to an escrow agent or trustee proposed and
approved by the liquidator to be disbursed by such escrow agent
or trustee in payment of any of the aforementioned obligations
or contingencies and, if any balance remains at the expiration
of such period as the liquidator shall deem advisable, to be
distributed by such escrow agent or trustee in the manner
hereinafter provided; then
(c) to the Partners or their legal representatives in
accordance with the positive balances in their respective
Capital Accounts, as determined after taking into account all
adjustments to Capital Accounts for all periods.
29
ARTICLE XII.
ARTICLE XIII.
(a) The Partnership may merge or consolidate with or into
one or more limited partnerships formed under the Delaware Act
or other business entities pursuant to an agreement of merger or
consolidation that has been approved in the manner contemplated
by Section 17-211 of the Delaware Act.
(b) Notwithstanding anything to the contrary contained
herein, an agreement of merger or consolidation approved in
accordance with Section 17-211(b) of the Delaware Act may,
to the extent permitted by Section 17-211(g) of the
Delaware Act, (i) effect any amendment to this Agreement,
(ii) effect the adoption of a new partnership agreement for
the Partnership if it is the surviving or resulting limited
partnership in the merger or consolidation, or
(iii) provide that the partnership agreement of any other
constituent limited partnership to the merger or consolidation
(including a limited partnership formed for the purpose of
consummating the merger or consolidation) shall be the
partnership agreement of the surviving or resulting limited
partnership.
ARTICLE XIV.
(a) Each Limited Partner, by its execution of this
Agreement (or a subscription agreement if applicable) hereby
irrevocably makes, constitutes and appoints each of the General
Partner, the Directors and Officers and the Adviser as such
Limited Partner’s true and lawful agent and
attorney-in-fact, with full power of substitution and full power
and authority in its name, place and stead, acting singly, to
make, execute, sign,
30
acknowledge, swear to, record and file the following documents
and instruments in accordance with the other provisions of this
Agreement: (i) this Agreement and a Certificate of Limited
Partnership, a Certificate of Doing Business Under Fictitious
Name and any other instrument or filing which the Board or the
Officers of the Partnership consider necessary or desirable to
carry out the purposes of this Agreement or the business of the
Partnership or that may be required under the laws of any state
or local government, or of any other jurisdiction; (ii) all
certificates required or desirable in connection with
distributions by the Partnership to the Limited Partners and
other certificates and instruments deemed advisable by any
Director or officer of the Partnership or the Adviser to carry
out the provisions of this Agreement and any applicable law;
(iii) any and all amendments, restatements, cancellations,
or modifications of the instruments described in paragraph
(i) above; (iv) any and all instruments related to the
admission, removal, or withdrawal of any Limited Partner;
(v) all documents and instruments that may be necessary or
appropriate to effect the dissolution and termination of the
Partnership, pursuant to the terms hereof; (vi) all
conveyances and other instruments or papers deemed advisable by
the Board, including those to effect a termination of the
Partnership and those to effect a Permitted Transfer of all or a
part of such Limited Partner’s Interest, or a repurchase of
all or part of such Limited Partner’s Interest; and
(vii) all other instruments, documents or papers which may
be required or permitted by law to be filed on behalf of the
Board or the Partnership and which are of a ministerial or
administrative nature.
(b) The foregoing power of attorney is a special power of
attorney and is coupled with an interest in favor of each of the
General Partner, the Directors and Officers and the Adviser and
as such shall be irrevocable and continue in full force and
effect notwithstanding the subsequent death or incapacity of any
party granting this power of attorney, regardless of whether the
General Partner, the Partnership, its Directors or Officers or
the Adviser have had notice thereof, and shall survive the
delivery of a Transfer by a Limited Partner of the whole or any
portion of such Limited Partner’s Interest, except that
where the transferee has been approved by the Board or Adviser
for admission to the Partnership as a substituted Limited
Partner, this power of attorney given by the transferor shall
survive the delivery of such assignment for the sole purpose of
enabling the Directors or Officers or the Adviser to execute,
acknowledge and file any instrument necessary to effect such
substitution.
(c) Each Limited Partner is aware that the terms of this
Agreement permit certain amendments to this Agreement to be
effected and certain other actions to be taken or omitted by or
with respect to the Partnership without such Limited
Partner’s consent. If an amendment to the Certificate of
Limited Partnership or this Agreement or any other action by or
with respect to the Partnership is taken in the manner
contemplated by this Agreement, each Limited Partner agrees
that, notwithstanding any objection that such Limited Partner
may assert with respect to such amendment or action, the
attorneys in fact appointed hereby are authorized and empowered,
with full power of substitution, to exercise the authority
granted above in any manner that may be deemed necessary or
appropriate to permit such amendment to be made or action
lawfully taken or omitted. Each Limited Partner is fully aware
that each Limited Partner will rely upon the effectiveness of
this special power of attorney with a view to the orderly
administration of the Partnership.
(d) This power of attorney may be exercised either by
signing separately as attorney-in-fact for each such Limited
Partner or by a single signature acting as attorney-in-fact for
all Limited Partners.
ARTICLE XV.
31
making of any notice, payment or report in accordance with the
provisions of this Section 15.1 executed by the
Board, the Transfer Agent or the mailing organization shall be
prima facie evidence of the giving or making of such notice,
payment or report. If any notice, payment or report addressed to
a Limited Partner at the address of such Limited Partner
appearing on the books and records of the Partnership is
returned by the United States or Canadian Postal Service marked
to indicate that the United States or Canadian Postal Service is
unable to deliver it, such notice, payment or report and any
subsequent notices, payments and reports shall be deemed to have
been duly given or made without further mailing (until such time
as such Limited Partner notifies the Partnership of a change of
address) if they are available for the Limited Partner at the
principal office of the Partnership for a period of one year
from the date of the giving or making of such notice, payment or
report to the other Limited Partners. Any notice to the
Partnership shall be deemed given if received by the Partnership
at the principal office of the Partnership. The Partnership may
rely and shall be protected in relying on any notice or other
document from a Limited Partner or other Person if believed by
it to be genuine.
32
of, or that its property is exempt or immune from attachment or
execution by, the courts of the State of Delaware, or that the
suit, action or proceeding is brought in an inconvenient forum,
that the venue of the suit, action or proceeding is improper or
that this Agreement or the subject matter hereof may not be
enforced in or by such court. Each Limited Partner further
waives its right to a jury trial in any suit, action or
proceeding arising out of, or relating to, this Agreement. Each
Limited Partner further agrees that no punitive or consequential
damages shall be awarded in any such suit, action or proceeding.
(b) Unless the context otherwise requires or as otherwise
specifically set forth: (i) any pronoun used in this
Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa; (ii) references to
Articles and Sections refer to Articles and Sections of this
Agreement; (iii) the term “include” or
“includes” means include or includes, without
limitation or exception, and “including” means
including, without limitation or exception; (iv) to the
extent that the Partnership, the General Partner, the Board, any
Officer, or any other Person is required or permitted to take
any action, make any determination or provide any consent
hereunder, such action, determination or consent shall be taken,
made, provided or withheld in the Partnership’s, the
General Partner’s, the Board’s, such Officer’s,
or such Person’s, as the case may be, sole and absolute
discretion; (v) any references in this Agreement to a
statute shall be to such statute or any successor law, as
amended from time to time, and the rules regulations and orders
thereunder, as amended from time to time, and any reference
herein to a specific section or sections of a statute shall be
deemed to include a reference to any corresponding provision of
successor law(s), as amended from time to time; and
(vi) all terms that relate to accounting matters shall be
interpreted in accordance with generally accepted accounting
principles in effect in the United States.
[Remainder of Page Intentionally Blank]
33
KIEWIT INVESTMENT HOLDINGS INC. |
By: | /s/ Xxxxx X. Xxxxxxx |
|
|
Name: Xxxxx X. Xxxxxxx | |
Title: Vice President | |
KIEWIT FINANCE GROUP INC. |
By: | /s/ Xxxxx X. Xxxxxxx |
|
|
Name: Xxxxx X. Xxxxxxx | |
Title: Vice President | |
34