AMENDMENT NO. 10 TO THE LIMITED PARTNERSHIP AGREEMENT OF FRANK’S INTERNATIONAL C.V. [Substitution of Limited Partner]
EXHIBIT 10.55
AMENDMENT NO. 10 TO
FRANK’S INTERNATIONAL C.V.
[Substitution of Limited Partner]
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THIS AGREEMENT (“AMENDMENT AGREEMENT NO. 10”) IS MADE EFFECTIVE
AS PER THE 1STDAY OF DECEMBER, 2017 (“AMENDMENT 10 DATE”)
BETWEEN:
(1) | Frank’s International Management B.V., a private limited liability company organized and existing under the laws of the Netherlands, having its corporate seat in Amsterdam, The Netherlands, with address ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ Den Helder, The Netherlands, registered with the trade register under number 50802275 (“FIM”); |
(2) | Frank’s International LP B.V., a private limited liability company organized and existing under the laws of the Netherlands, having its corporate seat in Amsterdam, The Netherlands, with address ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ Den Helder, The Netherlands, registered with the trade register under number 50802070 (“FILP”); |
(3) | Frank’s International N.V., a limited liability company organized and existing under the laws of the Netherlands, having its corporate seat in Amsterdam, The Netherlands, with address ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ Den Helder, The Netherlands, registered with the trade register under number 34241787 (“FINV”); |
(4) | Frank’s International Partners B.V., a private limited liability company organized and existing under the laws of the Netherlands, having its corporate seat in Amsterdam, The Netherlands, with address ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇ ▇▇ Den Helder, The Netherlands (“FIP”); these companies hereinafter each also referred to as a “Party” and jointly as the “Parties”. |
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WHEREAS:
(A) | By agreement (the “Formation Agreement”) dated the 29th day of July, 2013 (the “Formation Date”), FIM and FILP formed and entered into a limited partnership under the laws of the Netherlands (“commanditaire vennootschap”), hereinafter referred to as the “C.V.”, for the purpose of participating in and financing of other companies. |
(B) | By agreement (the “Amendment Agreement No. 1”) dated the first day of August, 2013 (the “Amendment 1 Date”), FIM and FILP have recorded: |
- the additional (non-cash) capital contribution by FILP;
- the additional (non-cash) capital contribution by FIM; and
- an update of certain provisions of the partnership agreement governing the C.V.
(C) | By agreement (the “Amendment Agreement No. 2”) dated the 8th day of August, 2013 (the “Amendment 2 Date”), FIM and FILP have recorded: |
- the additional (non-cash) capital contribution by FIM; and
- an update of certain provisions of the partnership agreement governing the C.V.
(D) | By agreement (the "Amendment Agreement No. 3") dated the 14th day of August, 2013 (the “Amendment 3 Date”), FIM, FILP and ▇▇▇▇▇▇ Holdings, Inc. (“MH”) have recorded: |
- the admission of MH as limited partner of the C.V.; and
- an update of certain provisions of the partnership agreement governing the C.V.
(E) | By agreement (the "Amendment Agreement No. 4"), dated the 14th day of August, 2013 (the “Amendment 4 Date”) FIM, FILP and MH have recorded: |
- the additional capital contribution by FILP; and
- an update of certain provisions of the partnership agreement governing the C.V.
(F) | By agreement (the "Amendment Agreement No. 5"), dated the 14th day of October, 2013 (the “Amendment 5 Date”) FIM, FILP and MH have recorded: |
- the additional capital contribution by FILP;
- the additional capital contribution by FIM; and
- an update of certain provisions of the partnership agreement governing the C.V.
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(G) | By agreement (the "Amendment Agreement No. 6"), dated the 14th day of August 2014 (the “Amendment 6 Date”), FIM, FILP and MH have recorded: |
- the deemed additional capital contribution by FILP and FIM;
- the acknowledgement that on or prior to December 31, 2014 further deemed additional capital contribution may occur by FILP and FIM; and
- | an update of certain provisions of the partnership agreement governing the C.V. |
(H) | By agreement (the "Amendment Agreement No. 7"), dated the 31th day of December 2014 (the “Amendment 7 Date”), FIM, FILP and MH have recorded: |
- the deemed additional capital contribution by FILP and FIM through the end of 2014;
- the acknowledgement that on or prior to December 31, 2015 further deemed additional capital contribution may occur by FILP and FIM; and
- an update of certain provisions of the partnership agreement governing the C.V. as contained in Amendment Agreement No. 6.
(I) | By agreement (the "Amendment Agreement No. 8"), dated the 31th day of December 2015 (the “Amendment 8 Date”), FIM, FILP and MH have recorded: |
- the deemed additional capital contribution by FILP and FIM through the end of 2015;
- the acknowledgement that on or prior to December 31, 2016 further deemed additional capital contribution may occur by FILP and FIM; and
- an update of certain provisions of the partnership agreement governing the C.V. as contained in Amendment Agreement No. 7.
(J) | By agreement (“Amendment Agreement No. 9”), dated the 26th day of August 2016 (the “Amendment 9 Date”) FIM, FILP, MH and FINV have recorded: |
- the deemed additional capital contribution by FILP and FIM through the Amendment 9 Date;
- the transfer by MH of its limited partnership interest to FINV, in order to give effect to the conversion of all its convertible preferred shares in the share capital of FINV into common shares, and as a result of which MH withdraws and FINV is admitted in MH’s place as limited partner of the C.V.;
- an update of certain provisions of the partnership agreement governing the C.V. as contained in Amendment Agreement No. 8.
(K) By executing this Amendment Agreement No. 10, the Parties wish to record:
- the transfer by FINV of its limited partnership interest to FIP, as a result of which FINV withdraws and FIP is admitted in FINV’s place as limited partner of the C.V.;
- an update of certain provisions of the partnership agreement governing the C.V. as currently contained in Amendment Agreement No. 9.
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I.1 Transfer of limited partnership interest
I.1.1 | With effect as of the Amendment 10 Date, FINV and FIP have entered into a share premium contribution agreement (the “Contribution Agreement”). Pursuant to the Contribution Agreement FINV is obliged to transfer its interest as limited partner of the C.V. to FIP, which transfer FINV and FIP wish to record and effectuate by this Amendment Agreement No. 10. |
I.1.2. | Pursuant to the Contribution Agreement, FINV hereby transfers its interest as limited partner of the C.V., represented by its capital contributions account and its retained earnings account, as well as all rights and obligations ensuing there from, including any rights in respect of undistributed profits of the current financial year and any past periods (the "Transferred Interest") to FIP, which accepts the Transferred Interest from FINV. |
As a result of the transfer of the Transferred Interest, FINV withdraws as limited partner of the C.V. and FIP is admitted as limited partner of the C.V. and shall fully succeed FINV as limited partner of the C.V. in relation to the Transferred Interest, and any and all rights, titles and interest of FINV in the C.V. in relation to the Transferred Interest.
I.1.3 | The Parties hereby confirm that, upon FINVs withdrawal, FINV and the C.V. shall have no outstanding obligations towards each other. |
I.1.4 | FINV hereby represents and warrants ("garandeert") to FIP the following in relation to the Transferred Interest: |
a. it has the legal authority to contribute and transfer the Transferred Interest;
b. the Transferred Interest is not encumbered with any attachment;
c. the Transferred Interest is not encumbered with any pledge or usufruct, or any other security right or right of use;
d. it has complied with all its obligations under the Amendment Agreement No. 9 and there are no outstanding obligations to make capital contributions to the C.V.; and
e. it does not hold legal title to any assets of the C.V.
I.2 | Consent / Amendment partnership agreement |
I.2.1 | By signing this Amendment Agreement No. 10, FILP, FIM and FINV confirm that they have granted their prior consent to the transfer of FINV of its limited partnership interest to FIP, pursuant to which FINV withdraws as a limited partner of the C.V. and FIP is admitted as limited partner of the C.V. |
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I.2.2 | FIM, FILP and FIP hereby confirm for the avoidance of doubt that they continue the C.V. and wish to update the partnership agreement governing the C.V., as provided in this Amendment Agreement No. 10. |
II. | Updated and restated complete text of the partnership agreement |
The provisions of the Amendment Agreement No. 9 are hereby modified in order to update the partnership agreement to reflect the changes as of the Amendment 10 Date. The complete text of the terms and conditions of their relationship as partners of the C.V. as modified in connection with the above, now reads as follows.
1. | Definitions |
In this Agreement and the recitals hereto the following expressions shall have the meaning set opposite them:
“C.V.”: | Frank’s International C.V., a limited partnership established under Dutch law as described in Article 2 of this Agreement; |
“Formation Date”: | July 29, 2013; |
“General Partner”: | - FIM; |
- or any replacement general partner admitted after the date hereof;
“Limited Partner(s)”: | - FILP; |
- FIP; and
- any limited partner admitted after the date hereof, or in singular any one of them;
“Lower-tier Partners”: | has the meaning ascribed to it in Article 12.4. |
“Managing Partner”: | the General Partner entrusted with the management of the C.V.; |
“Partners”: | the General Partner and the Limited Partner(s), or in singular any one of them; |
“Percentage Interest” | has the meaning ascribed to it in Article 4.3; |
“Remaining Partners”: | has the meaning ascribed to it in Article 8.2; |
“Resigning Partner”: | has the meaning ascribed to it in Article 8.2; |
“Upper-tier Partner”: | has the meaning ascribed to it in Article 12.1. |
2. | Establishment of limited partnership |
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2.1 | FIM, as General Partner, and FILP, as Limited Partner, have established the C.V. with effect as from the Formation Date. As from the Amendment 3 Date, MH has been admitted as limited partner. As from the Amendment 9 Date, MH has transferred its interest as limited partner to FINV, pursuant to which MH has withdrawn as limited partner and FINV has been admitted as limited partner. As from the Amendment 10 Date, FINV has transferred its interest as limited partner to FIP, pursuant to which FINV has withdrawn as limited partner and FIP has been admitted as limited partner. |
2.2 | The C.V.’s name is Frank’s International C.V. It has its partnership’s seat in Amsterdam, and its registered office at the principal offices of the Managing Partner. |
2.3 | The objects for which the C.V. is established are to engage in any lawful act or activity for which a limited partnership may be organized under applicable law. The C.V. may engage in any and all activities necessary, desirable or incidental to the accomplishment of the foregoing, including: |
a. | to incorporate, participate in, conduct the management of and take any other financial interest in other companies and enterprises; |
b. | to render administrative, technical, financial, economic or managerial services to other companies, persons or enterprises; |
c. | to acquire, dispose of, manage and exploit real and personal property, including patents, marks, licenses, permits and other industrial property rights; |
d. | to borrow and/or lend moneys, act as surety or guarantor in any other manner, and bind itself jointly and severally or otherwise in addition to or on behalf of others, |
the foregoing whether or not in collaboration with third parties and inclusive of the performance and promotion of all activities which directly and indirectly relate to those objects, all this in the broadest sense, provided, however, that it shall not itself engage in businesses in the Netherlands.
Notwithstanding anything herein to the contrary, nothing set forth herein shall be construed as authorizing the C.V. to possess any purpose or power, or to do any act or thing, forbidden by law to a limited partnership formed under the laws of the Netherlands.
2.4 | Subject to the provisions of this Agreement and except as permitted by applicable law, (i) the Managing Partner acting for and on behalf of the C.V. may enter into and perform any and all documents, agreements and instruments, all without any further act, vote or approval of any other Partner, and (ii) the Managing Partner may authorize any person (other than a Limited Partner) to enter into and perform any document, agreement or instrument on behalf of the C.V. |
2.5 | The C.V. shall have (i) no less than one Limited Partner and (ii) one General Partner. |
3. | Term of the partnership |
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3.1 | The C.V. is established as from the Formation Date and for an indefinite period of time. |
3.2 | The C.V. shall be terminated only upon unanimous votes of the Partners. |
4. | Contributions; Adjustments to Partnership Interests; Attributions or Redemptions of Partnership Interests |
4.1.1 | As per the Formation Date, FIM has made a contribution to the C.V. of an amount in cash, which amount has been paid by FIM to the bank account of the C.V. |
As per the Amendment 2 Date, FIM has made a (non-cash) contribution to the C.V., consisting of convertible preferred shares in the capital of FINV, the FIBV Receivable and the OER Receivable (the FIBV Receivable and the OER Receivable as defined in the Amendment Agreement No. 2).
As per the Amendment 5 Date, FIM has made a contribution to the C.V. of an amount of USD 2,227 which amount shall be paid by FIM to the bank account of the C.V.
4.1.2 | As per the Formation Date, FILP has made a contribution to the C.V. of an amount in cash, which amount has been paid by FILP to the bank account of the C.V. |
As per the Amendment 1 Date, FILP has made a (non-cash) contribution to the C.V., consisting of its membership interest in Frank's International Coöperatief U.A.) and all its intercompany balances with FI Coop and/or its subsidiaries, it being understood, however, that a portion of such contribution is deemed to be a contribution by FILP to FIM and subsequently a contribution by FIM to the C.V.
As per the Amendment 4 Date, FILP has made a contribution to the C.V. of an amount of USD 299,468,341 (representing a portion of the net proceeds from the initial public offering of shares of common stock in the capital of FINV) which amount shall be paid by FILP to the bank account of the C.V., it being understood, however, that a portion of such contribution is deemed to be a contribution by FILP to FIM and subsequently a contribution by FIM to the C.V.
As per the Amendment 5 Date, FILP has made a contribution to the C.V. of an amount of USD 1,653,333 which amount shall be paid by FILP to the bank account of the C.V.
As per the Amendment 6 Date, FILP is deemed to have made a contribution to the C.V., representing an amount equal to the value of the 953,597 shares of common stock issued on the Amendment 6 Date by FINV, in relation to the vesting of restricted stock units, it being understood, however, that a portion
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of such contribution is deemed to be a contribution by FILP to FIM and subsequently a contribution by FIM to the C.V.
As per the Amendment 7 Date, FILP is deemed to have made a contribution to the C.V., representing an amount equal to the value of the 93,632 shares of common stock issued during the past period, in relation to the vesting of restricted stock units, it being understood, however, that a portion of such contribution is deemed to be a contribution by FILP to FIM and subsequently a contribution by FIM to the C.V.
As per the Amendment 8 Date, FILP is deemed to have made a contribution to the C.V., representing an amount equal to the value of the 1,089,921 shares of common stock issued during 2015, in relation to the vesting of restricted stock units, it being understood, however, that a portion of such contribution is deemed to be a contribution by FILP to FIM and subsequently a contribution by FIM to the C.V.
As per the Amendment 9 Date, FILP is deemed to have made a contribution to the C.V., representing an amount equal to the value of the 1,637,302 shares of common stock issued during 2016, in relation to the vesting of restricted stock units, it being understood, however, that a portion of such contribution is deemed to be a contribution by FILP to FIM and subsequently a contribution by FIM to the C.V.
4.1.3 | As per the Amendment 3 Date, MH has made a (non-cash) contribution to the C.V., consisting of its interests in the following companies: |
- | Frank’s International, LLC, a limited liability company established under the laws of the state of Texas, United States of America United States of America; |
- | Frank’s Casing Crew & Rental Tools, LLC, a limited liability company established under the laws of the state of Louisiana, United States of America, United States of America; and |
- | ▇▇▇▇▇’▇ ▇▇▇▇ Services, LLC, a limited liability company established under the laws of the state of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America. |
As per the Amendment 9 Date, MH has transferred its limited partnership interest to FINV and has withdrawn as limited partner, and FINV has been admitted as limited partner and succeeded MH in respect of MH’s limited partnership interest.
4.1.4 | As per the Amendment 10 Date, FINV has transferred its limited partnership interest to FIP and has withdrawn as limited partner, and FIP has been admitted as limited partner and succeeded FINV in respect of FINV’s limited partnership interest. |
4.2 | If agreed by unanimous votes of the Partners and without prejudice to Article 12 (i) the Partners can make additional contributions in cash or in kind to the C.V.; and (ii) capital contributions made by the |
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Partners to the C.V. or parts thereof can be repaid by the C.V. to the Partners. Any such additional contributions or repayments are not required to be made on a pro rata basis.
4.3 | Upon any contribution (or deemed contribution) by the Partners, the net fair market value of such contribution shall be determined and shall be taken into account for the purpose of determining the percentage interest in the C.V. (“Percentage Interest”) held by each partner, as further described in article 4.4. |
Solely for the purpose of United States federal income tax purposes, the C.V. shall maintain a capital account for each partner in accordance with Exhibit A, which reflects the
agreement of the partners regarding certain United States tax matters.
4.4 | The Percentage Interests held by the Partners will be determined as follows: |
a. | With respect to each Partner on the date hereof, the Partner’s Percentage Interest will be determined by dividing the net fair market value of the contributions (whether in cash or otherwise) made by such Partner by the net fair market value of the contributions by all the Partners. |
The Partners agree that each Partner’s Percentage Interest as of the date hereof is as follows:
FIM: 0.10%
FILP: 74.71% (approximately)
FIP: 25.19% (approximately)
b. | In connection with any subsequent contribution (or deemed contribution) of cash, property or services to the C.V., the Percentage Interests will be redetermined, as soon as the approvals required by Article 12 have been granted. Each Partner’s Percentage Interest will equal the net fair market value of the cash, property or services contributed (or deemed contributed) to the C.V. by such Partner divided by the net fair market value of the cash, property or services contributed (or deemed contributed) by all the Partners. For purposes of this calculation, (i) each Partner that owns an interest in the C.V. immediately prior to such subsequent contribution will be deemed to have made an aggregate contribution to the C.V. equal to its Percentage Interest (as in effect immediately prior to the redetermination) of the net fair market value of the C.V. immediately prior to such subsequent contribution and (ii) in connection with an offering of stock by FINV, the proceeds of such offering that FINV contributes to the C.V. will be deemed to include all the expenses of such offering and the C.V. will be treated as paying all of the expenses of the offering directly to each service provider. |
4.5 | The Managing Partner shall hold legal title to the assets of the C.V., including the assets contributed by the Partners. The Managing Partner shall hold title to such assets for the risk and account of the C.V. and the beneficial ownership in such assets shall be vested in the C.V., under the terms and conditions |
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set forth in this Agreement. If the Managing Partner is replaced, it shall immediately cause title to the assets to be transferred to its successor. The Managing Partner shall be authorized to transfer title to the assets of the C.V. to a legal entity, controlled by the Managing Partner, provided that such legal entity shall have as sole purpose the holding of assets for and on behalf of the C.V.
5. | Appointment, dismissal and authority of the Managing Partner |
5.1 | The General Partner shall be the Managing Partner. The business and affairs of the C.V. shall be managed by the Managing Partner consistent with this Agreement. Subject to the express limitations contained in this Agreement, the Managing Partner shall have complete and absolute control of the affairs and business of the C.V., and shall possess all powers necessary, convenient or appropriate to carrying out the purposes and business of the C.V., including, without limitation, doing all things and taking all actions necessary to carry out the terms and provisions of this Agreement. Subject to the rights and powers of the Managing Partner and the limitations contained herein, the Managing Partner may delegate to any person, other than a Limited Partner, any or all of its powers, rights and obligations under this Agreement and may appoint, contract or otherwise deal with any person to perform any acts or services for the C.V. as the Managing Partner may reasonably determine. The Managing Partner is specifically authorized to execute and sign in the name of and on behalf of the C.V. any and all agreements, certificates, instruments or other documents requisite to carrying out the intentions and purposes of this Agreement and of the C.V. |
5.2 | No Partner other than the Managing Partner shall be entitled to perform any act of management on behalf of the C.V. or have any authority to represent the C.V. vis-à-vis third parties. |
5.3 | The Managing Partner shall owe the same duties to the C.V. and the Partners as a member of the board of directors of FINV owes to FINV and its shareholders. Except as expressly provided in this Agreement, nothing contained in this Agreement shall be deemed to constitute any Partner an agent or legal representative of any other Partner or to create any fiduciary relationship for any purpose whatsoever, apart from such obligations between partners in a limited partnership formed under the laws of the Netherlands as may be created by applicable law. The Managing Partner shall not have any authority to act for, or to assume any obligation or responsibility on behalf of, any other Partner. |
5.4 | Except as provided by Article 3.2, Article 4.2 and Article 12 of this Agreement or by applicable law, the Managing Partner shall not require the prior approval of the Partners in relation to any action permitted by the terms of this Agreement. |
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5.5 | The C.V. shall reimburse the Managing Partner for all costs and expenses incurred by the Managing Partner that are directly attributable to the operation of the C.V., including costs for engaging third parties such as consultants, attorneys and accountants. |
6. | Financial year and annual accounts |
6.1 | The financial and tax year of the C.V. will coincide with the calendar year. |
6.2 | After the end of the financial year, or after termination of the C.V., the Managing Partner will draw up (annual) financial statements of the C.V., in such form as determined by the Managing Partner. The financial statements of the C.V. shall within eight months after the end of the financial year be submitted to the Partners for approval, unless the Partners have approved an extension of such period. |
6.3 | The C.V. shall prepare and timely file all tax returns required to be filed by the C.V. Each Partner shall furnish to the C.V. all pertinent information in its possession relating to the C.V’s operations that is necessary to enable the C.V.’s tax returns to be timely prepared and filed. The C.V. shall bear the costs of the preparation and filing of its tax returns. |
7. | Profits and Losses; Distributions |
7.1 | Except as otherwise provided in Exhibit A relating to allocations for United States income tax purposes, profits and losses (and all items of income, gain, loss and deduction) shall be allocated among the Partners in accordance with their Percentage Interests. |
7.2 | The Limited Partner(s) will not be obliged to make any additional contributions to the C.V. for any reason. |
7.3 | Distributions. |
7.3.1 | To the extent permitted by applicable law and hereunder, distributions to Partners may be declared by the Managing Partner out of legally available funds in such amounts and on such terms (including the payment dates of such distributions) as the Managing Partner shall determine using such record date as the Managing Partner may designate; such distribution shall be made to the Partners as of the close of business on such record date on a pro rata basis in accordance with their Percentage Interests as of the close of business on such record date. |
Distributions on a non pro rata basis may be declared subject to the approvals required by Article 12.
7.3.2 | Withholding. |
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The C.V. may withhold distributions or portions thereof if it is required to do so by any applicable rule, regulation or law, and each Partner hereby authorizes the C.V. to withhold from and pay on behalf of or with respect to such Partner any amount of taxes that the Managing Partner determines that the C.V. is required to withhold and pay with respect to any amount distributable or allocable to such Partner pursuant to this Agreement. Except with respect to amounts that a Partner contributes to the C.V. upon the request of the Managing Partner, any amounts withheld pursuant to this Section 7.3.2 shall be treated as having been distributed to such Partner for all purposes of this Agreement at the time such withholding is made. To the extent that the cumulative amount of such withholding for any period exceeds the distributions to which such Partner is entitled for such period, the amount of such excess shall be considered a loan from the C.V. to such Partner, with interest accruing at the primary rate of interest then publicly quoted by JPMorgan Chase Bank or at the request of the Managing Partner, the amount of such excess shall be promptly paid to the C.V. by the Partner on whose behalf such withholding is required to be made, provided that any such payment shall not be treated as a Capital Contribution and shall not reduce the amount that a Partner is otherwise obligated to contribute to the C.V. Any income from any deemed loan shall not be allocated to or distributed to the Partner requiring such loan. Any such loan shall be satisfied out of distributions to which such Partner would otherwise be subsequently entitled until such time as the Managing Partner requests that the Partner pay such amount to the C.V. Each Partner hereby agrees to indemnify and hold harmless the C.V., the other Partners and the Managing Partner from and against any liability (including any liability for taxes, penalties, additions to tax or interest) with respect to income attributable to or distributions or other payments to such Partner.
8. | Retirement, continuation and termination |
8.1 | A Partner shall retire: |
a. | if the Partner (legal entity) is dissolved; |
b. | if the Partner’s bankruptcy becomes irrevocable; |
c. | if the Partner applies for a moratorium of payments; |
d. | if Article 1684, Book 7A of the Dutch Civil Code (“severe reason”) applies to an individual Partner, as a result of which its membership terminates. |
8.2 | If any Partner retires pursuant to any of the events specified in Article 8.1, the Partners receiving the termination notice, or the Partners who are not subject to any of the events specified in Article 8.1(a-c), or the Partners to which Article 1684, Book 7A, Dutch Civil Code does not apply - hereafter referred to as the “Remaining Partners” - shall continue the affairs of the C.V. for their own account and under the same name, unless they have notified their former co-partner - hereafter the “Resigning Partner” - within one month of the latter’s resignation that they have elected not to continue the affairs of the C.V., in which case the C.V. shall be dissolved in accordance with Article 8.7. |
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If the C.V.’s affairs are not terminated, the provisions governing this limited partnership may be amended to reflect the new legal relationship, which has arisen between the Remaining Partners (and any newly admitted Partners).
8.3 | If a Partner retires and the Remaining Partners have not elected to terminate the C.V., then the Remaining Partner(s) shall be under a duty to take over the Resigning Partner’s rights in the assets belonging to the C.V., and shall also assume all liabilities of the Resigning Partner towards the C.V., and pay the Resigning Partner the sum specified in Article 8.4. In deviation of the previous sentence, the Parties may also resolve that the Resigning Partner shall receive the Resigning Partner’s Percentage Interest of all assets of the C.V., provided that he/she assumes a pro rata portion of the liabilities of the C.V. |
8.4 | The sum referred to Article 8.3 shall be equivalent to the product of the Resigning Partner’s Percentage Interest multiplied by the net fair market value of the C.V.’s assets. |
Unless the parties make deviating arrangements, any valuations required for determining the sum of money to be paid to the Resigning Partner shall be carried out by three experts, whose valuations shall be binding upon all parties. The expert(s) shall be appointed by the parties in mutual consultation.
8.5 | The sum referred to above shall be paid to the Resigning Partner not later than one year after the first day of the month following the month of resignation. |
8.6 | If a Partner other than the Resigning Partner has no wish to continue the C.V. and notifies the other Partners within the one month period referred to in Article 8.2, such Partner shall be deemed to retire at the same time as the Resigning Partner and such Partner shall also be considered a Resigning Partner for the purposes of this Article. |
8.7 | The C.V. shall be terminated upon the occurrence of any of the following events: |
a. | the Partners unanimously elect to terminate the C.V.; |
b. | any Partner retires and none of the other Partners wishes to continue the affairs of the C.V. in accordance with Article 8.2; |
c. | if Article 1684, Book 7A of the Dutch Civil Code applies to the entire C.V. |
8.8 | Upon the termination of the C.V., the C.V.’s affairs shall be liquidated as soon as possible by the Managing Partner or another liquidator to be appointed by the Managing Partner. |
8.9 | The liquidator shall prepare the liquidation accounts of the C.V. in order to reflect the entitlement of each Partner calculated in accordance with Article 8.4. |
Article 6 shall similarly apply to the approval of the liquidation accounts.
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8.10 | After payment of all creditors of the C.V., the remaining assets of the C.V. following its termination shall be distributed to the Partners whereby each of the Partners shall be entitled to distributions in proportion to each Partner's Percentage Interest as per the date of termination of the C.V. The Managing Partner shall in its sole discretion determine how the cash and other assets will be distributed to the each of those Partners and the Managing Partner will in its sole discretion determine the other details. |
8.11 | If there is any liquidation deficit, such deficit shall be entirely borne by the General Partner. The Limited Partner(s) shall not have any obligation to make any additional contributions for the covering of debts of the C.V. |
8.12 | Any payments to be made to the Partners in connection with the liquidation of the C.V. shall be made within one month from the date on which the liquidation accounts are established. |
Any payments to be made by the General Partner to cover any liquidation deficit pursuant to Article 8.11 shall be made within one month from the date on which the liquidation accounts are established.
8.13 | The books and records of the C.V. shall remain in the custody of the liquidator unless the former Partners determine otherwise. |
9. | Voting rights and decision making |
9.1 | Each Partner is entitled to cast one vote. Unless stated otherwise herein, all decisions to be taken by the Partners pursuant to this Agreement shall be adopted by a simple majority of the votes cast. |
9.2 | Each Partner shall appoint a natural person or legal entity to exclusively represent it in all matters regarding the C.V. Such appointment shall be valid, until a replacement is notified to the C.V. in accordance with Article 15. |
10. | Access to records and accounts |
The Partners or any of their respective designated representatives, in person or by attorney or other agent, shall, upon written demand stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose any of the books or records of the C.V.; provided, that for purposes of this sentence, a proper purpose shall mean any purpose reasonably related to such person’s interest as a Partner. In every instance where an attorney or other agent shall be the person who seeks the right to inspection, the demand shall be accompanied by a power of attorney or such other writing
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that authorizes the attorney or other agent to so act on behalf of the Partner. The demand shall be directed to the C.V. at its registered office or at its principal place of business.
11. | Confidentiality |
11.1 | The C.V. shall not, nor shall it permit any subsidiary to, disclose any Partner’s name or identity as an investor in the C.V. in any press release or other public announcement or in any document or material filed with any governmental entity, without the prior written consent of such Partner, which consent shall not be unreasonably withheld or delayed, unless such disclosure is otherwise required by applicable law or by any regulatory or self-regulatory organization having jurisdiction or by order of a court of competent jurisdiction, in which case (except with respect to disclosure that is required in connection with the filing of federal, state and local tax returns) prior to making such disclosure the C.V. shall give written notice to such Partner describing in reasonable detail the proposed content of such disclosure and shall permit such Partner to review and comment upon the form and substance of such disclosure and allow such Partner to seek confidential treatment therefor. |
11.2 | Each Partner expressly agrees to maintain, for so long as such person is a Partner and for two (2) years thereafter, the confidentiality of, and not to disclose to any person other than the C.V. (and any successor of the C.V. or any person acquiring (whether by merger, consolidation, sale, exchange or otherwise) all or a material portion of the assets or interests of the C.V. or any of its subsidiaries), another Partner or a person designated by the C.V. or any of their respective financial planners, accountants, attorneys or other advisors, any information relating to the business (current or proposed), financial structure, financial position or financial results, clients or affairs of the C.V. or any of its subsidiaries that shall not be generally known to the public, except (i) as otherwise required by applicable law or by any regulatory or self-regulatory organization having jurisdiction or by order of a court of competent jurisdiction, in which case (except with respect to disclosure that is required in connection with the filing of federal, state and local tax returns or by any regulatory or self-regulatory organization) prior to making such disclosure such Partner shall give written notice to the C.V. describing in reasonable detail the proposed content of such disclosure and shall permit the C.V. to review and comment upon the form and substance of such disclosure and allow the C.V. to seek confidential treatment therefor, and (ii) in the case of any Partner who is employed by the C.V. or any of its subsidiaries, in the ordinary course of his or her duties to the C.V. or any of its subsidiaries; provided, however, that a Partner may report to its stockholders, limited partners, members or other owners, as the case may be, regarding the general status of its investment in the C.V. (without disclosing specific confidential information). |
12. | Admission and Substitution of Partners; Participation in and by Other Partnerships |
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12.1 | a. The sale, transfer, exchange, assignment, gift, right of usufruct or other disposition, including but not limited to a disposition pursuant to a legal merger, legal division, dissolution or liquidation, whether voluntary or involuntary of all or any part of a Partner’s economic or legal interest in the C.V. shall require the prior written consent of all of the Partners. Such consent may be granted or withheld by each of them in their sole and absolute discretion. |
b. The admission and/or substitution of a Limited Partner shall require the prior written consent of all of the Partners. Admission or substitution of a Partner, a partner (limited or general partner) of such Partner (“Upper-tier Partner”) or a Lower-tier Partner (to be defined below) as referred to in this Article shall include proposed capital contributions and repayments of capital contributions, including the retirement of a Partner as referred to in article 8 of this Agreement, Upper-tier Partner or Lower-tier Partner, on a non pro rata basis, and any transfers of interests in the C.V. among Partners, including redetermination of Percentage Interests as referred to in Article 4.4.
c. | In case a Partner is a transparent entity according to Dutch tax principles, any admission and/or substitution of a Limited Partner shall in addition require the prior written consent of all of the Upper-tier Partners. |
d. | In case a Limited Partner is a transparent entity according to Dutch tax principles, any admission and/or substitution of an Upper-tier Partner shall require the prior written consent of all of the Partners and all of the Upper-tier Partners. |
e. | If C.V. has become a partner of another entity which is a transparent entity according to Dutch tax principles, any admission and/or substitution of a Limited Partner shall in addition require the prior written consent of all of the partners (limited partners and general partners) of such entity (“Lower-tier Partners”). |
12.2 | In case the C.V. wishes to become a partner (whether a limited partner or a general partner) of another entity which is a transparent entity according to Dutch tax principles, or in case another entity which is a transparent entity according to Dutch tax principles wishes to become a partner in the C.V., such other entity’s partnership agreement, statute, articles, bylaws or other governing document or agreement, whichever applies, has to contain provisions similar to Article 12.1 and this Article 12.2. |
12.3 | Any admission or substitution without the unanimous prior written consents required under this Article 12.1 shall be null and void. |
12.4 | Any admission or substitution of a Partner, an Upper-tier Partner or a Lower-tier Partner does not cause the C.V. to terminate or to dissolve. |
13. | Limited liability of Partner(s); Performance of Duties |
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13.1 | The Limited Partner(s) shall have no liability with respect to the debts of or the claims against the C.V.; each Limited Partner shall only be liable to make its agreed capital contributions. |
13.2 | Except as otherwise provided by applicable law, a Partner may, but shall not be obligated to, lend money to the C.V., act as a surety or guarantor for the C.V., or transact other business with the C.V., and has the same rights and obligations when transacting business with the C.V. as a person or entity who is not a Partner. |
13.3 | In performing its, his or her duties, each of the Partners shall be entitled to rely in good faith on the provisions of this Agreement and on information, opinions, reports or statements (including financial statements and information, opinions, reports or statements as to the value or amount of the assets, liabilities, profits or losses of the C.V. and its subsidiaries), of the following other Persons or groups: (i) one or more officers or employees of such Partner or the C.V. or any of its subsidiaries, (ii) any attorney, independent accountant or other Person employed or engaged by such Partner or the C.V. or any of its subsidiaries, or (iii) any other Person who has been selected with reasonable care by or on behalf of such Partner or the C.V. or any of its subsidiaries, in each case, as to matters which such relying Person reasonably believes to be within such other Person’s professional or expert competence. |
14. | Indemnification |
14.1 | To the fullest extent permissible by law, the C.V. shall indemnify and reimburse for, and hold harmless against, each of the Limited Partners, the Managing Partner and their respective affiliates and the stockholders, members, managers, directors, officers, partners, employees and agents of the Partners, the Managing Partner and their respective affiliates (collectively, the “Indemnified Persons”): |
a. | any and all liabilities, claims, judgments, fines and penalties (collectively, the “Claims”) incurred by an Indemnified Person as a result of any expected, threatened, pending or completed action, investigation or other proceeding, whether civil, criminal or administrative (each a “Legal Action”) in relation to any act or omission in or related to his or her capacity as Indemnified Person; and |
b. | any expenses (including reasonable attorneys’ fees and litigation costs) (collectively, “Expenses”) incurred by an Indemnified Person in connection with any Legal Action. |
14.2 | An Indemnified Person will not be held harmless, indemnified and reimbursed as referred to above in paragraph 1, if and to the extent: |
a. | a Dutch court has made a final and binding judgment that the act or omission of the Indemnified Person can be characterized as willful misconduct (opzet), willful recklessness (bewuste roekeloosheid) or serious culpability (ernstig verwijt); and/or |
b. | the costs or the loss of the Indemnified Person is covered by insurance and the insurer has compensated him or her for the costs or loss. |
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14.3 | When a Dutch court has made a final and binding judgment that an Indemnified Person has no claim to the indemnification as referred to above in paragraph 1, the Indemnified Person shall immediately repay to the C.V. any amount of indemnification it received from the company. The C.V. can demand surety for the repayment obligation of the concerned party. |
14.4 | The company shall use all its reasonable endeavors to provide for, and shall bear the cost of, insurance covering Claims against, and Expenses incurred by, the Indemnified Persons in connection with any Legal Action. |
14.5 | The C.V. may enter into agreements with the Managing Partner to provide for indemnification consistent with the terms and conditions set forth in this Article 14. Unless otherwise agreed by the Managing Partner, the C.V. shall maintain insurance, at its expense, on its own behalf and on behalf of the Indemnified Persons against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the C.V. would have the power to indemnify such person against such liability under this Article 14. |
14.6 | Expenses incurred by an Indemnified Person in defending a Proceeding shall be paid by the C.V. in advance of such Proceeding’s final disposition upon receipt of an undertaking by or on behalf of the Indemnified Person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the C.V. Such expenses incurred by other employees and agents may be so paid upon such terms and conditions, if any, as the Managing Partner deems appropriate. The indemnification and advancement of expenses set forth in this Article 14 shall continue as to an Indemnified Person who has ceased to be a named Indemnified Person and shall inure to the benefit of the heirs, executors, administrators, successors and permitted assigns of such a person. |
14.7 | Persons who are not covered by the foregoing provisions of this Article 14 and who are or were partners, employees or agents of the C.V., or who are or were serving at the request of the C.V. as employees or agents of another limited liability company, corporation, partnership, joint venture, trust or other enterprise, may be indemnified to the extent authorized at any time or from time to time by the Managing Partner. |
14.8 | The provisions of this Article 14 shall be deemed to be a contract right between the C.V. and each person who serves in such capacity at any time while this Article 14 and the relevant provisions of applicable law are in effect, and any repeal or modification of this Article 14 or any such law shall not affect any rights or obligations then existing with respect to any state of facts or Proceeding then existing. The indemnification and other rights provided for in this Article 14 shall inure to the benefit of the heirs, executors and administrators of any Indemnified Person. Except as provided in Article 14, the C.V. |
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shall indemnify any such person seeking indemnification in connection with a Proceeding initiated by such person only if such Proceeding was authorized by the Managing Partner.
14.9 | For purposes of this Article 14, references to “the C.V.” shall include, in addition to the resulting company, any constituent company (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its managers, directors, officers, employees or agents, so that any Person who is or was a manager, director, officer, employee or agent of such constituent company, or is or was serving at the request of such constituent company as a director, officer, employee or agent of another company, partnership, joint venture, trust or other enterprise, shall stand in the same position under this Article 14 with respect to the resulting or surviving company as he or she would have with respect to such constituent company if its separate existence had continued. For purposes of this Article 14, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the C.V.” shall include any service as a manager, officer, employee or agent of the C.V. that imposes duties on, or involves services by, such manager, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the C.V.” as referred to in this Article 14. |
14.10 | Anything herein to the contrary notwithstanding, any indemnity by the C.V. relating to the matters covered in this Article 14 shall be provided out of and to the extent of C.V. assets only and no Partner (unless such Partner otherwise agrees in writing or is found in a final decision of a court of competent jurisdiction to have personal liability on account thereof) shall have personal liability on account thereof or shall be required to make additional contributions to help satisfy such indemnity of the C.V. |
15. | Notices |
The notices given pursuant to this Agreement shall be in writing and shall be sufficiently given if delivered by hand (or sent by first class mail) to the recipient at the address set out below. Any notice sent by hand shall be deemed effective at the time of receipt; any notice sent by mail shall be deemed effective seven days after the date on which it was sent.
to FIM:
Frank’s International Management B.V.
Attn. Managing Director
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇
▇▇▇▇ ▇▇ ▇▇▇ Helder
The Netherlands
to FILP:
Frank's International LP B.V.
Attn. Managing Director
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ Den Helder
The Netherlands
to FIP:
Frank's International Partners B.V.
Attn. Managing Director
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇▇▇ ▇▇ Den Helder
The Netherlands
16. | Miscellaneous |
16.1 | Article headings are inserted in this Agreement for case of reference only and do not form a part of this Agreement for the purposes of interpretation. |
16.2 | If any part of this Agreement becomes invalid or unenforceable the parties shall endeavor to agree to such amendment, which shall, as far as possible, effect the intentions expressed herein. In default of such agreement, the invalidity of such provision shall not affect the other provisions of this Agreement and all provisions not affected by the invalidity shall remain in full force and effect. |
16.3 | The authentic language of this Agreement shall be the English language and all notices, reports and other communications hereunder shall be in English. |
16.4 | No provision of this Agreement may be amended or waiver without the unanimous prior written consent of the Partners. |
17. | Governing law and settlement of disputes |
17.1 | This Agreement shall be governed and construed in accordance with the laws of the Netherlands. |
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17.2 | The parties hereto shall use their best endeavors to settle any possible disputes in an amicable way. In the event conciliation fails, all disputes arising in connection with this Agreement or further agreements resulting thereof, shall be finally settled by the Court of Amsterdam, The Netherlands. |
IN WITNESS WHEREOF this Agreement was executed on the dates written below, with effect as per December 1, 2017.
Frank’s International Partners B.V.
By: Frank's International Management B.V.
Title: Managing director A
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on December 12, 2017
Title: Managing director
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: Sjaak ▇▇▇▇▇▇▇▇, on December 13, 2017
Title: Managing director B
Signature: /s/ Sjaak ▇▇▇▇▇▇▇▇
Frank’s International Management B.V.
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on December 12, 2017
Title: Managing director
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Frank’s International LP B.V.
By: Frank's International Management B.V.
Title: Managing director A
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on December 12, 2017
Title: Managing director
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: Sjaak ▇▇▇▇▇▇▇▇, on December 13, 2017
Title: Managing director B
Signature: /s/ Sjaak ▇▇▇▇▇▇▇▇
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Frank’s International N.V.
By: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on December 12, 2017
Title: Managing director
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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By co-signing this Amendment Agreement No. 10 to the partnership agreement of the C.V., the following party, of which the C.V. directly is a partner, confirms its prior consent to:
(i) | the transfer of FINV of its limited partnership interest to FIP, pursuant to which FINV has withdrawn as a limited partner of the C.V.; and |
(ii) | the admission of FIP as limited partner of the ▇.▇. |
▇▇▇▇▇'▇ International, LP,
represented by its general partner Frank's International GP, LLC,
on its turn represented by:
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: SVP, General Counsel and Secretary
Signature: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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EXHIBIT A
United States Tax Provisions
United States Tax Provisions
This Exhibit A reflects the agreement of the Partners regarding certain UNITED STATES TAX MATTERS, including that for United States federal income tax purposes, the C.V. shall maintain a capital account for each Partner and shall allocate all items of the C.V.’s income, gain, loss and deduction as provided for in this Exhibit A.
A-1. Definitions. Capitalized words and phrases used in this Exhibit A have the respective meanings ascribed to them in Amendment No. 5 to The Limited Partnership Agreement of Frank’s International C.V. dated effective October 14, 2013 (the “Agreement”) except as otherwise provided below. As used in this Exhibit A, the following terms shall have the following meanings:
1 “Adjusted Capital Account” means the capital account maintained for each Partner, (a) increased by any amounts that such Partner is obligated to restore or is treated as obligated to restore under Treasury Regulation Sections 1.704-1(b)(2)(ii)(c), 1.704-2(g)(1) and 1.704-2(i)(5)), and (b) decreased by any amounts described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) with respect to such Partner. The foregoing definition of “Adjusted Capital Account” is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and 1.704-2 and shall be interpreted consistently therewith.
2 “Allocation Period” means the period (a) commencing on the date hereof or, for any Allocation Period other than such first Allocation Period, the day following the end of a prior Allocation Period and (b) ending (A) on the last day of each Fiscal Year, (B) on the day preceding any day in which an adjustment to the Book Value of the C.V.’s properties pursuant to clause (b)(i), (ii), (iii) or (v) of the definition of Book Value occurs, (C) immediately after any day in which an adjustment to the Book Value of the C.V.’s properties pursuant to clause (b)(iv) of the definition of Book Value occurs, or (D) on any other date determined by the Managing Partner.
3 “Book Value” means, with respect to any property or Obligation of the C.V., such property’s adjusted basis or such Obligation’s adjusted issue price for U.S. federal income tax purposes, except as follows:
(a) The initial Book Value of any property contributed by a Partner to the C.V. shall be the fair market value of such property as determined by the Managing Partner as of the date of such contribution.
(b) The initial Book Value of any Obligation assumed, or taken subject to, by the C.V. from a Partner in connection with a contribution to the C.V. subject to Code Section 721 shall be the Gross Liability Value of such Obligation as determined by the Managing Partner as of the date of such assumption or taking subject to.
(c) The Book Values of all properties shall be adjusted to equal their respective fair market values as determined by the Managing Partner in connection with (i) the acquisition of an interest (or additional interest) in the C.V. by any new or existing Partner in exchange for more than a de minimis Capital Contribution to the C.V. or in exchange for the performance of more than a de minimis amount of services to or for the benefit of the C.V., (ii) the distribution by the C.V. to a Partner of more than a de minimis amount of property as consideration for an interest in the C.V., (iii) the liquidation of the C.V., including within the meaning of Treasury Regulation Section 1.704-1(b)(2)(ii)(g)(1) (other than pursuant to Code Section 708(b)(1)(B)), or (iv) any other event to the extent determined by the Managing Partner to be permitted and necessary to properly reflect Book Values in accordance with the standards set forth in Treasury Regulation Section 1.704-1(b)(2)(iv)(q); provided that adjustments pursuant to
5
clauses (i), (ii) and (iv) above shall be made only if the Managing Partner reasonably determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Partners in the C.V.
(d) The Book Value of property distributed to a Partner shall be adjusted immediately prior to the distribution to equal the fair market value of such property as determined by the Managing Partner as of the date of such distribution and the Book Value of any Obligation of the C.V. that is assumed, or taken subject to, by a Partner in connection with a distribution of property to the Partner in a transaction subject to Code Section 731 shall be adjusted immediately prior thereto to equal the Gross Liability Value of such Obligation as of the date it is assumed or taken subject to by such Partner.
(e) The Book Value of all property shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such property pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining capital accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m) and clause (f) of the definition of Profits or Losses or Section A-4(h); provided, however, that the Book Value of property shall not be adjusted pursuant to this clause (e) to the extent that the Managing Partner reasonably determines an adjustment pursuant to clause (c) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (e).
(f) The Book Value of each Obligation of the C.V. shall be adjusted to equal the obligation’s Gross Liability Value as determined by the Managing Partner at such times as an adjustment to the Book Value of property of the C.V. is made pursuant to clause (c) hereof..
(g) If the Book Value of property has been determined or adjusted pursuant to clauses (a), (c) or (e) hereof, such Book Value shall thereafter be adjusted by the Depreciation taken into account with respect to such property for purposes of computing Profits and Losses and other items allocated pursuant hereto.
(h) If the Book Value of an Obligation of the C.V. has been determined or adjusted pursuant to clauses (b) or (f) hereof, such Book Value shall thereafter be adjusted based on the method adopted under subparagraph (g) of the definition of “Profits” and “Losses” to determine the extent to which the Book Value of such Obligation is treated as satisfied or otherwise taken into account.
4 “Capital Contribution” means, with respect to any Partner, the amount of money, and the initial Book Value of any property contributed to the C.V. by such Partner, in accordance with Article IV; provided that any deemed contribution pursuant to Article 4.4(b)(i) shall not be treated as a Capital Contribution for purposes of determining the Partners’ capital accounts and instead the revaluation of the property and Obligations of the C.V. pursuant to the definition of “Book Value” and the resulting adjustment of the Partners’ capital accounts hereunder shall be made in a manner consistent with the provisions of Article 4.4(b)(i). Any reference to the Capital Contributions of a Partner will include the Capital Contributions made by a predecessor holder of such Partner’s interest in the C.V. to the extent the Capital Contribution was made in respect of interest in the C.V. Transferred to such Partner.
5 “Code” means the Internal Revenue Code of 1986, as amended from time to time (or any corresponding provisions of succeeding law.)
6 “Depreciation” means, for each Allocation Period an amount equal to the depreciation, amortization or other cost recovery deduction allowable for U.S. federal income tax purposes with respect to property for such Allocation Period, except that (a) with respect to any such property the Book Value of which differs from its adjusted tax basis for U.S. federal income tax purposes and which difference is being eliminated by use of the “traditional method with curative allocations” pursuant to Treasury Regulation Section 1.704-3(d), Depreciation for such Allocation Period shall be the amount of book
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basis recovered for such Allocation Period under the rules prescribed by Treasury Regulation Section 1.704-3(c), and (b) with respect to any other such property the Book Value of which differs from its adjusted tax basis at the beginning of such Allocation Period, Depreciation shall be an amount which bears the same ratio to such beginning Book Value as the U.S. federal income tax depreciation, amortization, or other cost recovery deduction for such Allocation Period bears to such beginning adjusted tax basis; provided that if the adjusted tax basis of any property at the beginning of such Allocation Period is zero dollars ($0.00), Depreciation with respect to such property shall be determined with reference to such beginning value using any reasonable method selected by the Managing Partner.
7 “Economic Risk of Loss” has the meaning set forth in Treasury Regulation Section 1.752-2(a).
8 “Fiscal Year” means the fiscal year of the C.V. which shall end on December 31 of each calendar year unless, for U.S. federal income tax purposes, another fiscal year is required. The C.V. shall have the same fiscal year for U.S. federal income tax purposes and for accounting purposes.
9 "Gross Liability Value" means, with respect to any Obligation of the C.V., the amount of cash that a willing assignor would pay to a willing assignee to assume such Obligation in an arm's-length transaction.
10 “Minimum Gain” has the meaning assigned to that term in Treasury Regulation Section 1.704-2(d).
11 “Nonrecourse Deduction” has the meaning assigned to that term in Treasury Regulation Section 1.704-2(b).
12 “Obligation” has the meaning assigned to that term in Treasury Regulation Section 1.752-1(a)(4)(ii).
13 “Partner Nonrecourse Debt” has the meaning assigned to the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).
14 “Partner Nonrecourse Debt Minimum Gain” has the meaning assigned to the term “partner nonrecourse debt minimum gain” in Treasury Regulation Section 1.704-2(i)(2).
15 “Partner Nonrecourse Deduction” has the meaning assigned to the term “partner nonrecourse deduction” in Treasury Regulation Section 1.704-2(i)(1).
16 “Profits” or “Losses” means, for each Allocation Period, an amount equal to the C.V.’s taxable income or loss for such period as computed for U.S. federal income tax purposes, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments (without duplication):
(a) Any income of the C.V. that is exempt from U.S. federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition of “Profits” and “Losses” shall be added to such taxable income or loss;
(b) Any expenditures of the C.V. described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits or Losses pursuant to this definition of “Profits” and “Losses,” shall be subtracted from such taxable income or loss;
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(c) In the event the Book Value of any asset is adjusted pursuant to clause (c) or clause (d) of the definition of Book Value, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the Book Value of the asset) or an item of loss (if the adjustment decreases the Book Value of the asset) from the disposition of such asset and shall, except to the extent allocated pursuant to Section A-4, be taken into account for purposes of computing Profits or Losses;
(d) In the event the Book Value of any Obligation is adjusted pursuant to clause (d) or clause (f) of the definition of Book Value, the amount of such adjustment shall be treated for purposes hereof as an item of loss (if the adjustment increases the Book Value of such Obligation) or an item of gain (if the adjustment decreases the Book Value of such Obligation);
(e) Gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for U.S. federal income tax purposes shall be computed by reference to the Book Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Book Value;
(f) 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 Depreciation;
(g) In determining Profits and Losses, income, gain, deduction or loss resulting from the satisfaction of, or accrual for federal income tax purposes of items with respect to, an Obligation of the C.V. with a Book Value that differs from its adjusted issue price (if any) shall be computed by reference to the Book Value of such Obligation, with the extent to which the Book Value of such Obligation is treated as satisfied or otherwise taken into account being determined under any reasonable method adopted by the Managing Partner;
(h) To the extent an adjustment to the adjusted tax basis of any asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulation 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 C.V., the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or an item of loss (if the adjustment decreases such basis) from the disposition of such asset and shall be taken into account for purposes of computing Profits or Losses; and
(i) Any items that are allocated pursuant to Section A-4 shall not be taken into account in computing Profits and Losses, but such items available to be specially allocated pursuant to Section A-4 will be determined by applying rules analogous to those set forth in subparagraphs (a) through (g) above.
17 “Treasury Regulations” means the income tax regulations promulgated under the Code, as they may be amended from time to time.
A-2. Capital Accounts. A capital account shall be established and maintained for each Partner in accordance with the requirements of Treasury Regulation Section 1.704-1(b)(2)(iv). Each Partner’s capital account (a) shall be increased by (i) the amount of money contributed by such Partner to the C.V., (ii) the Book Value of property contributed by such Partner to the C.V. (net of the Gross Liability Value of any Obligations secured by the contributed property that the C.V. is considered to assume or take subject to under Code Section 752 or would be considered to have assumed or taken subject to for purposes of Code Section 752 if such Obligation were a liability for purposes of Code Section 752), (iii) allocations to such Partner of Profits and any other items of income or gain allocated to such Partner, and (iv) the Gross Liability Value of any Obligation assumed (or deemed assumed) by the Partner that would not otherwise be taken into account under subparagraph (b)(iii) of this Section A-2 and (b) shall be decreased by (i) the amount of money distributed to such Partner by the C.V., (ii) the Gross Liability Value of any Obligation assumed (or deemed assumed) by the C.V. that would not otherwise be taken
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into account under subparagraph (a)(ii) of this Section A-2, (iii) the Book Value of property distributed to such Partner by the C.V. (net of the Gross Liability Value of any Obligations secured by the distributed property that such Partner is considered to assume or take subject to under Code Section 752 or would be considered to have assumed or taken subject to for purposes of Code Section 752 if such Obligation were a liability for purposes of Code Section 752), and (iv) allocations to such Partner of Losses and any other items of loss or deduction allocated to such Partner. The Partners agree that the initial capital account balances of each Partner shall be in the amount as set forth in Exhibit B. On the transfer of all or part of a Partner’s interest in the C.V., the capital account of the transferor that is attributable to the transferred interest in the C.V. shall carry over to the transferee Partner in accordance with the provisions of Treasury Regulation Section 1.704-1(b)(2)(iv)(l). For purposes of this Section A-2, in connection with the contribution or distribution of an interest in an entity that is disregarded for U.S. federal income tax purposes, liabilities of such entity shall be treated as secured by the property of that entity. For purposes of determining each partner’s capital account in connection with an offering of stock by FINV, the principles set forth in Section 4.4(b) of the Agreement shall apply. As set forth in Article 4.5(b) of the Agreement, in connection with the issuance of stock in FINV to an employee or other service provider for services rendered to or for the benefit of FICV, that section shall apply for the purposes of maintaining capital accounts.
A-3. Allocations of Profits and Losses. After giving effect to the allocations under Section A-4.1, Profits and Losses (and to the extent determined by the Managing Partner to be necessary and appropriate to achieve the resulting capital account balances described below, any allocable items of gross income, gain, loss and expense includable in the computation of Profits and Losses) for each Allocation Period shall be allocated among the Partners during such Allocation Period, in such a manner as shall cause the capital accounts of the Partners (as adjusted to reflect all allocations under Section A-4 and all distributions through the end of such Allocation Period) to equal, as nearly as possible, (a) the amount such Partners would receive if all assets of the C.V. on hand at the end of such Allocation Period were sold for cash equal to their Book Values, all Obligations of the C.V. were satisfied in cash for an amount equal to their Book Values (limited in the case of non-recourse debt to the Book Value of the property securing such debt), and all remaining or resulting cash were distributed to the Partners in accordance with their Percentage Interests minus (b) such Partner’s share of Minimum Gain and Partner Nonrecourse Debt Minimum Gain, computed immediately prior to the hypothetical sale of assets, and the amount any such Partner is treated as obligated to contribute to the C.V., computed immediately after the hypothetical sale of assets.
A-4. Special Allocations. The following allocations shall be made in the following order:
(a) Nonrecourse Deductions. Nonrecourse Deductions shall be allocated to the Partners as determined by the Managing Partner, to the extent permitted by the Treasury Regulations.
(b) Partner Nonrecourse Deductions Attributable to Partner Nonrecourse Debt. Partner Nonrecourse Deductions attributable to Partner Nonrecourse Debt shall be allocated to the Partners bearing the Economic Risk of Loss for such Partner Nonrecourse Debt as determined under Treasury Regulation Section 1.704-2(b)(4). If more than one Partner bears the Economic Risk of Loss for such Partner Nonrecourse Debt, the Partner Nonrecourse Deductions attributable to such Partner Nonrecourse Debt shall be allocated among the Partners according to the ratio in which they bear the Economic Risk of Loss. This Section A-4(b) is intended to comply with the provisions of Treasury Regulation Section 1.704-2(i) and shall be interpreted consistently therewith.
(c) Partner Minimum Gain Chargeback. Notwithstanding any other provision hereof to the contrary, if there is a net decrease in Minimum Gain for an Allocation Period (or if there was a net decrease in Minimum Gain for a prior Allocation Period and the C.V. did not have sufficient amounts of income and gain during prior periods to allocate among the Partners under this Section A-4(c)), items of income and gain shall be allocated to each Partner in an amount equal to such Partner’s share of the
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net decrease in such Minimum Gain (as determined pursuant to Treasury Regulation Section 1.704-2(g)(2)). This Section A-4(c) is intended to constitute a minimum gain chargeback under Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.
(d) Partner Nonrecourse Debt Minimum Gain Chargeback. Notwithstanding any provision hereof to the contrary except Section A-4(c) (dealing with Minimum Gain), if there is a net decrease in Partner Nonrecourse Debt Minimum Gain for an Allocation Period (or if there was a net decrease in Partner Nonrecourse Debt Minimum Gain for a prior Allocation Period and the C.V. did not have sufficient amounts of income and gain during prior periods to allocate among the Partners under this Section A-4(d), items of income and gain shall be allocated to each Partner in an amount equal to such Partner’s share of the net decrease in Partner Nonrecourse Debt Minimum Gain (as determined pursuant to Treasury Regulation Section 1.704-2(i)(4)). This Section A-4(d) is intended to constitute a partner nonrecourse debt minimum gain chargeback under Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.
(e) Notwithstanding any provision hereof to the contrary except Section A-4(a) and Section A-4(b), no Losses or other items of loss or expense shall be allocated to any Partner to the extent that such allocation would cause such Partner to have a deficit balance in its Adjusted Capital Account (or increase any existing deficit balance in its Adjusted Capital Account) at the end of such Allocation Period. All Losses and other items of loss and expense in excess of the limitation set forth in this Section A-4(e) shall be allocated to the Partners who do not have a deficit balance in their Adjusted Capital Accounts in proportion to their relative positive Adjusted Capital Accounts but only to the extent that such Losses and other items of loss and expense do not cause any such Partner to have a deficit in its Adjusted Capital Account.
(f) Qualified Income Offset. Notwithstanding any provision hereof to the contrary except Section A-4(c) and Section A-4(d), a Partner who unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6) 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 the Allocation Period) in an amount and manner sufficient to eliminate any deficit balance in such Partner’s Adjusted Capital Account as quickly as possible; provided that an allocation pursuant to this Section A-4(f) shall be made only if and to the extent that such Partner would have deficit Adjusted Capital Account balance after all other allocations provided for in this Exhibit A have been tentatively made as if this Section A-4(f) were not in this Agreement. This Section A-4(f) is intended to constitute a qualified income offset under Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(g) Gross Income Allocation. In the event that any Partner has a deficit balance in its Adjusted Capital Account at the end of any Allocation Period, such Partner shall be allocated items of ▇.▇. ▇▇▇▇▇ income and gain in the amount of such deficit as quickly as possible; provided that an allocation pursuant to this Section A-4(g) shall be made only if and to the extent that such Partner would have a deficit balance in its capital account after all other allocations provided for in this Exhibit A have been tentatively made as if Section A-4(f) and this Section A-4(g) were not in this Exhibit A.
(h) Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any C.V. properties pursuant to Code Section 734(b) or Code Section 743(b) is required pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining capital accounts as the result of a distribution to any Partner in complete liquidation of such Partner’s interest in the C.V., the amount of such adjustment to capital accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be allocated to the Partners in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2) if such Treasury Regulation Section applies, or to the Partner to whom such distribution was made if Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies.
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A-5. Income Tax Allocations.
(a) All items of income, gain, loss and deduction for U.S. federal income tax purposes shall be allocated in the same manner as the corresponding item is allocated pursuant to Section 6.01 or Section A-4, except as otherwise provided in this Section A-4.
(b) In accordance with the principles of Code Section 704(c) and the Treasury Regulations thereunder (including the Treasury Regulations applying the principles of Code Section 704(c) to changes in Book Values), income, gain, deduction and loss with respect to any C.V. property or Obligations having a Book Value that differs from such property’s adjusted tax basis or adjusted issue price, respectively, for U.S. federal income tax purposes shall, solely for U.S. federal income tax purposes, be allocated among the Partners in order to account for any such difference using the “traditional method with curative allocations” under Treasury Regulation Section 1.704-3(c) or such other method or methods as determined by the Managing Partner to be appropriate and in accordance with the applicable Treasury Regulations.
(c) Any (i) recapture of depreciation or any other item of deduction shall be allocated, in accordance with Treasury Regulations Sections 1.1245-1(e) and 1.1254-5, to the Partners who received the benefit of such deductions (taking into account the effect of allocations under Code Section 704(c)), and (ii) recapture of grants credits shall be allocated to the Partners in accordance with applicable law.
(d) Tax credits of the C.V. shall be allocated among the Partners as provided in Treasury Regulation Sections 1.704‑1(b)(4)(ii) and 1.704‑1(b)(4)(viii).
(e) Allocations pursuant to this Section A-4 are solely for purposes of U.S. federal, state, and local taxes and, except as otherwise specifically provided, shall not affect, or in any way be taken into account in computing, any Partner’s capital account or share of Profits, Losses, other items or distributions pursuant to any provision of this Exhibit A or the Agreement.
A-6. Other Allocation Rules.
(a) All items of income, gain, loss, deduction and credit allocable to an interest in the C.V. that may have been Transferred shall be allocated between the Transferor and the Transferee based on the portion of the Fiscal Year during which each was recognized as the owner of such interest, without regard to the results of C.V. operations during any particular portion of that year and without regard to whether cash distributions were made to the Transferor or the Transferee during that year; provided, however, that this allocation must be made in accordance with a method permissible under Code Section 706 and the Treasury Regulations thereunder.
(b) The Partners’ proportionate shares of the “excess nonrecourse liabilities” of the C.V., within the meaning of Treasury Regulation Section 1.752-3(a)(3), shall be allocated to the Partners in any manner determined by the Managing Partner and permissible under the Treasury Regulations.
(c) The allocations set forth in Sections ▇-▇, ▇-▇, ▇-▇ and the preceding provisions of this Section A-6 are intended to comply with the Treasury Regulations. If the Managing Partner determines that a Partner’s capital account or the allocations to a Partner are not in compliance with the Treasury Regulations, the Managing Partner is authorized to make any appropriate adjustments.
A-7. Tax Matters Partner; Section 754 Election; Tax Classification.
(a) Tax Matters Partner. The “Tax Matters Partner” (as such term is defined in Section 6231(a)(7) of the Code) of the C.V. shall be the General Partner. The Tax Matters Partner shall use commercially reasonable efforts to comply with the responsibilities outlined in Sections 6221 through 6233 of the Code (including the Regulations promulgated thereunder) and shall have any powers
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necessary to perform fully in such capacity. In such regard, the Tax Matters Partner’s authority shall include the authority to (i) prepare and file all tax returns of the C.V., (ii) make such elections under the Code and other relevant tax laws in a manner consistent with the provisions of this Exhibit A as to the treatment of items of C.V. income, gain, loss and deduction, (iii) determine which items of cash outlay are to be capitalized or treated as current expenses, (iv) select the method of accounting and bookkeeping procedures to be used by the C.V., and (v) represent the C.V. before taxing authorities and courts in tax matters affecting the C.V. and the Partners in their capacity as such and shall keep the Partners informed of any such administrative and judicial proceedings. The Tax Matters Partner shall be entitled to be reimbursed by the C.V. for all costs and expenses incurred by it in connection with any administrative or judicial proceeding affecting tax matters of the C.V. and the Partners in their capacity as such and to be indemnified by the C.V. (solely out of C.V. assets) with respect to any action brought against it in connection with any judgment in or settlement of any such proceeding. Any Partner who enters into a settlement agreement with respect to any C.V. item shall notify the Tax Matters Partner of such settlement agreement and its terms within 30 days after the date of settlement. This Section A-7(a) shall survive any termination of this Exhibit A or the C.V.
(a) Section 754 Election. In the event of a transfer of an interest in the C.V. as permitted pursuant to this Exhibit A or a distribution of property to a Partner, the Tax Matters Partner shall cause the C.V. to make a timely election (a “Section 754 Election”) under Section 754 of the Code.
(b) Classification as a Partnership. The parties hereto intend the C.V. be classified as a Partnership for United States federal income tax purposes effective as of the date of formation. The General Partner shall not elect to have the C.V. classified as an association taxable as a corporation for United States federal income tax purposes pursuant to Regulation section 301.7701-3. The Tax Matters Partner shall, for and on behalf of the C.V., take all steps as may be required to maintain the C.V.’s classification as a Partnership for federal income tax purposes, including affirmatively electing to classify the C.V. as a Partnership by timely executing and filing Internal Revenue Service Form 8832 effective as of the date of formation of the C.V. By incorporating this Exhibit A into the Agreement, each of the parties hereto consents to the authority of the Tax Matters Partner to make any such election and shall cooperate in the making of such election (including providing consents and other authorizations that may be required). The C.V. shall not, with respect to the partnership interests in the C.V., “participate” (within the meaning of Regulation section 1.7704-1(d)(1)) in the establishment of an “established securities market” (within the meaning of Regulation section 1.7704-1(b)) or a “secondary market or the substantial equivalent thereof” (within the meaning of Regulation section 1.7704-1(c)) or, in either case, the inclusion of the partnership interests in the C.V. thereon.
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EXHIBIT B
Initial Capital Account Balances
FIM | FILP | MH | Total |
$4,543,000 | $3,372,985,000 | $1,165,472,000 | $4,543,000,000 |