Exhibit (a) under Form N-1A
Exhibit 3(i) under Item 601/Reg. S-K
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
of
Federated Core Trust II, L.P.
a Delaware Limited Partnership
January __, 2002
(iii)
TABLE OF CONTENTS
Page
ARTICLE I. Name and Definitions.......................................2
Section 1. Name.......................................................2
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Section 2. Registered Agent and Registered Office; Principal Place of
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Business...................................................2
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(a) Registered Agent and Registered Office...........................2
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(b) Principal Place of Business......................................2
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Section 3. Definitions................................................2
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(a) "1940 Act".......................................................2
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(b) "Affiliate".......................................................
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2
(c) "Assignment".....................................................2
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(d) "Board of Directors".............................................2
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(e) "By-Laws"........................................................2
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(f) "Certificate of Limited Partnership".............................2
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(g) "Code" ........................................................3
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(h) "Commission".....................................................3
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(i) "Director" or "Directors"........................................3
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(j) "DRULPA" 3
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(k) "General Liabilities"............................................3
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(l) "General Partner"................................................3
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(m) "Interested Person"..............................................3
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(o) "Investment Adviser" or "Adviser"................................3
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(p) "Investor".......................................................3
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(q) "Majority Investor Vote".........................................4
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(r) "National Financial Emergency"...................................4
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(s) "Original Agreement".............................................4
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(t) "Partnership"....................................................4
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(u) "Partnership Agreement"..........................................4
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(v) "Partnership Property"...........................................4
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(w) "Person" ........................................................4
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(x) "Principal Underwriter"..........................................4
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(y) "Series" ........................................................4
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ARTICLE II. Purpose of the Partnership................................5
ARTICLE III. Interests................................................8
Section 1. Authorization of Interests.................................8
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Section 2. Ownership of Interests....................................10
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Section 3. Investments in the Partnership............................10
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Section 4. Status of Interests and Limitation of Personal Liability..10
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Section 5. Power to Change Provisions Relating to Interests..........11
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Section 6. Establishment and Designation of Series...................11
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(a) Assets Held with Respect to a Particular Series...........12
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(b) Liabilities Held with Respect to a Particular Series......12
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(c) Distributions, Redemptions and Repurchases................13
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(d) Voting....................................................13
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(e) Equality..................................................14
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(f) Fractions.................................................14
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(g) Exchange Privilege........................................14
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(h) Combination of Series.....................................14
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(i) Termination of Series.....................................14
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Section 7. Indemnification of Investors..............................15
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ARTICLE IV. The Board of Directors...................................15
Section 1. General Partner Delegation; Powers of Board of Directors..15
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Section 2. Payment of Expenses by the Partnership....................17
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Section 3. Payment of Expenses by Investors..........................18
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Section 4. Ownership of Partnership Property.........................18
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Section 5. Service Contracts.........................................18
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Section 6. Election of Directors by Investors........................20
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Section 7. Term of Office of Directors...............................20
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Section 8. Termination of Service and Appointment of Directors.......20
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Section 9. Number of Directors.......................................21
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Section 10. Effect of Death, Resignation, Removal, etc. of a Director.21
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ARTICLE V. Investors' Voting Powers..................................21
Section 1. Voting Powers and Required Vote...........................21
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Section 2. Additional Provisions.....................................22
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ARTICLE VI. Net Asset Value, Distributions and Redemptions...........22
Section 1. Determination of Net Asset Value, Net Income and
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Dis22ibutions.
Section 2. Redemptions at the Option of an Investor..................22
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Section 3. Redemptions at the Option of the Partnership..............24
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ARTICLE VII. Compensation and Limitation of Liability of General
Partner, Directors and Officers........................24
Section 1. Compensation..............................................24
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Section 2. Indemnification and Limitation of Liability...............24
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Section 3. General Partner's, Officers' and Directors' Good Faith
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Action, Expert Advice, No Bond or Surety..................25
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Section 4. Insurance.................................................25
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ARTICLE VIII. Miscellaneous..........................................26
Section 1. Liability of Third Persons Dealing with Directors.........26
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Section 2. Establishment of Record Dates.............................26
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Section 3. Dissolution of Partnership or Series......................26
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Section 4. Merger and Consolidation; Conversion; Transfer to Another
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Jurisdiction..............................................29
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(a) Merger and Consolidation........................................29
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(b) Conversion......................................................29
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(c) Transfer to Another Jurisdiction................................30
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Section 5. Reorganization............................................31
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Section 6. General Partner and Investors.............................31
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(a) General Partner.................................................31
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(b) Additional General Partners.....................................31
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(c) Withdrawal of General Partner...................................31
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(d) No Right of Removal of General Partner..........................31
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(e) Admission of Investors..........................................32
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Section 7. Amendments................................................32
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Section 8. Determination of Book Capital Account Balances and Net Income.
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33
(a) Book Capital Accounts...........................................34
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(b) Allocation of Income or Loss to Investors.......................34
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(c) Liquidating Distributions.......................................34
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(d) Special Allocations.............................................34
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(e) Tax Accounting Instructions.....................................36
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Section 9. Filing of Copies, References, Headings....................36
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Section 10. Applicable Law............................................36
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Section 11. Provisions in Conflict with Law or Regulations............36
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Section 12. [Reserved]................................................37
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Section 13. Use of the Name "Federated."..............................37
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Section 14. Counterparts..............................................37
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AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
FEDERATED CORE TRUST II, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP made as of this ____
day of January __, 2001, by and among the General Partner, the Directors
hereunder, the initial Investor and those Persons who may hereafter be admitted
to the Partnership as Investors in accordance with the provisions hereof.
W I T N E S S E T H:
WHEREAS this Partnership was formed under the Delaware Revised Uniform
Limited Partnership Act (6 Del. C. ss.17-101, et seq.), as from time to time
amended (the "DRULPA"), pursuant to (a) the Original Agreement, and (b) the
Certificate of Limited Partnership filed in the Office of the Secretary of State
of the State of Delaware on November 13, 2000; and
WHEREAS, the parties hereto desire to amend and restate the Original
Agreement by this Amended and Restated Agreement of Limited Partnership in order
that the Partnership be governed by the provisions herein; and
WHEREAS this Partnership is authorized to issue its Interests in separate
Series, and to divide any Series into two or more classes of Investors, all in
accordance with the provisions hereinafter set forth; and
WHEREAS, the General Partner has determined to irrevocably delegate its
authority to manage the business and affairs of the Partnership to the Board of
Directors, pursuant to Section 17-403 of the DRULPA; and
WHEREAS, the parties hereto intend that the Partnership shall have the
ability to exercise all powers and privileges granted to a limited partnership
formed under the laws of the State of Delaware, and particularly, the DRULPA;
NOW, THEREFORE, in consideration of the mutual promises and agreements made
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I.
Name and Definitions
Section 1...Name. This limited partnership shall continue to be known as
"Federated Core Trust II, L.P." and the Board of Directors shall, pursuant to
delegated authority from the General Partner, conduct the business of the
Partnership under that name, or any other name as it may from time to time
determine.
Section 2...Registered Agent and Registered Office; Principal Place of
Business.
(a) Registered Agent and Registered Office. The name of the registered
agent of the Partnership and the address of the registered office of the
Partnership are as set forth on the Certificate of Limited Partnership.
(b) Principal Place of Business. The principal place of business of the
Partnership is located at the principal executive office of the Partnership set
forth in the By-Laws.
Section 3...Definitions. Whenever used herein, unless otherwise required by
the context or specifically provided:
(a) "1940 Act" shall mean the Investment Company Act of 1940 and the rules
and regulations thereunder, all as adopted or amended from time to time.
(b) "Affiliate" shall have the meaning given to "Affiliated Person" in
Section 2(a)(3) of the 1940 Act when used with reference to a specified Person.
(c) "Assignment" shall have the meaning given to it in Section 2(a)(4) of
the 1940 Act.
(d) "Board of Directors" shall mean the body of Directors, which, pursuant
to authority delegated to it by the General Partner, shall be the governing body
of the Partnership.
(e) "By-Laws" shall mean the By-Laws of the Partnership, as amended and
restated from time to time in accordance with Article X of the By-Laws, which
shall constitute a part of this Partnership Agreement.
(f) "Certificate of Limited Partnership" shall mean the certificate of
limited partnership filed with the Office of the Secretary of State of the State
of Delaware by the General Partner as required under the DRULPA to form the
Partnership.
(g) "Code" shall mean the Internal Revenue Code of 1986, and the rules and
regulations thereunder, all as adopted or amended from time to time.
(h) "Commission" shall have the meaning given to it in Section 2(a)(7) of
the 1940 Act.
(i) "Director" or "Directors" shall refer to each signatory to this
Partnership Agreement as a director, so long as such signatory continues in
office in accordance with the terms hereof, and all other Persons who may, from
time to time, be duly elected or appointed, qualified and serving on the Board
of 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.
(j) "DRULPA" shall mean the Delaware Revised Uniform Limited Partnership
Act (6 Del. C.ss.17-101 et seq.), as amended from time to time.
(k) "General Liabilities" shall have the meaning given it in Article III,
Section 6(b) of this Partnership Agreement.
(l) "General Partner" shall mean, initially, Federated Private Asset
Management, Inc., or its duly admitted successor, as general partner of the
Partnership.
(m) "Interested Person" shall have the meaning given to it in Section
2(a)(19) of the 1940 Act.
(n) "Interest" shall mean an Investor's interest, rights, powers and
authority in and with respect to the Partnership, which Interest shall be
denominated in a unit.
(o) "Investment Adviser" or "Adviser" shall mean a party furnishing
services to the Partnership pursuant to any contract described in Article IV,
Section 5(a) hereof.
(p) "Investor" shall mean a Person who is admitted to the Partnership as a
limited partner in accordance with Article VIII, Section 6(e) of this
Partnership Agreement, which Investors shall have all the rights afforded to
shareholders of an investment company under the 1940 Act.
(q) "Majority Investor Vote" shall mean the 67% or the 50% requirement
contained in the definition of "Majority Shareholder Vote," as contained in
Section 2(a)(42) of the 1940 Act, whichever may be applicable when used with
reference to a vote of Investors.
(r) "National Financial Emergency" shall mean the whole or any part of any
period set forth in Section 22(e) of the 1940 Act. The Board of Directors may,
in its discretion, declare that the suspension relating to a National Financial
Emergency shall terminate, as the case may be, on the first business day on
which the New York Stock Exchange shall have reopened or the period specified in
Section 22(e) of the 1940 Act shall have expired (as to which, in the absence of
an official ruling by the Commission, the determination of the Board of
Directors shall be conclusive).
(s) "Original Agreement" shall mean the oral agreement entered into by the
General Partner and the initial Investor as to the affairs of the Partnership
and the conduct of its business,
(t) "Partnership" shall mean the Delaware limited partnership established
by the Original Agreement, governed by this Partnership Agreement, as amended
and restated from time to time, inclusive of each and every Series established
hereunder.
(u) "Partnership Agreement" shall mean this Amended and Restated Agreement
of Limited Partnership, as amended and restated from time to time.
(v) "Partnership Property" shall mean any and all property, real or
personal, tangible or intangible, which is owned or held for the account of the
Partnership or one or more of any Series, including, without limitation, the
rights referred in Article VIII, Section 3 hereof.
(w) "Person" shall include a natural person, partnership, limited
partnership, trust, estate, association, corporation, custodian, nominee or any
other individual or entity in its own or any representative capacity.
(x) "Principal Underwriter" shall have the meaning given to it in Section
2(a)(29) of the ▇▇▇▇ ▇▇▇.
(y) "Series" shall refer to each series of Interests established and
designated under or in accordance with the provisions of Article III and shall
mean an entity such as that described in Section 18(f)(2) of the 1940 Act, and
subject to Rule 18f-2 thereunder.
ARTICLE II.
Purpose of the Partnership
The purpose of the Partnership is to conduct, operate and carry on the
business of a management investment company registered under the 1940 Act
through one or more Series investing primarily in securities and to exercise all
of the powers and privileges granted to a limited partnership formed under the
laws of the State of Delaware, now or hereafter in force, including, without
limitation, the following powers:
(a) To invest and reinvest cash, to hold cash uninvested, and to subscribe
for, invest in, reinvest in, purchase or otherwise acquire, own, hold, pledge,
sell, assign, mortgage, transfer, exchange, distribute, write options on, lend
or otherwise deal in or dispose of contracts for the future acquisition or
delivery of fixed income or other securities, and securities or property of
every nature and kind, including, without limitation, all types of bonds,
debentures, stocks, preferred stocks, negotiable or non-negotiable instruments,
obligations, evidences of indebtedness, certificates of deposit or indebtedness,
commercial paper, repurchase agreements, bankers' acceptances, and other
securities of any kind, issued, created, guaranteed, or sponsored by any and all
Persons, including, without limitation, states, territories, and possessions of
the United States and the District of Columbia and any political subdivision,
agency, or instrumentality thereof, any foreign government or any political
subdivision of the U.S. Government or any foreign government, or any
international instrumentality, or by any bank or savings institution, or by any
corporation or organization organized under the laws of the United States or of
any state, territory, or possession thereof, or by any corporation or
organization organized under any foreign law, or "when issued" contracts for any
such securities, or to change the investments of the assets of the Partnership;
(b) To exercise any and all rights, powers and privileges with reference to
or incident to ownership or interest, use and enjoyment of any of such
securities and other instruments or property of every kind and description,
including, but without limitation, the right, power and privilege to own, vote,
hold, purchase, sell, negotiate, assign, exchange, lend, transfer, mortgage,
hypothecate, lease, pledge or write options with respect to or otherwise deal
with, dispose of, use, exercise or enjoy any rights, title, interest, powers or
privileges under or with reference to any of such securities and other
instruments or property, the right to consent and otherwise act with respect
thereto, with power to designate one or more Persons, to exercise any of said
rights, powers, and privileges in respect of any of said instruments, and to do
any and all acts and things for the preservation, protection, improvement and
enhancement in value of any of such securities and other instruments or
property;
(c) To sell, exchange, lend, pledge, mortgage, hypothecate, lease or write
options with respect to or otherwise deal in any property rights relating to any
or all of the assets of the Partnership or any Series, subject to any
requirements of the 1940 Act;
(d) To vote or give assent, or exercise any rights of ownership, with
respect to stock or other securities or property; and to execute and deliver
proxies or powers of attorney to such Person or Persons as the Directors shall
deem proper, granting to such Person or Persons such power and discretion with
relation to securities or property as the Directors shall deem proper;
(e) To exercise powers and right of subscription or otherwise which in any
manner arise out of ownership of securities;
(f) To hold any security or property in a form not indicating that it is
limited partnership property, whether in bearer, unregistered or other
negotiable form, or in its own name or in the name of a custodian or
subcustodian or a nominee or nominees or otherwise or to authorize the custodian
or a subcustodian or a nominee or nominees to deposit the same in a securities
depository, subject in each case to proper safeguards according to the usual
practice of investment companies or any rules or regulations applicable thereto;
(g) To consent to, or participate in, any plan for the reorganization,
consolidation or merger of any corporation or issuer of any security which is
held in the Partnership; to consent to any contract, lease, mortgage, purchase
or sale of property by such corporation or issuer; and to pay calls or
subscriptions with respect to any security held in the Partnership;
(h) To join with other security holders in acting through a committee,
depositary, voting trustee or otherwise, and in that connection to deposit any
security with, or transfer any security to, any such committee, depositary or
trustee, and to delegate to them such power and authority with relation to any
security (whether or not so deposited or transferred) as the Directors shall
deem proper, and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Directors shall
deem proper;
(i) To compromise, arbitrate or otherwise adjust claims in favor of or
against the Partnership or any matter in controversy, including but not limited
to claims for taxes;
(j) To enter into joint ventures, general or limited partnerships and any
other combinations or associations;
(k) To endorse or guarantee the payment of any notes or other obligations
of any Person; to make contracts of guaranty or suretyship, or otherwise assume
liability for payment thereof;
(l) To purchase and pay for entirely out of Partnership Property such
insurance as the Directors may deem necessary or appropriate for the conduct of
the business, including, without limitation, insurance policies insuring the
assets of the Partnership or payment of distributions and principal on its
portfolio investments, and insurance policies insuring the Investors, the
General Partner, Directors, officers, employees, agents, Investment Advisers,
Principal Underwriters, or independent contractors of the Partnership,
individually against all claims and liabilities of every nature arising by
reason of holding Interests, holding, being or having held any such office or
position, or by reason of any action alleged to have been taken or omitted by
any such Person as General Partner, Director, officer, employee, agent,
Investment Adviser, Principal Underwriter, or independent contractor, to the
fullest extent permitted by this Partnership Agreement (including the Bylaws)
and by applicable law;
(m) To adopt, establish and carry out pension, profit-sharing, share bonus,
share purchase, savings, thrift and other retirement, incentive and benefit
plans, trusts and provisions, including the purchasing of life insurance and
annuity contracts as a means of providing such retirement and other benefits,
for any or all of the General Partner, Directors, officers, employees and agents
of the Partnership;
(n) To purchase or otherwise acquire, own, hold, sell, negotiate, exchange,
assign, transfer, mortgage, pledge or otherwise deal with, dispose of, use,
exercise or enjoy, property of all kinds;
(o) To buy, sell, mortgage, encumber, hold, own, exchange, rent or
otherwise acquire and dispose of, and to develop, improve, manage, subdivide,
and generally to deal and trade in real property, improved and unimproved, and
wheresoever situated; and to build, erect, construct, alter and maintain
buildings, structures, and other improvements on real property;
(p) To borrow or raise moneys for any of the purposes of the Partnership,
and to mortgage or pledge the whole or any part of the property and franchises
of the Partnership, real, personal, and mixed, tangible or intangible, and
wheresoever situated;
(q) To enter into, make and perform contracts and undertakings of every
kind for any lawful purpose, without limit as to amount; and
(r) To issue, purchase, sell and transfer, reacquire, hold, trade and deal
in Interests, bonds, debentures and other securities, instruments or other
property of the Partnership, from time to time, to such extent as the Board of
Directors shall, consistent with the provisions of this Partnership Agreement,
determine; and to repurchase and redeem, from time to time, its Interests or, if
any, its bonds, debentures and other securities.
The Partnership shall not be limited to investing in obligations maturing
before the possible dissolution of the Partnership or one or more of its Series.
The Directors shall not in any way be bound or limited by any present or future
law or custom in regard to investment by fiduciaries. Neither the Partnership
nor the Directors shall be required to obtain any court order to deal with any
assets of the Partnership or take any other action hereunder.
The foregoing clauses shall each be construed as purposes, objects and
powers, and it is hereby expressly provided that the foregoing enumeration of
specific purposes, objects and powers shall not be held to limit or restrict in
any manner the powers of the Partnership, and that they are in furtherance of,
and in addition to, and not in limitation of, the general powers conferred upon
the Partnership by the DRULPA and the other laws of the State of Delaware or
otherwise; nor shall the enumeration of one thing be deemed to exclude another,
although it be of like nature, not expressed.
ARTICLE III.
Interests
Section 1...Authorization of Interests. The number of Interests authorized
hereunder is unlimited and shall be without par value. The Board of Directors
may authorize the division of Interests into separate and distinct Series and
the division of any Series into separate classes of Investors associated with
such Series. The different Series and different classes of Investors associated
with a Series shall be established and designated, and the variations in the
relative rights and preferences as between the different Series and classes
shall be fixed and determined by the Board of Directors without the requirement
of Investor approval. If no separate Series or classes shall be established, the
Interests shall have the rights and preferences provided for herein and in
Article III, Section 6 hereof to the extent relevant and not otherwise provided
for herein, and all references to Series and classes shall be construed (as the
context may require) to refer to the Partnership. The fact that a Series shall
have initially been established and designated without any specific
establishment or designation of classes of Investors of such Series shall not
limit the authority of the Board of Directors to establish and designate
separate classes of Investors of said Series. The fact that a Series shall have
more than one established and designated class of Investors shall not limit the
authority of the Board of Directors to establish and designate additional
classes of Investors of said Series, or to establish and designate separate
classes of the previously established and designated classes.
The Board of Directors shall have the power to issue Interests of the
Partnership, or any Series thereof, from time to time for such consideration
(but not less than the net asset value thereof) and in such form as may be fixed
from time to time by the Board of Directors.
The Board of Directors may reissue for such consideration and on such terms
as it may determine, or cancel, at its discretion from time to time, any
Interests of any Series reacquired by the Partnership. The Board of Directors
may classify or reclassify any unissued Interests or any Interests previously
issued and reacquired of any Series into one or more Series that may be
established and designated from time to time, and may also classify or
reclassify any Series or any class of Investors associated with a Series into
one or more classes of Investors associated with such Series that may be
established and designated from time to time. Notwithstanding the foregoing, the
Partnership and any Series thereof may acquire, hold, sell and otherwise deal
in, for purposes of investment or otherwise, the Interests of any other Series
of the Partnership or Interests of the Partnership, and such Interests shall not
be deemed cancelled.
Subject to the provisions of Section 6 of this Article III, each Interest
shall have voting rights as provided in Article V hereof, and the Investors of
any Series shall be entitled to receive distributions, when, if and as declared
with respect thereto in the manner provided in Article IV, Section 1 hereof. No
Interest shall have any priority or preference over any other Interest of the
same Series with respect to distributions paid in the ordinary course of
business or distributions upon dissolution of the Partnership or of such Series
made pursuant to Article VIII, Section 3 hereof. All distributions shall be made
ratably among all Investors of a Series from the Partnership Property held with
respect to such Series according to the number of Interests of such Series held
of record by such Investors on the record date for any distribution. Investors
shall have no preemptive or other right to subscribe to new or additional
Interests or other securities issued by the Partnership or any Series. The Board
of Directors may from time to time divide or combine the Interests of any
particular Series into a greater or lesser number of Interests of that Series.
Such division or combination may not materially change the proportionate
interests of the Investors of that Series in the Partnership Property held with
respect to that Series or materially affect the rights of Investors of any other
Series.
No Director, officer, employee, or other agent of the Partnership may
acquire or own Interests of any Series.
The Board of Directors, by majority vote, is authorized to create, from
time to time, Partnership interests for acquisition by the General Partner, in
its capacity as a general partner of the Partnership, such interests to have
attributes as determined by the Board of Directors at such time.
Section 2...Ownership of Interests. The ownership of Interests shall be
recorded on the books of the Partnership kept by the Partnership or by a
transfer or similar agent for the Partnership, which books shall be maintained
separately for the Interests of each Series that has been established and
designated. No certificates certifying the ownership of Interests shall be
issued except as the Board of Directors may otherwise determine from time to
time. No Interest may be transferred, except as provided in Article VI with
regard to redemptions of Interests, or except as part of a merger or similar
plan of reorganization adopted by the Board of Directors that qualifies under
Section 368 of the Code. The Board of Directors may make such rules not
inconsistent with the provisions of the 1940 Act as it considers appropriate for
the issuance of Interests, the transfer of Interests of each Series and similar
matters. The record books of the Partnership as kept by the Partnership or any
transfer or similar agent, as the case may be, shall be conclusive as to who are
the Investors in each Series and class thereof and as to the number of Interests
of each Series held from time to time by each such Investor.
Section 3...Investments in the Partnership. Investments in the Partnership
may be accepted by the Board of Directors from such Persons, at such times and
on such terms as the Board of Directors may, from time to time, authorize. Each
investment shall be credited to the individual Investor's account in the form of
full and fractional Interests of the Partnership, in such Series and class
thereof as the purchaser may select, at the net asset value per unit of Interest
next determined for such Series after receipt of the investment; provided,
however, that the Principal Underwriter may, in its sole discretion, impose a
sales charge upon investments in the Partnership.
Section 4...Status of Interests and Limitation of Personal Liability.
Interests shall be deemed to be personal property giving to Investors only the
rights provided in this Partnership Agreement and under applicable law. An
Investor has no interest in specific Partnership Property. Every Investor by
virtue of having become an Investor shall be held to have expressly assented and
agreed to the terms hereof and to have become a party hereto. Subject to Article
VIII, Section 3 of this Partnership Agreement, the death, dissolution or
termination of an Investor during the existence of the Partnership shall not
operate to dissolve the Partnership or any Series, nor entitle the
representative of any deceased, dissolved or terminated Investor to an
accounting or to take any action in court or elsewhere against the Partnership,
the General Partner, the Directors or any Series, but shall entitle such
representative only to the rights of said deceased, dissolved or terminated
Investor under this Partnership Agreement. Neither the General Partner nor the
Directors, nor any officer, employee or agent of the Partnership shall have any
power to bind personally any Investor.
Section 5...Power to Change Provisions Relating to Interests.
Notwithstanding any other provision of this Partnership Agreement and without
limiting the power of the General Partner and the Board of Directors to amend
this Partnership Agreement and the power of the General Partner to amend the
Certificate of Limited Partnership as provided elsewhere herein, the General
Partner and the Board of Directors shall have the power to amend this
Partnership Agreement, and the General Partner shall have the power to amend the
Certificate of Limited Partnership, at any time and from time to time, in such
manner as the Board of Directors may determine in its sole discretion, without
the need for Investor action, so as to add to, delete, replace or otherwise
modify any provision relating to the Interests contained in this Partnership
Agreement; provided that before adopting any such amendment without Investor
approval, the Board of Directors shall determine that it is consistent with the
fair and equitable treatment of all Investors and that Investor approval is not
otherwise required by the 1940 Act or other applicable law; provided, however
that if Interests have been issued, Investor approval shall be required to adopt
any amendment to this Partnership Agreement that would adversely affect to a
material degree the rights and preferences of the Interests of any Series
already issued or the rights and preferences of any class of Investors
associated with any such Series.
Subject to the foregoing paragraph, the Board of Directors may amend any
provision set forth in paragraphs (a) through (i) of Section 6 of this Article
III.
Notwithstanding the foregoing paragraphs, the Board of Directors shall have
the power, in its discretion, to make such elections as to the tax status of the
Partnership or any Series thereof as may be permitted or required under the Code
as currently in effect or as amended, without the vote of any Investor.
Section 6...Establishment and Designation of Series. The establishment and
designation of any Series of Interests or class of Investors associated with any
Series shall be effective upon the adoption of a resolution by a majority of the
then Board of Directors setting forth such establishment and designation and the
relative rights and preferences of such Series or class. Each such resolution
shall constitute a part of this Partnership Agreement upon adoption.
Each Series shall be separate and distinct from any other Series, separate
and distinct records on the books of the Partnership shall be maintained for
each Series, and the assets and liabilities belonging to any such Series shall
be held and accounted for separately from the assets and liabilities of the
Partnership or any other Series.
Interests of each Series established pursuant to this Section 6, unless
otherwise provided in the resolution establishing such Series, shall have the
following relative rights and preferences:
(a) Assets Held with Respect to a Particular Series. All consideration
received by the Partnership for the issue or sale of Interests of a particular
Series, together with all assets in which such consideration is invested or
reinvested, all income, earnings, profits, and proceeds thereof from whatever
source derived, including, without limitation, any proceeds derived from the
sale, exchange or liquidation of such assets, and any funds or payments derived
from any reinvestment of such proceeds in whatever form the same may be, shall
irrevocably be held with respect to that Series for all purposes, subject only
to the rights of creditors with respect to such Series, and shall be so recorded
upon the books of account of the Partnership. Such consideration, assets,
income, earnings, profits and proceeds thereof, from whatever source derived,
including, without limitation, any proceeds derived from the sale, exchange or
liquidation of such assets, and any funds or payments derived from any
reinvestment of such proceeds, in whatever form the same may be, are herein
referred to as "assets held with respect to" such Series. In the event that
there are any assets, income, earnings, profits and proceeds thereof, funds or
payments which are not readily identifiable as assets held with respect to any
particular Series (collectively "General Assets"), the Board of Directors shall
allocate such General Assets to, between or among any one or more of the Series
in such manner and on such basis as the Board of Directors, in its sole
discretion, deems fair and equitable, and any General Asset so allocated to a
particular Series shall be an asset held with respect to that Series. Each such
allocation by the Board of Directors shall be conclusive and binding upon the
Investors of all Series for all purposes.
(b) Liabilities Held with Respect to a Particular Series. The assets of the
Partnership held with respect to each particular Series shall be charged against
the liabilities, debts, obligations and expenses of the Partnership incurred,
contracted for or otherwise existing with respect to such Series. Such
liabilities, debts, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Series are herein referred to as
"liabilities held with respect to" that Series. Any liabilities, expenses,
costs, charges and reserves of the Partnership that are not readily identifiable
as being held with respect to any particular Series (collectively "General
Liabilities") shall be allocated and charged by the Board of Directors to and
among any one or more of the Series in such manner and on such basis as the
Board of Directors in its sole discretion deems fair and equitable. Each
allocation of liabilities, expenses, costs, charges and reserves by the Board of
Directors shall be conclusive and binding upon the Investors of all Series for
all purposes. All Persons who have extended credit that has been allocated to a
particular Series, or who have a claim or contract that has been allocated to
any particular Series, shall look, and shall be required by contract to look
exclusively, to the assets of that particular Series for payment of such credit,
claim, or contract. In the absence of an express contractual agreement so
limiting the claims of such creditors, claimants and contract providers, each
creditor, claimant and contract provider shall be deemed nevertheless to have
impliedly agreed to such limitations.
Subject to the right of the Board of Directors in its discretion to
allocate General Liabilities as provided herein, the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to a particular Series, whether such Series is now authorized and
existing pursuant to this Partnership Agreement or is hereafter authorized and
existing pursuant to this Partnership Agreement, shall be enforceable against
the assets held with respect to such particular Series only, and not against the
assets of any other Series or the General Assets of the Partnership and none of
the General Liabilities of the Partnership or the debts, liabilities,
obligations and expenses incurred, contracted for or otherwise existing with
respect to any other Series thereof shall be enforceable against the assets held
with respect to such particular Series. Notice of this limitation on liabilities
between and among Series shall be set forth in the Certificate of Limited
Partnership of the Partnership to be filed in the Office of the Secretary of
State of the State of Delaware pursuant to the DRULPA, and upon the giving of
such notice in the Certificate of Limited Partnership, the statutory provisions
of Section 17-218 of the DRULPA relating to limitations on liabilities between
and among Series (and the statutory effect under Section 17-218 of setting forth
such notice in the Certificate of Limited Partnership) shall become applicable
to the Partnership and each Series.
(c) Distributions, Redemptions and Repurchases. Notwithstanding any other
provision of this Partnership Agreement, including, without limitation, Article
VI, no distribution, including without limitation, any distribution paid upon
dissolution of the Partnership or of any Series with respect to, nor any
redemption or repurchase of, the Interests of any Series shall be effected by
the Partnership other than from the assets held with respect to such Series,
nor, except as specifically provided in Section 7 of this Article III, shall any
Investor of any particular Series otherwise have any right or claim against the
assets held with respect to any other Series or the General Assets of the
Partnership except to the extent that such Investor has such a right or claim
hereunder as an Investor of such other Series. The Board of Directors shall have
full discretion, to the extent not inconsistent with the 1940 Act, to determine
which items shall be treated as income and which items as capital, and each such
determination and allocation shall be conclusive and binding upon the Investors.
(d) Voting. All Investors of the Partnership entitled to vote on a matter
shall vote on the matter, separately by Series and, if applicable, by class;
provided that (1) where the 1940 Act requires all Investors of the Partnership
to vote in the aggregate, without differentiation between the separate Series or
classes, on any matter, then all of the Partnership's Investors shall be
entitled to vote in the aggregate on the matter; and (2) if any matter affects
only the interests of some but not all Series or classes of Investors, then only
the Investors of such affected Series or classes shall be entitled to vote on
the matter. Notwithstanding the foregoing, with respect to matters that could
otherwise be voted on by two or more Series as a single class, the Directors
may, in their sole discretion, submit such matters to the Investors of any or
all such Series, separately.
(e) Equality. Each Interest of any particular Series shall represent an
equal proportionate undivided interest in the assets held with respect to such
Series and each Interest of any particular Series shall be equal to each other
Interest of such Series (subject to the rights and preferences with respect to
separate classes of Investors of such Series).
(f) Fractions. Any fractional Interest of a Series shall carry
proportionately to the fractional amount of such Interest all the rights and
obligations of a whole Interest of such Series, including rights with respect to
voting, receipt of distributions, redemption or repurchase of Interests and
dissolution of the Partnership or such Series.
(g) Exchange Privilege. The Board of Directors shall have the authority to
provide that the holders of Interests of any Series shall have the right to
exchange said Interests for Interests of one or more other Series in accordance
with such requirements and procedures as may be established by the Board of
Directors, and in accordance with the 1940 Act and the rules and regulations
thereunder.
(h) Combination of Series. The Board of Directors shall have the authority,
without the approval of the Investors of any Series unless otherwise required by
applicable law, to combine the assets and liabilities held with respect to any
two or more Series into assets and liabilities held with respect to a single
Series; provided that upon completion of such combination of Series, the
proportionate interest of each Investor of each Series that is combined, in the
assets and liabilities held with respect to the combined Series shall equal the
proportionate interest that each such Investor held in the assets and
liabilities held with respect to the particular Series that is combined.
(i) Termination of Series. The General Partner and the Board of Directors
shall have the authority, without the approval of Investors of any Series,
unless otherwise required by applicable law, to amend this Partnership Agreement
to adopt a resolution terminating any such Series and rescinding the
establishment and designation thereof. Each such resolution shall constitute a
part of this Partnership Agreement upon adoption.
Section 7...Indemnification of Investors. If any Investor or former
Investor shall be exposed to liability by reason of a claim or demand relating
solely to his or her being or having been an Investor in the Partnership or an
Investor in a particular Series, and not because of such Person's acts or
omissions, the Investor or former Investor (or, in the case of a natural person,
his or her heirs, executors, administrators, or other legal representatives or,
in the case of a corporation or other entity, its corporate or other general
successor) shall be entitled to be held harmless from, and indemnified out of
the assets of the Partnership or out of the assets of the applicable Series, as
the case may be, against, all loss and expense arising from such claim or
demand; provided, however, that there shall be no liability or obligation of the
Partnership, or any particular Series, as the case may be, arising hereunder to
reimburse any Investor for taxes paid by reason of such Investor's ownership of
any Interests. The Partnership shall, upon request of an Investor or former
Investor, assume the defense of any action made against any Investor for any
obligation of the Partnership or any Series and satisfy any judgment thereof.
ARTICLE IV.
The Board of Directors
Section 1...General Partner Delegation; Powers of Board of Directors. The
management and control of the business and affairs of the Partnership is hereby
delegated by the General Partner to the Board of Directors pursuant to Section
17-403 of the DRULPA; provided however that the General Partner shall take such
action with respect to the Partnership as is specifically provided in this
Partnership Agreement. As a result of the delegation of the General Partner's
duties herein, the General Partner shall be responsible for performing only the
following duties with respect to the Partnership: (1) to execute and file with
the Office of the Secretary of State of the State of Delaware, the Certificate
of Limited Partnership and any amendments thereto or restatements thereof
required to be filed pursuant to the DRULPA; (2) to execute and file any other
certificates required to be filed on behalf of the Partnership with the Office
of the Secretary of State of the State of Delaware; (3) to execute any
amendments to or restatements of this Partnership Agreement in accordance with
the terms of this Partnership Agreement (including the By-Laws); and (4) to
perform any other action that the DRULPA requires be performed by a general
partner of a limited partnership (and which may not be performed by a delegatee
of a general partner).
As provided in the foregoing paragraph, subject to the other provisions of
this Partnership Agreement, the business and affairs of the Partnership shall be
managed by the Board of Directors, and such Board of Directors shall have all
powers necessary, desirable or convenient to carry out that responsibility,
including, without limitation, the power to engage in securities or other
transactions of all kinds on behalf of the Partnership. The Board of Directors
shall have full power and authority to do any and all acts and to make and
execute any and all contracts and instruments that it may consider necessary or
appropriate in connection with the administration of the Partnership. The Board
of Directors shall not be bound or limited by present or future laws or customs
with regard to investment by trustees or fiduciaries, but shall have full
authority and absolute power and control over the assets of the Partnership and
the business of the Partnership to the same extent as if the Directors were the
sole owners of the assets and business of the Partnership in their own right,
including such authority, power and control to do all acts and things as the
Board of Directors, in its sole discretion, shall deem proper to accomplish the
purposes of this Partnership. Without limiting the foregoing, the Board of
Directors may (1) adopt, amend and repeal By-Laws, not inconsistent with this
Partnership Agreement, that provide for the regulation and management of the
affairs of the Partnership (which By-Laws shall constitute a part of this
Partnership Agreement); (2) fill vacancies in or remove from its number in
accordance with this Partnership Agreement (including the By-Laws), and may
elect and remove such officers and appoint and terminate such agents as it
considers appropriate; (3) appoint from its own number and establish and
terminate one or more committees consisting of two or more Directors, including,
without limitation, an Executive Committee, that may exercise the powers and
authority of the Board of Directors to the extent that the Board of Directors
determines; (4) employ one or more custodians of the Partnership Property and
may authorize such custodians to employ subcustodians and to deposit all or any
part of such Partnership Property in a system or systems for the central
handling of securities or with a Federal Reserve Bank; (5) retain a transfer
agent, distribution disbursing agent, a shareholder servicing agent or
administrative services agent, or all of them; (6) provide for the issuance and
distribution of Interests by the Partnership directly or through one or more
Principal Underwriters or otherwise; (7) retain one or more Investment Advisers;
(8) redeem, repurchase or transfer Interests pursuant to applicable law; (9) set
record dates for the determination of Investors with respect to various matters,
in the manner provided in the By-Laws; (10) declare and pay distributions of
income and of capital gains to Investors from the Partnership Property; (11)
establish from time to time, in accordance with the provisions of Article III,
Section 6 hereof, any Series of Interests or any class of Investors associated
with a Series, each such Series to operate as a separate and distinct investment
medium and with separately defined investment objectives and policies and
distinct investment purposes; and (12) in general, delegate such authority as it
considers desirable to any officer of the Partnership, any committee of the
Board of Directors, any agent or employee of the Partnership, or any such
custodian, transfer agent, distribution disbursing agent, shareholder servicing
agent, administrative services agent, Principal Underwriter or Investment
Adviser. Any determination as to what is in the best interests of the
Partnership made by the Board of Directors in good faith shall be conclusive.
The powers delegated to the Board of Directors in this Section 1 are without
prejudice to the delegated powers of the Board of Directors set forth in the
other provisions of this Partnership Agreement (including the By-Laws).
In construing the provisions of this Partnership Agreement, the presumption
shall be in favor of a grant of power to the Board of Directors. Unless
otherwise specified herein or required by law, any action by the Board of
Directors shall be deemed effective if approved or taken by a majority of the
Directors then in office.
Any action required or permitted to be taken by the Board of Directors, or
a committee thereof, may be taken without a meeting if a majority of the members
of the Board of Directors, or committee thereof, as the case may be, shall
individually or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a majority vote at a
meeting of the Board of Directors, or committee thereof, as the case may be.
Such written consent or consents shall be filed with the minutes of the
proceedings of the Board of Directors, or committee thereof, as the case may be.
The General Partner and the Directors shall devote to the affairs of the
Partnership such time as may be necessary for the proper performance of their
respective duties hereunder, but the General Partner and the Directors are not
expected to devote their full time to the performance of such duties. The
Directors, the General Partner or any Affiliate, partner or employee thereof,
may engage in, or possess an interest in, any other business or venture of any
nature and description, independently or with or for the account of others. None
of the Partnership or any Investor shall have the right to participate or share
in such business or venture or any profit or compensation derived therefrom.
Section 2...Payment of Expenses by the Partnership. The Board of Directors
is authorized to pay or cause to be paid out of the principal or income of the
Partnership or any particular Series of Interests, or partly out of the
principal and partly out of the income of the Partnership or any particular
Series of Interests, and to charge or allocate the same to, between or among
such one or more of the Series of Interests, as the Board of Directors deems
fair and in compliance with this Partnership Agreement, including particularly
Article III, Section 6 hereof, all expenses, fees, charges, taxes and
liabilities incurred by or arising in connection with the maintenance or
operation of the Partnership or a particular Series of Interests or particular
class of Investors associated with a Series of Interests, or in connection with
the management thereof, including, but not limited to, the General Partner's and
the Directors' compensation and such expenses, fees, charges, taxes and
liabilities for the services of the Partnership's officers, employees,
Investment Adviser, Principal Underwriter, auditors, counsel, custodian,
sub-custodian (if any), transfer agent, distribution disbursing agent,
shareholder servicing agent, administrative services agent, and such other
agents or independent contractors and such other expenses, fees, charges, taxes
and liabilities as the Board of Directors may deem necessary or proper to incur.
Section 3...Payment of Expenses by Investors. The Board of Directors shall
have the power, as frequently as it may determine, to cause each Investor of the
Partnership, or each Investor of any particular Series, to pay directly, in
advance or arrears, for charges of the Partnership's custodian or transfer,
distribution disbursing, shareholder servicing, administrative services or
similar agent, an amount fixed from time to time by the Board of Directors, by
setting off such charges due from such Investor from declared but unpaid
distributions owed such Investor and/or by reducing the number of Interests in
the account of such Investor by that number of full and/or fractional Interests
that represents the outstanding amount of such charges due from such Investor.
Section 4...Ownership of Partnership Property. Legal title to all of the
Partnership Property shall at all times be considered to be vested in the
Partnership, except that the Board of Directors shall have the power to cause
legal title to any Partnership Property to be held by or in the name of any
Person as nominee, on such terms as the Board of Directors may determine, in
accordance with applicable law.
Section 5...Service Contracts.
-----------------
(a) Subject to such requirements and restrictions as may be set forth in
the By-Laws, this Partnership Agreement and/or the 1940 Act, the Board of
Directors may, at any time and from time to time, contract for exclusive or
nonexclusive advisory, management and/or administrative services for the
Partnership or for any Series with any corporation, firm, partnership,
association or other organization, including any Affiliate; and any such
contract may contain such other terms as the Board of Directors may determine,
including without limitation, authority for the Investment Adviser or
administrator to determine from time to time without prior consultation with the
Board of Directors what securities and other instruments or property shall be
purchased or otherwise acquired, owned, held, invested or reinvested in, sold,
exchanged, transferred, mortgaged, pledged, assigned, negotiated, or otherwise
dealt with or disposed of, and what portion, if any, of the Partnership Property
shall be held uninvested and to make changes in the Partnership's or a
particular Series' investments, or such other activities as may specifically be
delegated to such party.
(b) The Board of Directors may also, at any time and from time to time,
contract with any corporation, firm, partnership, trust, association or other
organization, including any Affiliate, appointing it or them as the exclusive or
nonexclusive distributor or Principal Underwriter for the Interests of the
Partnership or one or more of the Series thereof or for other securities to be
issued by the Partnership, or appointing it or them to act as the custodian,
transfer agent, distribution disbursing agent and/or shareholder servicing agent
for the Partnership or one or more of the Series thereof.
(c) The Board of Directors is further empowered, at any time and from time
to time, to contract with any Persons to provide such other services to the
Partnership or one or more of its Series, as the Board of Directors determines
to be in the best interests of the Partnership or one or more of its Series.
(d) The fact that:
(i) any of the General Partner, Investors, Directors, employees or officers
of the Partnership is a shareholder, director, officer, partner, trustee,
employee, manager, Adviser, Principal Underwriter, distributor, or Affiliate or
agent of or for any corporation, firm, partnership, trust, association, or other
organization, or for any parent or Affiliate of any organization, with which an
Adviser's, management or administration contract, or Principal Underwriter's or
distributor's contract, or custodian, transfer, distribution disbursing,
shareholder servicing or other type of service contract may have been or may
hereafter be made,
(ii) any such organization, or any parent or Affiliate thereof, is an
Investor or has an interest in the Partnership, or
(iii) any corporation, firm, partnership, trust, association or other
organization with which an Adviser's, management or administration contract or
Principal Underwriter's or distributor's contract, or custodian, transfer,
distribution disbursing, shareholder servicing or other type of service contract
may have been or may hereafter be made also has an Adviser's, management or
administration contract, or Principal Underwriter's or distributor's contract,
or custodian, transfer, distribution disbursing, shareholder servicing or other
service contract with one or more other corporations, firms, partnerships,
trusts, associations, or other organizations, or has other business or
interests,
shall not affect the validity of any such contract or disqualify the
General Partner, any Investor, Director, employee or officer of the Partnership
from voting upon or executing the same, or create any liability or
accountability to the Partnership, its General Partner or its Investors,
provided that the establishment of and performance under each such contract is
permissible under the provisions of the 1940 Act.
(e) Every contract referred to in this Section 5 shall comply with such
requirements and restrictions as may be set forth in the By-Laws or the 1940 Act
or stipulated by resolution of the Board of Directors. Any such contract may
contain such other terms as the Board of Directors may determine.
Section 6...Election of Directors by Investors. The initial Investor hereby
elects the initial Board of Directors, the election of each such Director to be
evidenced by his or her execution of this Partnership Agreement. Subject to the
preceding sentences and unless otherwise required by the 1940 Act or any court
or regulatory body of competent jurisdiction, or unless the Board of Directors
determines otherwise, a Trustee initially shall be elected by the Board of
Directors; provided, however, that Investors shall have the power to fill any
vacancies in the Board of Directors.
Section 7...Term of Office of Directors. The Directors shall hold office
during the lifetime of the Partnership and until its termination as hereinafter
provided; except (a) that any Director may resign his office at any time by
written instrument signed by him and delivered to the other Directors, which
shall take effect upon such delivery or upon such later date as is specified
therein; (b) that any Director may be removed at any time by written instrument
signed by at least two-thirds of the number of Directors prior to such removal,
specifying the date when such removal shall become effective; (c) that any
Director who requests in writing to be retired or who has become mentally or
physically incapacitated may be retired by written instrument signed by a
majority of the other Directors, specifying the date of his retirement; and (d)
a Director may be removed at any special meeting of Investors of the Partnership
by a vote of two-thirds of the outstanding Interests. Any removals shall be
effective as to the Partnership and each Series hereunder.
Section 8...Termination of Service and Appointment of Directors. In case of
the death, resignation, retirement, removal or mental or physical incapacity of
any of the Directors, or in case a vacancy shall, by reason of an increase in
number, or for any other reason, exist, the remaining Directors shall fill such
vacancy by appointing such other person as they in their discretion shall see
fit. An appointment of a Director may be made by the Directors then in office in
anticipation of a vacancy to occur by reason of retirement, resignation or
increase in number of Directors effective at a later date, provided that said
appointment shall become effective only at or after the effective date of said
retirement, resignation or increase in number of Directors. As soon as any
Director so appointed shall have accepted this Partnership, the trust estate
shall vest in the new Director or Directors, together with the continuing
Directors, without any further act or conveyance, and he shall be deemed a
Director hereunder. Any appointment authorized by this Section 8 is subject to
the provisions of Section 16(a) of the 1940 Act.
Section 9...Number of Directors. The number of Directors, not less than
three (3) nor more than twenty (20) serving hereunder at any time, shall be
determined by the Board of Directors.
Section 10..Effect of Death, Resignation, Removal, etc. of a Director. The
death, resignation, removal, declaration as bankrupt or incapacity of one or
more Directors, or of all of them, shall not operate to dissolve the Partnership
or any Series or to revoke any existing agency created pursuant to the terms of
this Partnership Agreement. Whenever a vacancy in the Board of Directors shall
occur, until such vacancy is filled as provided in the By-Laws, or while any
Director is physically or mentally incapacitated, the Director(s) in office,
regardless of the number, shall have all the powers granted to the Board of
Directors and shall discharge all the duties imposed upon the Board of Directors
by this Partnership Agreement, and the certificate signed by a majority of the
other Director(s) of such vacancy, absence or incapacity, shall be conclusive,
provided, however, that no vacancy that reduces the number of Directors below
three (3) shall remain unfilled for a period longer than six (6) calendar
months.
ARTICLE V.
Investors' Voting Powers
Section 1...Voting Powers and Required Vote. Subject to the provisions of
Article III, Section 6(d), the Investors shall have power to vote only (i) for
the election of Directors, including the filling of any vacancies in the Board
of Directors, as provided in Article IV, Section 6; (ii) for the removal of
Directors, as provided in Article IV, Section 7; (iii) with respect to any
Investment Adviser (including any sub-investment adviser); (iv) with respect to
the amendment of this Partnership Agreement, as provided in Article VIII,
Section 7; (v) with respect to such additional matters relating to the
Partnership as may be required by this Partnership Agreement (including the
By-Laws), the 1940 Act or any registration statement of the Partnership filed
with the Commission; and on such other matters as the Board of Directors may
consider necessary or desirable.
The Investor of record (as of the record date established pursuant to
Article II, Section 11 of the By-Laws) of each Interest shall be entitled to one
vote for each full Interest, and a fractional vote for each fractional Interest.
Investors shall not be entitled to cumulative voting in the election of
Directors or on any other matter. Interests may be voted in person or by proxy.
Subject to any applicable requirement of law or any other provision of this
Partnership Agreement (including the By-laws), a plurality of the votes cast
shall elect a Director, and all other matters shall be decided by a majority of
the votes cast and entitled to vote thereon.
Until Interests of a Series are issued, the Board of Directors may exercise
all of the rights of the Investors of such Series with respect to the
Partnership or such particular Series required or permitted by law or this
Partnership Agreement (including the By-Laws) to be taken by Investors.
Section 2...Additional Provisions. The By-Laws may include further
provisions for Investors' votes, meetings and related matters.
ARTICLE VI.
Net Asset Value, Distributions and Redemptions
Section 1...Determination of Net Asset Value, Net Income and Distributions.
Subject to Article III, Section 6 hereof, the Board of Directors shall have the
power to fix an initial offering price for the Interests of the Partnership or
any Series thereof which shall yield to the Partnership or such Series not less
than the net asset value thereof, at which price the Interests of the
Partnership or such Series shall be offered initially for sale, and to determine
from time to time thereafter the offering price which shall yield to the
Partnership or such Series not less than the net asset value thereof from sales
of the Interests of the Partnership or such Series; provided, however, that no
Interests of the Partnership or Series thereof shall be issued or sold for
consideration which shall yield to the Partnership or such Series less than the
net asset value of the Interests of the Partnership or such Series next
determined after the receipt of the order (or at such other times set by the
Board of Directors), except in the case of Interests of the Partnership or such
Series issued in payment of a distribution properly declared and payable.
Subject to Article III, Section 6 hereof, the Board of Directors, in its
absolute discretion, may prescribe and shall set forth in the By-laws or in a
duly adopted vote of the Board of Directors such bases and time for determining
the per unit or net asset value of the Interests of the Partnership or any
Series or net income attributable to the Interests of the Partnership or any
Series, or the declaration and payment of distributions on the Interests of the
Partnership or any Series, as it may deem necessary or desirable.
Section 2...Redemptions at the Option of an Investor. Unless otherwise
provided in the prospectus of the Partnership relating to the Interests of the
Partnership or Series thereof, as such prospectus may be amended from time to
time ("Prospectus"):
(a) The Partnership shall purchase such Interests as are offered by any
Investor for redemption, upon the presentation of a proper instrument of
transfer together with a request directed to the Partnership or a Person
designated by the Partnership that the Partnership purchase such Interests or in
accordance with such other procedures for redemption as the Board of Directors
may from time to time authorize; and the Partnership will pay therefor the net
asset value thereof, in accordance with the By-Laws and applicable law. Payment
for said Interest shall be made by the Partnership to the Investor within seven
days after the date on which the request is received in proper form. The
obligation set forth in this Section 2 is subject to the provision that (i) in
the event that the New York Stock Exchange (the "Exchange") is closed for other
than weekends or holidays, (ii) if permitted by the Rules of the Commission
during periods when trading on the Exchange is restricted or during any National
Financial Emergency which makes it impracticable for the Partnership to dispose
of the investments of the Partnership or applicable Series or to determine
fairly the value of the net assets of the Partnership or held with respect to
such Series, or (iii) during any other period permitted by order of the
Commission for the protection of investors, such obligations may be suspended or
postponed by the Board of Directors. If certificates have been issued to an
Investor, any such request by such Investor must be accompanied by surrender of
any outstanding certificate or certificates for such Interest in form for
transfer, together with such proof of the authenticity of signatures as may
reasonably be required on such Interests and accompanied by proper stock
transfer stamps, if applicable.
(b) Payments for Interests so redeemed by the Partnership shall be made in
cash, except payment for such Interests may, at the option of the Board of
Directors, or such officer or officers as the Board of Directors may duly
authorize in its complete discretion, be made in kind, or partially in cash and
partially in kind. In case of any payment in kind, the Board of Directors, or
its delegate, shall have absolute discretion as to what security or securities
of the Partnership shall be distributed in kind and the amount of the same; and
the securities distributed shall be valued for purposes of distribution at the
value at which they were appraised in computing the then current net asset value
of the Interests, provided that any Investor who cannot legally acquire
securities so distributed in kind by reason of the prohibitions of the 1940 Act
or the provisions of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), shall receive cash. Investors shall bear the expenses of
in-kind transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
(c) Payment for Interests so redeemed by the Partnership shall be made by
the Partnership as provided above within seven days after the date on which the
redemption request is received in good order; provided, however, that if payment
shall be made other than exclusively in cash, any securities to be delivered as
part of such payment shall be delivered as promptly as any necessary transfers
of such securities on the books of the several corporations whose securities are
to be delivered practicably can be made, which may not necessarily occur within
such seven-day period. Moreover, redemptions may be suspended in the event of a
National Financial Emergency. In no case shall the Partnership be liable for any
delay of any corporation or other Person in transferring securities selected for
delivery as all or part of any payment in kind.
(d) The right of Investors to receive distributions on Interests may be set
forth in a plan adopted by the Board of Directors and amended from time to time
pursuant to Rule 18f-3 under the 1940 Act. The right of any Investor of the
Partnership to receive distributions on Interests redeemed and all other rights
of such Investor with respect to the Interests so redeemed by the Partnership,
except the right of such Investor to receive payment for such Interests, shall
cease at the time as of which the purchase price of such Interests shall have
been fixed, as provided above.
Section 3...Redemptions at the Option of the Partnership. The Board of
Directors may, from time to time, without the vote of the Investors, and subject
to the 1940 Act, redeem Interests or authorize the closing of any Investor
account, subject to such conditions as may be established by the Board of
Directors.
ARTICLE VII.
Compensation and Limitation of Liability of
General Partner, Directors and Officers
Section 1...Compensation. Except as set forth in the last sentence of this
Section 1 and as provided in the By-Laws, the Board of Directors may, from time
to time, fix a reasonable amount of compensation to be paid by the Partnership
to the General Partner, the Directors and officers of the Partnership. The Board
of Directors shall also determine, from time to time, the compensation of all
employees, consultants and agents whom it may elect or appoint. Nothing herein
shall in any way prevent the employment of any Director for advisory,
management, legal, accounting, investment banking or other services and payment
for the same by the Partnership.
Section 2...Indemnification and Limitation of Liability.
(a) To the fullest extent that limitations on the liability of the General
Partner, the Directors and officers are permitted by the DRULPA, the General
Partner, officers and Directors shall not be responsible or liable in any event
for any act or omission of any agent, employee, Investment Adviser or Principal
Underwriter of the Partnership; with respect to the General Partner, the act or
omission of any Director or officer; or with respect to each Director and
officer, the act or omission of any other Director or officer, respectively. The
Partnership, out of the Partnership Property, shall indemnify and hold harmless
the General Partner and each and every officer and Director from and against any
and all claims and demands whatsoever arising out of or related to such General
Partner's, officer's or Director's performance of its duties as a General
Partner, officer or Director of the Partnership. This limitation on liability
applies to events occurring at the time a Person serves as a General Partner,
Director or officer of the Partnership, whether or not such Person is a General
Partner, Director or officer at the time of any proceeding in which liability is
asserted. Nothing herein contained shall indemnify, hold harmless or protect the
General Partner, any officer or Director from or against any liability to the
Partnership or any Investor to which such Person would otherwise be subject by
reason of willful misfeasance, bad faith, gross negligence or reckless disregard
of the duties involved in the conduct of such Person's office.
(b) Every note, bond, contract, instrument, certificate or undertaking and
every other act or document whatsoever issued, executed or done by or on behalf
of the Partnership, the General Partner, the officers or the Directors or any of
them in connection with the Partnership shall be conclusively deemed to have
been issued, executed or done only in such Person's capacity as General Partner,
Director and/or as officer, and such General Partner, Director or officer, as
applicable, shall not be personally liable therefore.
Section 3...General Partner's, Officers' and Directors' Good Faith Action,
Expert Advice, No Bond or Surety. The exercise by the General Partner, the
officers and Directors of their powers and discretions hereunder shall be
binding upon everyone interested. The General Partner, an officer or Director
shall be liable to the Partnership and to any Investor solely for such General
Partner's, officer's or Director's own willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the conduct of the
office of such General Partner, officer or Director, and for nothing else, and
shall not be liable for errors of judgment or mistakes of fact or law. The
General Partner, officers and Directors may obtain the advice of counsel or
other experts with respect to the meaning and operation of this Partnership
Agreement and their duties as General Partner, officers or Directors. No such
General Partner, officer or Director shall be liable for any act or omission in
accordance with such advice and no inference concerning liability shall arise
from a failure to follow such advice. The General Partner, officers and
Directors shall not be required to give any bond as such, nor any surety if a
bond is required.
Section 4...Insurance. To the fullest extent permitted by applicable law,
the Board of Directors and the officers shall be entitled and have the authority
to purchase with Partnership Property, insurance for liability and for all
expenses reasonably incurred, paid or expected to be paid by the General
Partner, a Director or officer in connection with any claim, action, suit or
proceeding in which such Person becomes involved by virtue of such Person's
capacity or former capacity with the Partnership, whether or not the Partnership
would have the power to indemnify such Person against such liability under the
provisions of this Article.
ARTICLE VIII.
Miscellaneous
Section 1...Liability of Third Persons Dealing with Directors. No Person
dealing with the Directors shall be bound to make any inquiry concerning the
validity of any actions made or to be made by the Directors.
Section 2...Establishment of Record Dates. The Board of Directors may close
the Interest transfer books of the Partnership maintained with respect to any
Series for a period not exceeding ninety (90) days preceding the date of any
meeting of Investors of the Partnership or any Series, or the date for the
payment of any allocation or the making of any distribution to Investors, or the
date for the allotment of rights, or the date when any change or conversion or
exchange of Interests of any Series shall go into effect or the last day on
which the consent or dissent of Investors of any Series may be effectively
expressed for any purpose; or in lieu of closing the Interest transfer books as
aforesaid, the Board of Directors may fix in advance a date, not exceeding
ninety (90) days preceding the date of any meeting of Investors of the
Partnership or any Series, or the date for the payment of any allocation or the
making of any distribution to Investors of any Series, or the date for the
allotment of rights, or the date when any change or conversion or exchange of
Interests of any Series shall go into effect, or the last day on which the
consent or dissent of Investors of any Series may be effectively expressed for
any purpose, as a record date for the determination of Investors entitled to
notice of, and, to vote at, any such meeting and any adjournment thereof, or
entitled to receive payment of any such allocation or distribution, or to any
such allotment of rights, or to exercise the rights in respect of any such
change, conversion or exchange of Interests, or to exercise the right to give
such consent or dissent, and in such case such Investors and only such Investors
as shall be Investors of record on the date so fixed shall be entitled to such
notice of, and to vote at, such meeting, or to receive payment of such
allocation or distribution, or to receive such allotment or rights, or to
change, convert or exchange Interests of any Series, or to exercise such rights,
as the case may be, notwithstanding, after such date fixed aforesaid, any
transfer of any Interests on the books of the Partnership maintained with
respect to any Series. Nothing in the foregoing sentence shall be construed as
precluding the Board of Directors from setting different record dates for
different Series.
Section 3...Dissolution of Partnership or Series.
(a) The Partnership and each Series shall continue for a period of fifty
(50) years from the date of the Original Agreement, except that the Partnership
(or a particular Series) shall be dissolved:
(i) With respect to the Partnership, upon the vote of a majority of the
Interests in the Partnership entitled to vote or by the Board of Directors by
written notice to the Investors of the Partnership. With respect to a particular
Series, upon the vote of a majority of the Interests in that Series or by the
Board of Directors by written notice to the Investors in that Series.
(ii) With respect to the Partnership, upon the withdrawal of the General
Partner, unless (a) at such time there remains at least one (1) general partner
who elects to continue the business of the Partnership; (b) the Board of
Directors, by majority vote, elects to continue the business of the Partnership
and appoint, effective as of the date of the General Partner's withdrawal, one
or more additional general partners; or (c) within 90 days after the withdrawal,
a majority of the Interests in the Partnership entitled to vote, elect to
continue the business of the Partnership and appoint, effective as of the date
of the General Partner's withdrawal, one or more additional general partners;
(iii) With respect to the Partnership (or a particular Series), at the time
there are no Investors of the Partnership (or the particular Series); provided
further that the personal representative of the last remaining Investor of the
Partnership (or the particular Series) or its designee or nominee shall not
become an Investor of the Partnership (or such particular Series);
(iv) With respect to the Partnership (or a particular Series), upon the
occurrence of a dissolution event pursuant to any other provision of this
Partnership Agreement;
(v) With respect to any Series, upon an event that causes the dissolution
of the Partnership; or
(vi) With respect to the Partnership, upon the entry of a decree of
judicial dissolution under Section 17-802 of the DRULPA. With respect to a
particular Series, upon the entry of a decree of judicial dissolution under
Section 17-218(l) of the DRULPA.
(b) Upon the dissolution of the Partnership, the Directors, as liquidating
trustees of the Partnership, shall (subject to Sections 17-803 and 17-804 of the
DRULPA): (i) pay or make reasonable provision to pay all claims and obligations
of the Partnership and/or each Series, including all contingent, conditional or
unmatured contractual claims known to the Partnership; (ii) make such provision
as will be reasonably likely to be sufficient to provide compensation for any
claim against the Partnership and/or any Series which is the subject of a
pending action, suit or proceeding to which the Partnership is a party; and
(iii) make such provision as will be reasonably likely to be sufficient to
provide compensation for claims that have not been made known to the Partnership
or that have not arisen but that, based on facts known to the Partnership, are
likely to arise or to become known to the Partnership within 10 years after the
date of dissolution. If there are sufficient assets held with respect to the
Partnership and/or each Series of the Partnership, such claims and obligations
shall be paid in full and any such provisions for payment shall be made in full.
If there are insufficient assets held with respect to the Partnership and/or
each Series of the Partnership, such claims and obligations shall be paid or
provided for, in accordance with Article III, Section 6, according to their
priority and, among claims and obligations of equal priority, ratably to the
extent of assets available therefor.
(c) In winding up the Partnership, the Partnership Property shall be
distributed in the following order of priority:
(i) To creditors, including the General Partner and Investors who are
creditors, to the extent otherwise permitted by law, in satisfaction of
liabilities of the Partnership (whether by payment or the making of reasonable
provision for payment thereof) other than liabilities for which reasonable
provision for payment has been made and liabilities for distributions to
Investors and former Investors under Sections 17-601 or 17-604 of the DRULPA;
(ii) To Investors and former Investors in satisfaction of liabilities for
distributions under Sections 17-601 and 17-604 of the DRULPA; and
(iii) Any remaining assets (including, without limitation, cash, securities
or any combination thereof) held with respect to the Partnership and/or each
Series of the Partnership shall be distributed to the Investors of the
Partnership and/or such Series in accordance with Article III, Section 6, and
ratably according to the number of Interests of the Partnership and/or such
Series held by the several Investors on the record date for such dissolution
distribution.
(d) Upon the completion of the winding up of the Partnership, the
Directors, as liquidating trustees of the Partnership, shall execute and file a
certificate of cancellation with the Office of the Secretary of State of the
State of Delaware.
(e) Upon termination of a particular Series, the Directors shall (subject
to Section 17-218 of the DRULPA): (i) pay or make reasonable provision to pay
all claims and obligations of the Series, including all contingent, conditional
or unmatured contractual claims known to the Partnership; (ii) make such
provision as will be reasonably likely to be sufficient to provide compensation
for any claim against the Series which is the subject of a pending action, suit
or proceeding to which the Partnership is a party; and (iii) make such provision
as will be reasonably likely to be sufficient to provide compensation for claims
against the Series that have not been made known to the Partnership or that have
not arisen but that, based on facts known to the Partnership, are likely to
arise or to become known to the Partnership within 10 years after the date of
the Series' termination. If there are sufficient assets held with respect to the
Series, such claims and obligations shall be paid in full and any such
provisions for payment shall be made in full. If there are insufficient assets
held with respect to the Series, such claims and obligations shall be paid or
provided for, in accordance with Article III, Section 6, according to their
priority and, among claims and obligations of equal priority, ratably to the
extent of assets available therefor. In winding up the Series, the assets of the
Series shall be distributed in the same order of priority as set forth above
with respect to distributions upon winding up the Partnership.
Section 4...Merger and Consolidation; Conversion; Transfer to Another
Jurisdiction.
(a) Merger and Consolidation. Pursuant to an agreement of merger or
consolidation, the Partnership may, by vote of a majority of the Board of
Directors, merge or consolidate with or into one or more domestic limited
partnerships or "other business entities" (as that term is defined in Section
17-211 of the DRULPA) formed or organized or existing under the laws of the
State of Delaware or any other state or the United States or any foreign country
or other foreign jurisdiction. Any such merger or consolidation shall not
require the vote of the Investors affected thereby, unless such vote is required
by the 1940 Act, or unless such merger or consolidation would result in an
amendment of this Partnership Agreement that would otherwise require the
approval of such Investors. In accordance with Section 17-211(g) of the DRULPA,
an agreement of merger or consolidation may effect any amendment to this
Partnership Agreement (including the By-Laws) or effect the adoption of a new
limited partnership agreement of the Partnership if the Partnership is the
surviving or resulting limited partnership. Upon completion of the merger or
consolidation, if the Partnership is the surviving or resulting entity, the
General Partner shall file a certificate of merger or consolidation in
accordance with Section 17-211 of the DRULPA.
(b) Conversion. The Board of Directors, by majority vote, may, without the
vote of the Investors, cause (i) the Partnership to convert to a common-law
trust, a general partnership, corporation, business trust or association, real
estate investment trust or a limited liability company organized, formed or
created under the laws of the State of Delaware, as permitted pursuant to
Section 17-219 of the DRULPA; or (ii) the Interests to be exchanged under or
pursuant to any state or federal statute to the extent permitted by law;
provided, however, that if required by the 1940 Act, no such statutory
conversion or Interest exchange shall be effective unless the terms of such
transaction shall first have been approved at a meeting called for that purpose
by a Majority Investor Vote of the Partnership or Series, as applicable;
provided, further, that in all respects not governed by statute or applicable
law, the Board of Directors shall have the power to prescribe the procedure
necessary or appropriate to accomplish a sale of assets, merger or consolidation
including the power to create one or more separate limited partnerships to which
all or any part of the assets, liabilities, profits or losses of the Partnership
may be transferred and to provide for the conversion of Interests of the
Partnership or any Series thereof into interests in such separate limited
partnership or limited partnerships (or series thereof).
(c) Transfer to Another Jurisdiction. The Board of Directors, by majority
vote, may, without the vote of the Investors, cause the Partnership to transfer
to or domesticate in any jurisdiction outside of the United States that permits
a transfer or domestication of a limited partnership and, in connection
therewith, elect to continue the Partnership's existence as a Delaware limited
partnership, in accordance with Section 17-216 of the DRULPA. Any certificate of
transfer or certificate of transfer and continuance shall be executed and filed
by the General Partner with the Office of the Secretary of State of the State of
Delaware.
Section 5. Reorganization. The Board of Directors, by majority vote, may,
without the vote of the Investors, cause the Partnership to sell, convey and
transfer all or substantially all of the assets of the Partnership, or all or
substantially all of the assets held with respect to any one or more Series (the
"Acquired Series"), to another limited partnership, trust, business trust,
general partnership, limited liability company, association or corporation
organized under the laws of any state, or to one or more separate series
thereof, or to the Partnership to be held as assets held with respect to one or
more other Series of the Partnership, in exchange for cash, shares or other
securities (including, without limitation, in the case of a transfer to another
Series of the Partnership, Interests in such other Series) with such transfer
either (a) being made subject to, or with the assumption by the transferee of,
the liabilities of the Partnership or the liabilities held with respect to each
Acquired Series, or (b) not being made subject to, or not with the assumption
of, such liabilities; provided, however, that, if required by the 1940 Act, no
assets held with respect to any particular Series shall be so sold, conveyed or
transferred unless the terms of such transaction shall first have been approved
at a meeting called for that purpose by a Majority Investor Vote of that Series.
Following such sale, conveyance and transfer, the Board of Directors shall
distribute such cash, shares or other securities (giving due effect to the
assets and liabilities held with respect to the Acquired Series, and any other
differences between or among the Acquired Series), ratably among the Investors
in the Partnership or the Acquired Series (giving due effect to the differences
among the various classes of Investors within each such Acquired Series); and if
all of the assets of the Partnership have been so sold, conveyed and
transferred, the Partnership shall be dissolved.
Section 6...General Partner and Investors.
-----------------------------
(a) General Partner. The initial General Partner is Federated Private Asset
Management, Inc. Such General Partner is initially the sole general partner of
the Partnership and is admitted without acquiring a Partnership interest in the
Partnership; provided however, that nothing herein shall prevent the General
Partner from acquiring Partnership interests, in its capacity as a general
partner of the Partnership, upon the creation of such interests by the Board of
Directors.
(b) Additional General Partners. Additional general partners may only be
admitted to the Partnership with the prior written consent of the General
Partner.
(c) Withdrawal of General Partner. The General Partner may withdraw from
the Partnership at any time, in its sole discretion, by giving one (1) year
prior written notice to the Partnership.
(d) No Right of Removal of General Partner. No Director or Investor shall
have the right, power or authority to remove the General Partner or cause the
General Partner to withdraw from the Partnership, except to the extent such
right, power or authority may be conferred on them by law.
(e) Admission of Investors. A Person becomes an Investor in the Partnership
upon such Person's admission to the Partnership as a limited partner. A Person
is admitted to the Partnership as a limited partner only upon such Person's (i)
execution of a writing evidencing such Person's assent to and agreement to be
bound by the terms and conditions of this Partnership Agreement; (ii) such
Person's purchase of an Interest in the Partnership in accordance with the terms
of this Partnership Agreement; and (iii) the reflection of such Person as an
owner of an Interest on the records of the Partnership.
Section 7...Amendments. Subject to the provisions of the second paragraph
of this Section 7 of this Article VIII, this Partnership Agreement may be
restated and/or amended at any time by an instrument in writing signed by the
General Partner and a majority of the then Board of Directors and, if required,
by approval of such amendment by Investors in accordance with Article V hereof.
The provisions of this Partnership Agreement (whether or not related to the
rights of Investors) may be amended at any time, so long as such amendment does
not adversely affect the rights of any Investor with respect to which such
amendment is or purports to be applicable and so long as such amendment is not
in contravention of applicable law, including the 1940 Act, by an instrument in
writing signed by a majority of the then Directors (or by an officer of the
Partnership pursuant to the vote of a majority of such Directors), without the
approval of the Investors. Any amendment to this Partnership Agreement that
adversely affects the rights of Investors may be adopted at any time by an
instrument signed in writing by a majority of the then Directors (or by any
officer of the Partnership pursuant to the vote of a majority of such Directors)
when authorized to do so by the vote of the Investors holding a majority of the
Interests entitled to vote. Any such restatement and/or amendment hereto shall
be effective immediately upon execution and approval or upon such future date
and time as may be stated therein. The Certificate of Limited Partnership of the
Partnership may be restated and/or amended by the General Partner, and any such
restatement and/or amendment shall be effective immediately upon filing with the
Office of the Secretary of State of the State of Delaware or upon such future
date and time as may be stated therein.
Without limiting the generality of the foregoing, this Partnership
Agreement may be amended without the need for Investor approval to: (a) create
one or more Series (in addition to any Series already existing or otherwise)
with such rights and preferences and such eligibility requirements for
investment therein as the Directors shall determine and reclassify any or all
outstanding Interests as Interests of particular Series in accordance with such
eligibility requirements; (b) combine two or more Series into a single Series on
such terms and conditions as the Directors shall determine; (c) change or
eliminate any eligibility requirement for investment in Interests of any Series,
including without limitation the power to provide for the issuance of Interests
of any Series in connection with any merger or consolidation of the Partnership
with another entity or any acquisition by the Partnership of part or all of the
assets of another entity; (d) change the designation of any Series; (e) change
the method of allocating unrealized gains and losses, taxable income and tax
loss, and profit and loss among the various Series; (f) allocate any specific
assets or liabilities of the Partnership or any specific items of income or
expense of the Partnership to one or more Series; and (g) specifically allocate
assets to any or all Series or create one or more additional Series which are
preferred over all other Series in respect of assets specifically allocated
thereto or any allocations made by the Partnership with respect to any item of
income or expense, however determined.
Notwithstanding the above, the Board of Directors and the General Partner
expressly reserve the right to amend or repeal any provisions contained in this
Partnership Agreement and the General Partner expressly reserves the right to
amend or repeal any provision contained in the Certificate of Limited
Partnership, in accordance with the provisions of Section 5 of Article III
hereof, and all rights, contractual and otherwise, conferred upon Investors are
granted subject to such reservation. The General Partner and the Board of
Directors further expressly reserve the right to amend or repeal any provision
of the By-Laws pursuant to Article X of the By-Laws.
Section 8...Determination of Book Capital Account Balances and Net Income.
Except as otherwise provided in the authorizing resolution for a Series, it is
the intention of the Board of Directors that the Partnership or, if Series are
authorized, each Series shall be treated as a partnership for federal income tax
purposes, and the Interests of the Partnership or each such Series shall possess
the relative rights and privileges described in this Section 8. Notwithstanding
any other provision in this Partnership Agreement to the contrary, the
determination and maintenance of Book Capital Accounts (as hereinafter defined)
and allocations of income or loss to each Investor of a Series shall be
determined in accordance with the following special provisions:
(a) Book Capital Accounts. The "Book Capital Account" balances of Investors
shall evidence their beneficial interest in the Partnership or a Series and
shall be determined daily at such time or times as the Directors may determine.
All determinations of Book Capital Accounts shall be in accordance with Section
704(b) of the Code, and the Treasury regulations promulgated thereunder,
including without limitation, Treasury Reg. Sections 1.704-1(b)(2)(iv)(f) and
(g) and 1.704-1(b)(4)(i) relating to revaluations of property. The power and
duty to determine and maintain the Book Capital Account balances of Investors
may be delegated by the Directors to the Investment Adviser, administrator,
custodian or such other person as the Directors may determine.
(b) Allocation of Income or Loss to Investors. Except as provided in
Section 8(d) of Article VIII hereof or as otherwise required by Sections 704(b)
and (c) of the Code, and the Treasury regulations promulgated thereunder, the
income, gain, loss, deductions or credits (or items thereof) of the Partnership
or a Series for a fiscal year shall be allocated to each Investor in accordance
with each such Investor's beneficial interest in the Partnership or such Series.
(c) Liquidating Distributions. Upon the liquidation, termination or
abolishment of the Partnership or a Series, or the liquidation or complete
redemption of an Investor's beneficial interest therein, any liquidating
distributions shall be made in accordance with the positive Book Capital Account
balances of the Investors, as determined after taking into account all Book
Capital Account adjustments for the Series' taxable year during which such
liquidation occurs, by the end of such taxable year (or, if later, within 90
days after the date of such liquidation).
(d) Special Allocations. The following special allocations shall be made in
the following order:
(i) Minimum Gain Chargeback. Except as otherwise provided in Treas. Reg.
Section 1.704-2(f) and notwithstanding any other provision of Section 8 of this
Article VIII, if there is a net decrease in partnership minimum gain (as defined
in Treas. Reg. Sections 1.704-2(b)(2) and 1.704-2(d)) during the Partnership's
or any Series' fiscal year, each Investor shall be specially allocated items of
income and gain for such year (and, if necessary, subsequent fiscal years) in an
amount equal to the Investor's share of the net decrease in partnership minimum
gain (determined in accordance with Treas. Reg. 1.704-2(g)). Allocations
pursuant to the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Investor pursuant thereto. The items to
be so allocated shall be determined in accordance with Treas. Reg. Sections
1.704-2(f)(6) and 1.704-2(j)(2).
The provisions of this Section 8(d)(i) are intended to comply with the
minimum gain chargeback requirement in Treas. Reg. Section 1.704-2(f) and shall
be interpreted in accordance therewith.
(ii) Deficit Capital Accounts and Qualified Income Offset. Notwithstanding
Section 8(a) hereof, no amounts will be allocated to any Investor to the extent
such allocation would cause or increase a deficit balance in such Investor's
Book Capital Account (in excess of any dollar amount of such deficit balance
that such Investor is obligated to restore under Treas. Reg. Section
1.704-1(b)(2)(ii)(c) - taking into account the next to last sentence of Treas.
Reg. Sections 1.704-2(g)(1) and (i)(5)) as of the end of the Series' fiscal year
to which such allocation relates. In determining the extent to which an
allocation would cause or increase a deficit balance in an Investor's Book
Capital Account, an Investor's Book Capital Account shall be hypothetically
decreased by the adjustments, allocations and distributions described in
paragraphs (4), (5) and (6) of Treas. Reg. Section 1.704-1(b)(2)(ii)(d).
If any Investor unexpectedly receives an adjustment, allocation or
distribution described in paragraphs (4), (5) or (6) of Treas. Reg. Section
1.704(b)(2)(ii)(d), which adjustment, allocation or distribution creates or
increases a deficit balance in that Investor's Book Capital Account, such
Investor shall be allocated items of income and gain (consisting of a pro rata
portion of each item of income, including gross income, and gain for such year)
in an amount and manner sufficient to eliminate such deficit balance as quickly
as possible; provided, however, that an allocation pursuant to this section
shall only be made if and to the extent that an Investor would have a deficit
Book Capital Account balance after all other allocations provided in Section
8(d) hereof have been tentatively made.
Any allocation made pursuant to this section is intended to constitute a
qualified income offset within the meaning of Treas. Reg. Section
1.704-1(b)(2)(ii)(d) and shall be interpreted in accordance therewith; and
(iii) Nonrecourse Deductions Nonrecourse deductions for any Series' fiscal
year or other period shall be allocated in accordance with Section 8(b) hereof.
(e) Tax Accounting Instructions. The officers of the Partnership are hereby
authorized and instructed to prepare and forward to the Partnership's
accountants or other agents with respect to the Partnership or each Series
instructions, as necessary, for maintaining book capital accounts and allocating
the income, gain, loss, deductions or credits (or items thereof) of the
Partnership or each Series to each Investor thereof.
Section 9...Filing of Copies, References, Headings. The original or a copy
of this Partnership Agreement and of each restatement and/or amendment hereto
shall be kept at the principal executive office of the Partnership where it may
be inspected by any Investor. Anyone dealing with the Partnership may rely on a
certificate by an officer of the Partnership as to whether or not any such
restatements and/or amendments have been made and as to any matters in
connection with the Partnership hereunder; and, with the same effect as if it
were the original, may rely on a copy certified by an officer of the Partnership
to be a copy of this instrument or of any such restatements and/or amendments.
In this Partnership Agreement and in any such restatements and/or amendments,
references to this instrument, and all expressions of similar effect to
"herein," "hereof" and "hereunder," shall be deemed to refer to this instrument
as amended or affected by any such restatements and/or amendments. Headings are
placed herein for convenience of reference only and shall not be taken as a part
hereof or control or affect the meaning, construction or effect of this
instrument. Whenever the singular number is used herein, the same shall include
the plural; and the neuter, masculine and feminine genders shall include each
other, as applicable.
Section 10..Applicable Law. This Partnership Agreement (including the
By-Laws) is created under and is to be governed by and construed and
administered according to the laws of the State of Delaware and the applicable
provisions of the 1940 Act and the Code. The Partnership shall be a Delaware
limited partnership pursuant to the DRULPA, and without limiting the provisions
hereof, the Partnership may exercise all powers that are ordinarily exercised by
such a limited partnership.
Section 11..Provisions in Conflict with Law or Regulations.
(a) The provisions of this Partnership Agreement are severable, and if the
Board of Directors shall determine, with the advice of counsel, that any of such
provisions is in conflict with the 1940 Act, the Code, the DRULPA, or with other
applicable laws and regulations, the conflicting provision shall be deemed not
to have constituted a part of this Partnership Agreement from the time when such
provisions became inconsistent with such laws or regulations; provided, however,
that such determination shall not affect any of the remaining provisions of this
Partnership Agreement or render invalid or improper any action taken or omitted
prior to such determination.
(b) If any provision of this Partnership Agreement shall be held invalid or
unenforceable in any jurisdiction, such invalidity or unenforceability shall
attach only to such provision in such jurisdiction and shall not in any manner
affect such provision in any other jurisdiction or any other provision of this
Partnership Agreement in any jurisdiction.
Section 12..[Reserved]
Section 13..Use of the Name "Federated." The Partnership acknowledges that
Federated Investors has reserved the right to grant the non-exclusive use of the
name "Federated" or any derivative thereof to any other investment company,
investment company portfolio, Investment Adviser, distributor, or other business
enterprise, and to withdraw from the Partnership or one or more Series any right
to the use of the name "Federated."
Section 14..Counterparts. This Partnership Agreement may be executed in one
or more separate counterparts, each when taken together, constitute the whole.
IN WITNESS WHEREOF, the parties named below have executed this Partnership
Agreement as of the date first written above.
Federated Private Asset Management, Inc.,
as General Partner
By:
---------------------------------
Name:
Title:
Federated Investment Counseling, as the
initial Investor
By:
---------------------------------
Name:
Title:
/s/
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, as Director
/s/
------------------------------------
, as Director
/s/
------------------------------------
, as Director