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
November 14, 2001
(i)
TABLE OF CONTENTS
Page
ARTICLE I. Name and Definitions..........................................1
Section 1. Name.........................................................1
Section 2. Registered Agent and Registered Office; Principal
Place of Business............................................2
(a) Registered Agent and Registered Office........................2
(b) Principal Place of Business...................................2
Section 3. Definitions..................................................2
(a) "1940 Act"....................................................2
(b) "Affiliate"...................................................2
(c) "Assignment"..................................................2
(d) "Board of Directors"..........................................2
(e) "By-Laws".....................................................2
(f) "Certificate of Limited Partnership"..........................2
(g) "Code"........................................................2
(h) "Commission"..................................................2
(i) "Director" or "Directors".....................................2
(j) "DRULPA"......................................................2
(k) "General Liabilities".........................................3
(l) "General Partner".............................................3
(m) "Interested Person"...........................................3
(n) "Interest"....................................................3
(o) "Investment Adviser" or "Adviser".............................3
(p) "Investor"....................................................3
(q) "Majority Investor Vote"......................................3
(r) "National Financial Emergency"................................3
(s) "Original Agreement"..........................................3
(t) "Partnership".................................................4
(u) "Partnership Agreement".......................................4
(v) "Partnership Property"........................................4
(w) "Person"......................................................4
(x) "Principal Underwriter".......................................4
(y) "Series"......................................................4
ARTICLE II. Purpose of the Partnership....................................4
ARTICLE III. Interests.....................................................6
Section 1. Authorization of Interests...................................6
Section 2. Ownership of Interests.......................................7
Section 3. Investments in the Partnership...............................8
Section 4. Status of Interests and Limitation of Personal
Liability....................................................8
Section 5. Power to Change Provisions Relating to Interests.............8
Section 6. Establishment and Designation of Series......................8
(a) Assets Held with Respect to a Particular Series...............9
(b) Liabilities Held with Respect to a Particular
Series........................................................9
(c) Distributions, Redemptions and Repurchases...................10
(d) Voting.......................................................10
(e) Equality.....................................................10
(f) Fractions....................................................10
(g) Exchange Privilege...........................................10
(h) Combination of Series........................................10
(i) Dissolution or Termination...................................11
Section 7. Indemnification of Investors................................11
ARTICLE IV. General Partner and the Board of Directors...................12
Section 1. General Partner Delegation; Powers of Board of
Directors...................................................12
Section 2. Payment of Expenses by the Partnership......................13
Section 3. Payment of Expenses by Investors............................13
Section 4. Ownership of Partnership Property...........................13
Section 5. Service Contracts...........................................13
Section 6. Election of Initial Directors by Initial Investors..........15
Section 7. Term of Office of Directors.................................15
Section 8. Termination of Service and Appointment of
Directors...................................................15
Section 9. [Reserved]..................................................16
Section 10. Effect of Death, Resignation, Removal, etc. of a
Director....................................................16
ARTICLE V. Investors' Voting Powers.....................................16
Section 1. Voting Powers and Required Vote.............................16
Section 2. Additional Provisions.......................................16
ARTICLE VI. Net Asset Value, Distributions and Redemptions...............17
Section 1. Determination of Net Asset Value, Net Income and
Distributions...............................................17
Section 2. Redemptions at the Option of an Investor....................17
Section 3. Redemptions at the Option of the Partnership................18
ARTICLE VII. Compensation; Limitation of Liability of General
Partner, Directors and Officers; and
Indemnification of Directors, Officers, Employees
and Other Agents.............................................19
Section 1. Compensation................................................19
Section 2. Limitation of Liability.....................................19
Section 3. Indemnification of Directors, Officers, Employees
and Other Agents............................................19
(a) Agents, Proceedings and Expenses.............................19
(b) Indemnification by Partnership...............................20
(c) Exclusion of Indemnification.................................20
(d) Required Approval............................................20
(e) Advancement of Expenses......................................20
(f) Other Contractual Rights; Indemnification Not
Exclusive....................................................20
Section 4. General Partner's, Officers' and Directors' Good
Faith Action, Expert Advice, No Bond or Surety..............20
Section 5. Insurance...................................................21
ARTICLE VIII. Miscellaneous................................................21
Section 1. Liability of Third Persons Dealing with Directors...........21
Section 2. [Reserved]..................................................21
Section 3. Dissolution of Partnership or Series........................21
Section 4. Merger and Consolidation; Conversion; Transfer to
Another Jurisdiction........................................23
(a) Merger and Consolidation.....................................23
(b) Conversion...................................................23
(c) Transfer to Another Jurisdiction.............................23
Section 5. Reorganization..............................................23
Section 6. General Partner and Investors...............................25
(a) General Partner..............................................25
(b) Additional and Successor General Partners....................25
(c) Withdrawal of General Partner................................25
(d) Removal of General Partner...................................25
(e) Admission of Investors.......................................25
Section 7. Amendments..................................................25
Section 8. Determination of Book Capital Account Balances and
Net Income..................................................26
(a) Book Capital Accounts........................................26
(b) Allocation of Income or Loss to Investors....................26
(c) Liquidating Distributions....................................26
(d) Special Allocations..........................................26
(e) Tax Accounting Instructions..................................27
Section 9. Filing of Copies, References, Headings......................27
Section 10. Applicable Law..............................................28
Section 11. Provisions in Conflict with Law or Regulations..............28
Section 12. [Reserved]..................................................28
Section 13. Use of the Name "Federated."................................28
Section 14. Counterparts................................................28
11
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
FEDERATED CORE TRUST II, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP made as of
this 14th day of November, 2001, by and among the General Partner and
the Directors hereunder.
W I T N E S S E T H:
WHEREAS this Partnership was formed under the Delaware Revised
Uniform Limited Partnership Act (6 Del. C. ss.17-101, et seq.), as from
time to time amended (the "DRULPA"), pursuant to (a) the execution of
the Original Agreement, and (b) the filing of the Certificate of
Limited Partnership in the Office of the Secretary of State of the
State of Delaware on November 13, 2000; and
WHEREAS, the parties hereto desire to amend and restate the
Original Agreement by this Amended and Restated Agreement of Limited
Partnership in order that the Partnership be governed by the provisions
herein; and
WHEREAS this Partnership is authorized to issue its Interests in
separate Series, and to divide any Series into two or more classes of
Investors, all in accordance with the provisions hereinafter set forth;
and
WHEREAS, the General Partner has irrevocably delegated its
authority to manage the business and affairs of the Partnership to the
Board of Directors, pursuant to Section 17-403 of the DRULPA; and
WHEREAS, the parties hereto intend that the Partnership shall
continue to have the ability to exercise all powers and privileges
granted to a limited partnership formed under the laws of the State of
Delaware, and particularly, the DRULPA;
NOW, THEREFORE, in consideration of the mutual promises and
agreements made herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
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 IX 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 on November 13, 2000 with the Office of
the Secretary of State of the State of Delaware by the General Partner
as required under the DRULPA to form the Partnership, as amended and
restated from time to time.
(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 Directors in accordance with the
provisions hereof. Reference herein to a Director or the Directors
shall refer to such Person or Persons in their capacity as directors
hereunder.
(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 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 partnership interest (as
defined in Section 17-101(13) of the DRULPA), rights, powers and
authority in and with respect to the Partnership, which Interest shall
be denominated in a unit.
(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 Investor shall have
all the rights afforded to a shareholder 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 Agreement of Limited
Partnership entered into on November 13, 2000 by and among the General
Partner, the Directors and the initial Investor as to the affairs of
the Partnership and the conduct of its business.
(t) "Partnership" shall mean the Delaware limited partnership formed
by the execution of the Original Agreement and the filing of the
Certificate of Limited Partnership, and governed by this Partnership
Agreement, as amended and restated from time to time, inclusive of each
and every Series established hereunder.
(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 0000 Xxx.
(y) "Series" shall refer to the International High Income Core Fund
(formerly known as the Emerging Markets Fixed Income Core Fund) and to
each series of Interests established and designated in the future under
or in accordance with the provisions of Article III and shall mean an
entity such as that described in Section 18(f)(2) of the 1940 Act, and
subject to Rule 18f-2 thereunder. See Amd. #1, dated 11/13/02.
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 Board of Directors shall deem proper, granting to such
Person or Persons such power and discretion with relation to securities
or property as the Board of Directors shall deem proper;
(e)...To exercise powers and right of subscription or otherwise
which in any manner arise out of ownership of securities;
(f)...To hold any security or property in a form not indicating
that it is limited partnership property, whether in bearer,
unregistered or other negotiable form, or in its own name or in the
name of a custodian or subcustodian or a nominee or nominees or
otherwise or to authorize the custodian or a subcustodian or a nominee
or nominees to deposit the same in a securities depository, subject in
each case to proper safeguards according to the usual practice of
investment companies or any rules or regulations applicable thereto;
(g)...To consent to, or participate in, any plan for the
reorganization, consolidation or merger of any corporation or issuer of
any security which is held in the Partnership; to consent to any
contract, lease, mortgage, purchase or sale of property by such
corporation or issuer; and to pay calls or subscriptions with respect
to any security held in the Partnership;
(h)...To join with other security holders in acting through a
committee, depositary, voting trustee or otherwise, and in that
connection to deposit any security with, or transfer any security to,
any such committee, depositary or trustee, and to delegate to them such
power and authority with relation to any security (whether or not so
deposited or transferred) as the Board of Directors shall deem proper,
and to agree to pay, and to pay, such portion of the expenses and
compensation of such committee, depositary or trustee as the Board of
Directors shall deem proper;
(i)...To compromise, arbitrate or otherwise adjust claims in
favor of or against the Partnership or any matter in controversy,
including but not limited to claims for taxes;
(j)...To enter into joint ventures, general or limited
partnerships and any other combinations or associations;
(k)...To endorse or guarantee the payment of any notes or other
obligations of any Person; to make contracts of guaranty or suretyship,
or otherwise assume liability for payment thereof;
(l)...To purchase and pay for entirely out of Partnership
Property such insurance as the Board of Directors may deem necessary or
appropriate for the conduct of the business, including, without
limitation, insurance policies insuring the assets of the Partnership
or payment of distributions and principal on its portfolio investments,
and insurance policies insuring the Investors, the General Partner,
Directors, officers, employees, agents, Investment Advisers, Principal
Underwriters, or independent contractors of the Partnership,
individually against all claims and liabilities of every nature arising
by reason of holding Interests, holding, being or having held any such
office or position, or by reason of any action alleged to have been
taken or omitted by any such Person as General Partner, Director,
officer, employee, agent, Investment Adviser, Principal Underwriter, or
independent contractor, to the fullest extent permitted by this
Partnership Agreement (including the By-Laws) and by applicable law;
(m)...To adopt, establish and carry out pension, profit-sharing,
share bonus, share purchase, savings, thrift and other retirement,
incentive and benefit plans, trusts and provisions, including the
purchasing of life insurance and annuity contracts as a means of
providing such retirement and other benefits, for any or all of the
General Partner, Directors, officers, employees and agents of the
Partnership;
(n)...To purchase or otherwise acquire, own, hold, sell,
negotiate, exchange, assign, transfer, mortgage, pledge or otherwise
deal with, dispose of, use, exercise or enjoy, property of all kinds;
(o)...To buy, sell, mortgage, encumber, hold, own, exchange, rent
or otherwise acquire and dispose of, and to develop, improve, manage,
subdivide, and generally to deal and trade in real property, improved
and unimproved, and wheresoever situated; and to build, erect,
construct, alter and maintain buildings, structures, and other
improvements on real property;
(p)...To borrow or raise moneys for any of the purposes of the
Partnership, and to mortgage or pledge the whole or any part of the
property and franchises of the Partnership, real, personal, and mixed,
tangible or intangible, and wheresoever situated;
(q)...To enter into, make and perform contracts and undertakings
of every kind for any lawful purpose, without limit as to amount; and
(r)...To issue, purchase, sell and transfer, reacquire, hold,
trade and deal in Interests, bonds, debentures and other securities,
instruments or other property of the Partnership, from time to time, to
such extent as the Board of Directors shall, consistent with the
provisions of this Partnership Agreement, determine; and to repurchase
and redeem, from time to time, its Interests or, if any, its bonds,
debentures and other securities.
The Partnership shall not be limited to investing in obligations
maturing before the possible dissolution of the Partnership or one or
more of its Series. The Directors shall not in any way be bound or
limited by any present or future law or custom in regard to investment
by fiduciaries. Neither the Partnership nor the Directors shall be
required to obtain any court order to deal with any assets of the
Partnership or take any other action hereunder.
The foregoing clauses shall each be construed as purposes,
objects and powers, and it is hereby expressly provided that the
foregoing enumeration of specific purposes, objects and powers shall
not be held to limit or restrict in any manner the powers of the
Partnership, and that they are in furtherance of, and in addition to,
and not in limitation of, the general powers conferred upon the
Partnership by the DRULPA and the other laws of the State of Delaware
or otherwise; nor shall the enumeration of one thing be deemed to
exclude another, although it be of like nature, not expressed.
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, or to the extent any Interests are not associated
with a Series, such Interests shall have the rights, powers and duties
provided for herein and in Article III, Section 6 hereof to the extent
relevant and not otherwise provided for herein, and all references to
Series and classes shall be construed (as the context may require) to
refer to the Partnership with respect to such Interests. The fact that
a Series shall have initially been established and designated without
any specific establishment or designation of classes of Investors of
such Series shall not limit the authority of the Board of Directors to
establish and designate separate classes of Investors of said Series.
The fact that a Series shall have more than one established and
designated class of Investors shall not limit the authority of the
Board of Directors to establish and designate additional classes of
Investors of said Series, or to establish and designate separate
classes of the previously established and designated classes.
The Board of Directors shall have the power to issue Interests of
the Partnership, or any Series thereof, from time to time for such
consideration (but not less than the net asset value thereof) and in
such form as may be fixed from time to time by the Board of Directors.
The Board of Directors may reissue for such consideration and on
such terms as it may determine, or cancel, at its discretion from time
to time, any Interests of the Partnership or any Series reacquired by
the Partnership. The Board of Directors may classify or reclassify any
unissued Interests or any Interests previously issued and reacquired of
the Partnership or any Series into one or more Series that may be
established and designated from time to time, and may also classify or
reclassify any Series or any class of Investors associated with a
Series into one or more classes of Investors associated with such
Series that may be established and designated from time to time.
Notwithstanding the foregoing, the Partnership and any Series thereof
may acquire, hold, sell and otherwise deal in, for purposes of
investment or otherwise, the Interests of any other Series of the
Partnership or Interests of the Partnership, and such Interests shall
not be deemed cancelled.
Subject to the provisions of Section 6 of this Article III, each
Interest shall have voting rights as provided in Article V hereof, and
the Investors of the Partnership or any Series shall be entitled to
receive distributions, when, if and as declared with respect thereto in
the manner provided in Article IV, Section 1 hereof. No Interest shall
have any priority or preference over any other Interest of the same
Series with respect to distributions paid in the ordinary course of
business or distributions upon dissolution of the Partnership or of
such Series made pursuant to Article VIII, Section 3 hereof. All
distributions shall be made ratably among all Investors of a Series
from the Partnership Property held with respect to such Series
according to the number of Interests of such Series held of record by
such Investors on the record date for any distribution. Investors
shall have no preemptive or other right to subscribe to new or
additional Interests or other securities issued by the Partnership or
any Series. The Board of Directors may from time to time divide or
combine the Interests of any particular Series into a greater or lesser
number of Interests of that Series. Such division or combination may
not materially change the proportionate interests of the Investors of
that Series in the Partnership Property held with respect to that
Series or materially affect the rights of Investors of any other Series.
No Director, officer, employee, or other agent of the Partnership
may acquire or own Interests of any Series.
The Board of Directors, by majority vote, is authorized to
create, from time to time, partnership interests (as defined in Section
17-101(13) of the DRULPA) for acquisition by the General Partner, in
its capacity as a general partner of the Partnership, such partnership
interests to be accompanied by such rights, powers, restrictions and
liabilities as determined by the Board of Directors at such time.
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 or fractional
Interests of the Partnership, or such Series and class thereof as the
purchaser may select, at the net asset value per unit of Interest next
determined for the Partnership or such Series, as applicable, after
receipt of the investment; provided, however, that the Principal
Underwriter may, in its sole discretion, impose a sales charge upon
investments in the Partnership or such Series.
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, which
resolution shall set forth such establishment and designation and may
provide, to the extent permitted by the DRULPA, for rights, powers and
duties of such Series or class otherwise than as provided below. Each
such resolution shall constitute a part of this Partnership Agreement
upon adoption.
Each Series shall be separate and distinct from any other Series,
separate and distinct records on the books of the Partnership shall be
maintained for each Series, and the assets and liabilities belonging to
any such Series shall be held and accounted for separately from the
assets and liabilities of the Partnership or any other Series.
Interests of each Series (and class of Investors, where
applicable) established pursuant to this Section 6, unless otherwise
provided in the resolution establishing such Series, shall have the
following rights, powers and duties:
(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, costs, charges,
reserves and expenses of the Partnership incurred, contracted for or
otherwise existing with respect to such Series. Such liabilities,
debts, obligations, costs, charges, reserves and expenses incurred,
contracted for or otherwise existing with respect to a particular
Series are herein referred to as "liabilities held with respect to"
that Series. Any liabilities, debts, obligations, expenses, costs,
charges and reserves of the Partnership that are not readily
identifiable as being liabilities held with respect to any particular
Series (collectively "General Liabilities") shall be allocated and
charged by the Board of Directors to and among any one or more of the
Series in such manner and on such basis as the Board of Directors in
its sole discretion deems fair and equitable. Each allocation of
liabilities, expenses, costs, charges and reserves by the Board of
Directors shall be conclusive and binding upon the Investors of all
Series for all purposes. All Persons who have extended credit that has
been allocated to a particular Series, or who have a claim or contract
that has been allocated to any particular Series, shall look, and shall
be required by contract to look exclusively, to the assets of that
particular Series for payment of such credit, claim, or contract. In
the absence of an express contractual agreement so limiting the claims
of such creditors, claimants and contract providers, each creditor,
claimant and contract provider shall be deemed nevertheless to have
impliedly agreed to such limitation.
Subject to the right of the Board of Directors in its discretion
to allocate General Liabilities as provided herein, the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to a particular Series, whether such
Series is now authorized and existing pursuant to this Partnership
Agreement or is hereafter authorized and existing pursuant to this
Partnership Agreement, shall be enforceable against the assets held
with respect to such particular Series only, and not against the assets
of any other Series or the General Assets of the Partnership and none
of the General Liabilities of the Partnership or the debts,
liabilities, obligations and expenses incurred, contracted for or
otherwise existing with respect to any other Series thereof shall be
enforceable against the assets held with respect to such particular
Series. Notice of this limitation on liabilities between and among
Series shall be set forth in the Certificate of Limited Partnership to
be filed in the Office of the Secretary of State of the State of
Delaware pursuant to the DRULPA, and upon the giving of such notice in
the Certificate of Limited Partnership, the statutory provisions of
Section 17-218 of the DRULPA relating to limitations on liabilities
between and among Series (and the statutory effect under Section 17-218
of setting forth such notice in the Certificate of Limited Partnership)
shall become applicable to the Partnership and each Series.
(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, in the case of a right or claim
against the assets held with respect to any other Series, to the extent
that such Investor has such a right or claim hereunder as an Investor
of such other Series. The Board of Directors shall have full
discretion, to the extent not inconsistent with the 1940 Act, to
determine which items shall be treated as income and which items as
capital, and each such determination and allocation shall be conclusive
and binding upon the Investors.
(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 Board of Directors may, in its 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 was
combined.
(i) Dissolution or Termination. Any particular Series shall be
dissolved upon the occurrence of the applicable dissolution events set
forth in Article VIII, Section 3. In addition, the General Partner and
the Board of Directors shall have the authority, without the approval
of Investors of any Series, unless otherwise required by applicable
law, to amend this Partnership Agreement to adopt a resolution
dissolving any such Series and rescinding the establishment and
designation thereof. Any particular class shall be terminated at the
time there are no Investors of the particular class. In addition, the
Board of Directors shall have the authority, without the approval of
Investors of any class, unless otherwise required by applicable law, to
adopt a resolution terminating any such class and rescinding the
establishment and designation thereof; provided, however, that upon the
dissolution of any particular series, every class of such series shall
thereby be terminated. Each such resolution shall constitute a part of
this Partnership Agreement upon adoption.
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 (in
the case of a natural person, his or her heirs, executors,
administrators, or other legal representatives or, in the case of a
corporation or other entity, its corporate or other general successor)
shall be entitled to be held harmless from, and indemnified out of the
assets of the Partnership or out of the assets of the applicable
Series, as the case may be, against, all loss and expense arising from
such claim or demand; provided, however, that there shall be no
liability or obligation of the Partnership, or any particular Series,
as the case may be, arising hereunder to reimburse any Investor for
taxes paid by reason of such Investor's ownership of any Interest. The
Partnership shall, upon request of an Investor or former Investor,
assume the defense of any action made against any Investor for any
obligation of the Partnership or any Series and satisfy any judgment
thereof.
ARTICLE IV..
General Partner and 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. Without limiting the foregoing, the Board of
Directors shall have all the powers granted to a board of directors
under the 1940 Act. Any determination as to what is in the best
interests of the Partnership made by the Board of Directors in good
faith shall be conclusive. The powers delegated to the Board of
Directors in this Section 1 are without prejudice to the delegated
powers of the Board of Directors set forth in the other provisions of
this Partnership Agreement (including the By-Laws).
In construing the provisions of this Partnership Agreement, the
presumption shall be in favor of a grant of power to the Board of
Directors. Unless otherwise specified herein or required by law,
actions by the Board of Directors shall be taken in accordance with the
By-Laws.
Any action required or permitted to be taken by the Board of
Directors, or a committee thereof, may be taken without a meeting,
without prior notice, if a majority of the members of the Board of
Directors, or committee thereof, as the case may be, shall individually
or collectively consent in writing to that action. Such action by
written consent shall have the same force and effect as a majority vote
at a meeting of the Board of Directors, or committee thereof, as the
case may be. Such written consent or consents shall be filed with the
minutes of the proceedings of the Board of Directors, or committee
thereof, as the case may be.
The General Partner and the Directors shall devote to the affairs
of the Partnership such time as may be necessary for the proper
performance of their respective duties hereunder, but the General
Partner and the Directors are not expected to devote their full time to
the performance of such duties. The Directors, the General Partner or
any Affiliate, partner or employee thereof, may engage in, or possess
an interest in, any other business or venture of any nature and
description, independently or with or for the account of others. None
of the Partnership or any Investor shall have the right to participate
or share in such business or venture or any profit or compensation
derived therefrom.
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, Directors or its
Investors, provided that the establishment of and
performance under each such contract is permissible under
the provisions of the 1940 Act.
(e)...Every contract referred to in this Section 5 shall comply
with such requirements and restrictions as may be set forth in the
By-Laws or the 1940 Act or stipulated by resolution of the Board of
Directors. Any such contract may contain such other terms as the Board
of Directors may determine.
Section 6...Election of Initial Directors by Initial Investors. The
initial Investor has previously elected the initial Board of Directors,
the election of each such Director being evidenced by his or her
execution of the Original Partnership Agreement. Subject to the
preceding sentence and unless otherwise required by the 1940 Act or any
court or regulatory body of competent jurisdiction, or unless the Board
of Directors determines otherwise, a Director initially shall be
elected by the Board of Directors; provided, however, that Investors
shall have the power to fill any vacancies in the Board of Directors.
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 that (a) any Director may resign his
office at any time by written instrument signed by him and delivered to
the other Directors, which shall take effect upon such delivery or upon
such later date as is specified therein; (b) any Director may be
removed at any time by written instrument signed by at least two-thirds
of the number of Directors prior to such removal, specifying the date
when such removal shall become effective; (c) any Director who requests
in writing to be retired or who has become mentally or physically
incapacitated may be retired by written instrument signed by a majority
of the other Directors, specifying the date of his retirement; and (d)
a Director may be removed at any special meeting of Investors of the
Partnership by a vote of two-thirds of the outstanding Interests. Any
removals shall be effective as to the Partnership and each Series
hereunder.
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...[Reserved].
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 this Partnership
Agreement; (ii) for the removal of Directors, as provided in Article
IV, Section 7; (iii) with respect to any Investment Adviser (including
any sub-investment adviser); (iv) with respect to the amendment of this
Partnership Agreement, as provided in Article VIII, Section 7; (v) with
respect to such additional matters relating to the Partnership as may
be required by this Partnership Agreement (including the By-Laws), the
1940 Act or any registration statement of the Partnership filed with
the Commission; and on such other matters as the Board of Directors may
consider necessary or desirable.
The Investor of record (as of the record date established
pursuant to Article II, Section 11 of the By-Laws) of each Interest
shall be entitled to one vote for each full Interest, and a fractional
vote for each fractional Interest. Investors shall not be entitled to
cumulative voting in the election of Directors or on any other matter.
Interests may be voted in person or by proxy. Subject to any
applicable requirement of law or any other provision of this
Partnership Agreement (including the By-Laws), a plurality of the votes
cast by Investors shall elect a Director, and all other matters shall
be decided by a majority of the votes cast by Investors and entitled to
vote thereon.
Until Interests of a Series are issued, the Board of Directors
may exercise all of the rights of the Investors of such Series with
respect to the Partnership or such particular Series required or
permitted by law or this Partnership Agreement (including the By-Laws)
to be taken by Investors.
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 this Partnership Agreement (including
the By-Laws) and applicable law. Subject to paragraph (c) below,
payment for said Interest shall be made by the Partnership to the
Investor within seven days after the date on which the request is
received in proper form. The obligation set forth in this Section 2 is
subject to the provision that (i) in the event that the New York Stock
Exchange (the "Exchange") is closed for other than weekends or
holidays, (ii) if permitted by the Rules of the Commission during
periods when trading on the Exchange is restricted or during any
National Financial Emergency which makes it impracticable for the
Partnership to dispose of the investments of the Partnership or
applicable Series or to determine fairly the value of the net assets of
the Partnership or held with respect to such Series, or (iii) during
any other period permitted by order of the Commission for the
protection of investors, such obligations may be suspended or postponed
by the Board of Directors. If certificates have been issued to an
Investor, any such request by such Investor must be accompanied by
surrender of any outstanding certificate or certificates for such
Interest in form for transfer, together with such proof of the
authenticity of signatures as may reasonably be required on such
Interests and accompanied by proper stock transfer stamps, if
applicable.
(b)...Payments for Interests so redeemed by the Partnership shall
be made in cash, except payment for such Interests may, at the option
of the Board of Directors, or such officer or officers as the Board of
Directors may duly authorize in its complete discretion, be made in
kind, or partially in cash and partially in kind. In case of any
payment in kind, the Board of Directors, or its delegate, shall have
absolute discretion as to what security or securities of the
Partnership shall be distributed in kind and the amount of the same;
and the securities distributed shall be valued for purposes of
distribution at the value at which they were appraised in computing the
then current net asset value of the Interests, provided that any
Investor who cannot legally acquire securities so distributed in kind
by reason of the prohibitions of the 1940 Act or the provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
shall receive cash. Investors shall bear the expenses of in-kind
transactions, including, but not limited to, transfer agency fees,
custodian fees and costs of disposition of such securities.
(c)...If payment shall be made other than exclusively in cash,
any securities to be delivered as part of such payment shall be
delivered as promptly as any necessary transfers of such securities on
the books of the several corporations whose securities are to be
delivered practicably can be made, which may not necessarily occur
within such seven-day period. In no case shall the Partnership be
liable for any delay of any corporation or other Person in transferring
securities selected for delivery as all or part of any payment in kind.
(d)...The right of Investors to receive distributions on
Interests may be set forth in a plan adopted by the Board of Directors
and amended from time to time pursuant to Rule 18f-3 under the 1940
Act. The right of any Investor of the Partnership to receive
distributions on Interests redeemed and all other rights of such
Investor with respect to the Interests so redeemed by the Partnership,
except the right of such Investor to receive payment for such
Interests, shall cease at the time as of which the purchase price of
such Interests shall have been fixed, as provided above.
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; Limitation of Liability of
General Partner, Directors and Officers; and Indemnification
of Directors, Officers, Employees and Other Agents
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...Limitation of Liability.
(a)...To the fullest extent that limitations on the liability of
the General Partner, the Directors and officers are permitted by the
DRULPA, the General Partner, officers and Directors shall not be
responsible or liable in any event for any act or omission of any
agent, employee, Investment Adviser or Principal Underwriter of the
Partnership; with respect to the General Partner, the act or omission
of any Director or officer; or with respect to each Director and
officer, the act or omission of any other Director or officer,
respectively. This limitation on liability applies to events occurring
at the time a Person serves as a General Partner, Director or officer
of the Partnership, whether or not such Person is a General Partner,
Director or officer at the time of any proceeding in which liability is
asserted. Nothing herein contained shall indemnify, hold harmless or
protect the General Partner, any officer or Director from or against
any liability to the Partnership or any Investor to which such Person
would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of such Person's office.
(b)...Every note, bond, contract, instrument, certificate or
undertaking and every other act or document whatsoever issued, executed
or done by or on behalf of the Partnership, the General Partner, the
officers or the Directors or any of them in connection with the
Partnership shall be conclusively deemed to have been issued, executed
or done only in such Person's capacity as General Partner, Director
and/or as officer, and such General Partner, Director or officer, as
applicable, shall not be personally liable therefore.
Section 3...Indemnification of Directors, Officers, Employees and Other
Agents.
(a) Agents, Proceedings and Expenses. For the purpose of this
Article, "agent" means any person who is or was a Director, General
Partner, officer, employee or other agent of the Partnership, or is or
was serving at the request of the Partnership, as a trustee, director,
officer, employee or other agent of another foreign or domestic
corporation, partnership, joint venture, trust or other enterprise;
"proceeding" means any threatened, pending or completed action or
proceeding, whether civil, criminal, administrative or investigative;
and "expenses" include, without limitation, attorneys' fees and any
expenses of establishing a right to indemnification under this Article.
(b) Indemnification by Partnership. The Partnership, out of the
Partnership Property, shall indemnify and hold harmless any Person who
was or is a party or is threatened to be made a party to any proceeding
(other than an action by or in the right of the Partnership) by reason
of the fact that such Person is or was an agent of the Partnership and
arising out of or related to such Person's performance of his or her
duties as an agent, against expenses, judgments, fines, settlements and
other amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner that such
person reasonably believed to be in the best interests of the
Partnership and, in the case of a criminal proceeding, had no
reasonable cause to believe the conduct of such person was unlawful.
The termination of any proceeding by judgment, order, settlement,
conviction or plea of nolo contendere or its equivalent shall not of
itself create a presumption that the person did not act in good faith
or in a manner that the person reasonably believed to be in the best
interests of the Partnership or, with respect to a criminal proceeding,
that the person had reasonable cause to believe that the person's
conduct was unlawful.
(c) Exclusion of Indemnification. Notwithstanding any provision to
the contrary contained herein, there shall be no right to
indemnification for any liability to the Partnership or the Investors
arising by reason of willful misfeasance, bad faith, gross negligence,
or the reckless disregard of the duties involved in the conduct of the
agent's office with the Partnership. No indemnification shall be made
under this Article: (i) in respect of any claim, demand, issue or
matter as to which that Person shall have been adjudged to be liable in
the performance of that Person's duty to the Partnership, unless and
only to the extent that the court in which that action was brought
shall determine upon application or otherwise that, in view of all the
circumstances of the case, that Person was not liable by reason of the
disabling conduct set forth above and is fairly and reasonably entitled
to indemnity for the expenses which the court shall determine; (ii) in
respect of any claim, demand, issue, or matter as to which that Person
shall have been adjudged to be liable on the basis that personal
benefit was improperly received by him, whether or not the benefit
resulted from an action taken in the person's official capacity; (iii)
of amounts paid in settling or otherwise disposing of a threatened or
pending action, with or without court approval, or of expenses incurred
in defending a threatened or pending action that is settled or
otherwise disposed of without court approval, unless the required
approval set forth in paragraph (d) of this Article VII is obtained.
(d) Required Approval. Any indemnification under this Section shall
be made by the Partnership if authorized in the specific case on a
determination that indemnification of the agent is proper in the
circumstances by either a majority vote of a quorum consisting of
Directors who are not parties to the proceeding and are disinterested
Directors, or a committee of such Directors designated by majority vote
of such Directors, even though less than a quorum; or by a written
opinion by an independent counsel.
(e) Advancement of Expenses. Expenses incurred by an agent in
defending any proceeding may be advanced by the Partnership before the
final disposition of any action, suit or proceeding upon receipt of an
undertaking by or on behalf of the agent to repay the amount of the
advance, if it shall be determined ultimately that the agent is
entitled to be indemnified as authorized in this Section.
(f) Other Contractual Rights; Indemnification Not Exclusive. Nothing
contained in this Section shall affect any rights to indemnification to
which persons thereof may be entitled by contract or otherwise under
law, nor the power of the Partnership to purchase and maintain
liability insurance on behalf of such persons. The right of
indemnification hereby provided shall not be exclusive of or effect any
other rights to which any agent may be entitled.
Section 4...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 5...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...[Reserved].
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 and Successor General Partners. Subject to the
provisions of Section 3 of this Article VIII, additional and successor
general partners may only be admitted to the Partnership with the
approval of the Board of Directors.
(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) Removal of General Partner. The Directors and Investors shall
have the right, power and authority to remove the General Partner or
cause the General Partner to withdraw from the Partnership.
(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 (including the By-Laws); 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, the Board of Directors
shall have determined that such amendment is consistent with the fair
and equitable treatment of all Investors, Investor approval is not
otherwise required by the 1940 Act or other applicable law, and so long
as such amendment is not in contravention of applicable law, including
the 1940 Act, by an instrument in writing signed by the General
Partner, at the request of the Board of Directors, a majority of the
then Board of Directors (or by an officer of the Partnership pursuant
to the vote of a majority of the then Board of Directors), without the
approval of the Investors. Any amendment to this Partnership Agreement
that adversely affects the rights of Investors may be adopted at any
time by an instrument signed in writing by the General Partner, at the
request of the Board of Directors, by a majority of the then Board of
Directors (or by any officer of the Partnership pursuant to the vote of
a majority of the then Board of Directors) when authorized to do so by
the vote of the Investors holding a majority of the Interests entitled
to vote. Any such restatement and/or amendment hereto shall be
effective immediately upon execution and approval or upon such future
date and time as may be stated therein.
Notwithstanding the foregoing, this Partnership Agreement may be
amended without the need for Investor approval to: (a) create one or
more Series (in addition to any Series already existing or otherwise)
with such rights and preferences and such eligibility requirements for
investment therein as the Directors shall determine and reclassify any
or all outstanding Interests as Interests of particular Series in
accordance with such eligibility requirements; (b) combine two or more
Series into a single Series on such terms and conditions as the
Directors shall determine; (c) change or eliminate any eligibility
requirement for investment in Interests of any Series, including
without limitation the power to provide for the issuance of Interests
of any Series in connection with any merger or consolidation of the
Partnership with another entity or any acquisition by the Partnership
of part or all of the assets of another entity; (d) change the
designation of any Series; (e) change the method of allocating
unrealized gains and losses, taxable income and tax loss, and profit
and loss among the various Series; (f) allocate any specific assets or
liabilities of the Partnership or any specific items of income or
expense of the Partnership to one or more Series; and (g) specifically
allocate assets to any or all Series or create one or more additional
Series which are preferred over all other Series in respect of assets
specifically allocated thereto or any allocations made by the
Partnership with respect to any item of income or expense, however
determined.
Subject to the foregoing restrictions, the Certificate of Limited
Partnership may be restated and/or amended by the General Partner, at
the request of the Board of Directors, and any such restatement and/or
amendment shall be effective immediately upon filing with the Office of
the Secretary of State of the State of Delaware or upon such future
date and time as may be stated therein.
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: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: Executive Vice
President
DIRECTORS of the Partnership, solely in their capacity as such
and not as partners:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx, M.D.
Xxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxxxxxx /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxxxxxx Xxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxxx /s/ Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxx
/s/ J. Xxxxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
J. Xxxxxxxxxxx Xxxxxxx Xxxx X. Xxxxx
Amendment No. 1
to the
Amended and Restated Agreement of Limited Partnership
Federated Core Trust II, L.P.
a Delaware Limited Partnership
This Agreement of Limited Partnership is amended as follows:
A. Strike subsection y, Series, of Section 3, Definitions, of
Article I Names and Definitions, and substitute in its place the
follows:
(y) "Series" shall refer to the Emerging Markets Fixed Income Core
Fund (formerly known as International High Income Core Fund) and
Mortage Core Fund and to each series of Interests established and
designated in the future under or in accordance with the provisions of
Article III and shall mean an entity such as that described in Section
18(f)(2) of the 1940 Act, and subject to Rule 18f-2 thereunder.
IN WITNESS WHEREOF, the parties named below have executed this
Partnership Agreement as of the 13th day of November, 2002.
Federated Private Asset
Management, Inc., as General
Partner
By: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: Executive Vice
President
DIRECTORS of the Partnership, solely in their capacity as such
and not as partners:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx, M.D.
Xxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxxxxxx /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxxxxxx Xxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxxx /s/ Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxx
/s/ J. Xxxxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
J. Xxxxxxxxxxx Xxxxxxx Xxxx X. Xxxxx
Amendment No. 2
to the
Amended and Restated Agreement of Limited Partnership
Federated Core Trust II, L.P.
a Delaware Limited Partnership
This Agreement of Limited Partnership is amended as follows:
ARTICLE IX. Strike subsection y, Series, of Section 3, Definitions, of
Article I Names and Definitions, and substitute in its place the
follows:
(y) "Series" shall refer to the Emerging Markets Fixed Income Core
Fund (formerly known as International High Income Core Fund), Mortgage
Core Fund and Large Cap Equity Core Fund and to each series of
Interests established and designated in the future under or in
accordance with the provisions of Article III and shall mean an entity
such as that described in Section 18(f)(2) of the 1940 Act, and subject
to Rule 18f-2 thereunder.
IN WITNESS WHEREOF, the parties named below have executed this
Partnership Agreement as of the 22nd day of August, 2003.
Federated Private Asset
Management, Inc., as General
Partner
By: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: Executive Vice
President
DIRECTORS of the Partnership, solely in their capacity as such
and not as partners:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx, M.D.
Xxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxxxxxx /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxxxxxx Xxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxxx /s/ Xxxxxxxx X. Xxxxx
Xxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxx
/s/ J. Xxxxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
J. Xxxxxxxxxxx Xxxxxxx Xxxx X. Xxxxx
Amendment No. 3
to the
Amended and Restated Agreement of Limited Partnership
Federated Core Trust II, L.P.
a Delaware Limited Partnership
This Agreement of Limited Partnership is amended as follows, effective
October 17, 2003:
B. Strike subsection y, Series, of Section 3, Definitions, of
Article I Names and Definitions, and substitute in its place the
follows:
(y) "Series" shall refer to the Emerging Markets Fixed Income Core
Fund (formerly known as International High Income Core Fund), Mortgage
Core Fund and Capital Appreciation Core Fund (formerly known as Large
Cap Equity Core Fund) and to each series of Interests established and
designated in the future under or in accordance with the provisions of
Article III and shall mean an entity such as that described in Section
18(f)(2) of the 1940 Act, and subject to Rule 18f-2 thereunder.
IN WITNESS WHEREOF, the parties named below have executed this
Partnership Agreement as of the 17th day of October, 2003.
Federated Private Asset
Management, Inc., as General
Partner
By: /s/ Xxxx X. XxXxxxxxx
Name: Xxxx X. XxXxxxxxx
Title: Executive Vice
President
DIRECTORS of the Partnership, solely in their capacity as such
and not as partners:
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxxxx X. Xxxxx, M.D.
Xxxx X. Xxxxxxx Xxxxxxxx X. Xxxxx, M.D.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx, Xx. /s/ Xxxxxxx X. Xxxxxxxxx, Xx.
Xxxx X. Xxxxxx, Xx. Xxxxxxx X. Xxxxxxxxx, Xx.
/s/ Xxxxxxxx X. Xxxxxxxxxxxx /s/ Xxxx X. Xxxxxx, Xx.
Xxxxxxxx X. Xxxxxxxxxxxx Xxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxxxxx
Xxxx X. Xxxxxxxxxx Xxxxxxxx X. Xxxxx
/s/ J. Xxxxxxxxxxx Xxxxxxx /s/ Xxxx X. Xxxxx
J. Xxxxxxxxxxx Xxxxxxx Xxxx X. Xxxxx
