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APPENDIX D(1)
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF [FUND NAME], L.P.
Dated as of ___________, Table of ContentsThis AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP of [FUND NAME], L.P., is made as of the day of
___________, ____, by and among [GP of Fund] L.L.C., a [Delaware]
limited liability company, as General Partner, the persons and/or entities
listed from time to time in Part II of Schedule A of this Agreement, as
Limited Partners (the "Limited Partners"), and,[name of initial LP in the
initial agreement of limited partnership], as the Withdrawing Limited Partner
(the "Withdrawing Limited Partner").
R E C I T A L S
WHEREAS, the Partnership was formed pursuant to a Certificate of
Limited Partnership, dated as of _________, ____, which was executed by
the General Partner and filed for recordation in the office of the Secretary of
State of the State of [Delaware] on __________, ___ and a Limited
Partnership Agreement dated as of ___________, ___ between the General
Partner and the Withdrawing Limited Partner; and
WHEREAS, the parties desire to enter into this Amended and
Restated Agreement of Limited Partnership of the Partnership to permit the
withdrawal of the Withdrawing Limited Partner and the admission of the
parties listed on Part II of Schedule A as limited partners of the Partnership
and further to make the modifications set out in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
agreements herein made and intending to be legally bound hereby, the parties
agree to amend and restate the Limited Partnership Agreement of the
Partnership in its entirety to read as follows:
1. DEFINITIONS; INTERPRETATION.
1.1. Definitions.
As used herein the following terms shall have the following
respective meanings:
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Additional Limited Partner-as defined in section 4.5.
Adjusted Rate-a rate of interest equal to the aggregate of the Prime
Rate and two percent (2.0%) per annum.
Advisers Act-the Investment Advisers Act of 1940, as the same may
be hereafter amended from time to time.
Advisory Board-as defined in section 7.11.
Affiliate-with reference to any Person, any other Person of which
such Person is a member, director, officer, manager, general partner or
employee, any other Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such Person and, in the case
of an individual, a spouse or a blood relative of such Person (or spouse)
within the second degree.
Agreement-this Amended and Restated Agreement of Limited
Partnership, as amended from time to time as provided herein.
Applicable Law-shall mean any applicable law, regulation, ruling,
order or directive, or license, permit or other similar approval of any
Governmental Authority, now or hereafter in effect, to which a Limited
Partner (or any of its Affiliates) is or may be subject.
Assignment-as defined in section 10.1.
Assumed Income Tax Rate-the highest effective marginal combined
federal, state and local income tax rate for a fiscal year prescribed for any
individual resident in [New York City] (taking into account the character of
income and the deductibility of state and local income taxes for federal
income tax purposes and the rates applicable to income of the relevant
character).
Authorized Representative-as defined in section 15.16.
Bankruptcy Code-Title 11 of the United States Code entitled
"Bankruptcy," as the same may be hereafter amended from time to time, and
any successor statute or statutes thereto.
BHC Partner -- any Limited Partner that is a "bank holding company" or a
non-bank "subsidiary" thereof as defined in Section 225.2. of the regulations
of the Federal Reserve System or any successor regulations.
Book Value-with respect to any Partnership asset, the asset's adjusted
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basis for federal income tax purposes, except that the Book Values of all
Partnership assets shall be adjusted to equal their respective Fair Market
Values, in accordance with the rules set forth in Section 1.704-1(b)(2)(iv)(f)
of the Treasury Regulations, except as otherwise provided herein,
immediately prior to: (a) the date of the acquisition of any additional Interest
by any new or existing Partner in exchange for more than a de minimis
Capital Contribution; (b) the date of the actual distribution of more than a de
minimis amount of Partnership property (other than a pro rata distribution) to
a Partner; or (c) the date of the actual liquidation of the Partnership within
the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations;
provided that adjustments pursuant to clauses (a) and (b) above shall be made
only if the General Partner determines in its sole discretion that such
adjustments are necessary or appropriate to reflect the relative economic
interests of the Partners. The Book Value of any Partnership asset distributed
to any Partner shall be adjusted immediately prior to such distribution to
equal its Fair Market Value. The Book Value of any Partnership asset shall
be adjusted to reflect any write-down which constitutes a Disposition.Business Day-any day excluding a Saturday, a Sunday and any other
day on which banks are required or authorized to close in [New York].
Capital Account-as defined in section 5.1.
Capital Commitment-the amount set forth opposite such Partner's
name on Schedule A hereto, as adjusted from time to time pursuant to section 4.5.
Capital Contribution-a contribution to the capital of the Partnership
made pursuant to section 4.
Closing-with respect to any Limited Partner, the sale to and the
subscription for and purchase by, such Limited Partner of its Interest and its
admission as a Limited Partner, pursuant to its Subscription Agreement.
Code-the Internal Revenue Code of 1986, as the same may be
hereafter amended from time to time.
Commitment Period-the period beginning on the date of the Initial
Closing and terminating upon the earliest to occur of (a) __________,
_______, (b) the date on which the aggregate Remaining Capital
Commitments of all Limited Partners have been contributed for the
Partnership for the purpose of making Portfolio Investments or paying
Partnership Expenses or have been formally reserved for such purposes or
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are otherwise unavailable to be so invested, and (c) the date of an Event of
Termination.
Communications Act-the Communications Act of 1934, as amended.Competitive Fund-as defined in section 7.7(c).
Confidential Matter-as defined in section 15.16.
Damages-any and all damages, disbursements, suits, claims,
liabilities, obligations, judgments, fines, penalties, charges, amounts paid in
settlement, expenses, costs and expenses (including, without limitation,
attorneys' fees and expenses) arising out of or related to litigation and interest
on any of the foregoing.
Defaulting Limited Partner-a Limited Partner with respect to which
an Event of Default has occurred.
Default Rate-the lesser of (a) the aggregate of the Adjusted Rate and
four percent (4%) per annum and (b) the maximum rate permitted by law.
Disabling Event-as defined in section 13.2(a).
Disposition-the sale, exchange, redemption, assignment, transfer,
repayment, repurchase or other disposition by the Partnership of all or any
portion of a Portfolio Company or Portfolio Investment for cash or for
Marketable Securities which can be distributed to the Partners pursuant to
section 6.2 and shall include the receipt by the Partnership of a liquidating
dividend, distribution upon a sale of all or substantially all of the assets of a
Portfolio Company or other like distribution for cash or for Marketable
Securities of a Portfolio Investment or any portion thereof which can be
distributed to the Partners pursuant to section 6.2 and shall also include a
distribution in kind to the Partners of all or any portion of a Portfolio
Investment as permitted hereby. A Disposition shall be deemed to include a
Security becoming worthless within the meaning of section 165(g) of the
Code or written down [in accordance with GAAP] [to reflect an impairment
in value that in the good faith judgment of the General Partner is permanent]
(to the extent of any such write-down only).
Distributable Cash-the excess of the sum of all cash receipts of all
kinds over cash disbursements (or reserves therefor) for Partnership
Expenses.
DOL-United States Department of Labor.
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DOL Regulations-regulations of the DOL included within 29 CFR section 2510.3-101.Drawdown-as defined in section 4.1(a)(i).
ERISA-the Employee Retirement Income Security Act of 1974, as
the same may be hereafter amended from time to time.
ERISA Opinion-as defined in section 4.1(a)(v)(B).
ERISA Partner-any Limited Partner that is an "employee benefit
plan" within the meaning of section 3(3) of ERISA, a "plan" within the
meaning of section 4975(e)(1) of the Code or a "benefit plan investor" within
the meaning of 29 C.F.R. 2510.3-101 or any insurance company investing
the assets of its general account which may be deemed to include "plan
assets" under the United States Supreme Court's decision in John Hancock
Mutual Life Insurance Company v. Harris Trust and Savings Bank.
Event of Default-one of the events described in section 4.4(a).
Event of Termination-as defined in section 12.1.
Exchange Act-the Securities Exchange Act of 1934, as the same may
be hereafter amended from time to time.
Fair Market Value-(a) as to any Securities which are listed or
admitted to trading on any national securities exchange on any trading day,
the amount equal to (i) the last sale price of such Securities, regular way, on
such date or, if no such sale takes place on such date, the average of the
closing bid and asked prices thereof on such date, in each case as officially
reported on the principal national securities exchange on which such
Securities are then listed or admitted to trading, or (ii) if such Securities are
not then listed or admitted to trading on any national securities exchange but
are reported through the automated quotation system of a registered
securities association, the last trading price of such Securities on such date,
or if there shall have been no trading on such date, the average of the closing
bid and asked prices of such Securities on such date as shown by such
automated quotation system, and (b) as to any other property on any date, the
fair market value of such property on such date as determined in good faith
by the General Partner in accordance with valuation procedures approved by
the Advisory Board, provided that if a Majority in Interest so requests in
writing, the fair market value of such property shall be determined by an
independent, nationally recognized investment banking firm, accounting firm
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or an appraisal firm selected by the General Partner.
FCC-the Federal Communications Commission.
Final Closing-the Initial Closing or, if any Subsequent Closing occurs, the
last Subsequent Closing.Full Investment-as defined in section 7.7(c).
Funding Notice-as defined in section 4.1(a)(i).
GAAP-generally accepted accounting principles in the United States
of America.
General Partner-the person identified as the General Partner in the
introduction to this Agreement and its replacement or successor from time to
time as permitted by this Agreement.
Governmental Authority-any nation or government, any state or
other political subdivision thereof and any other Person exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to
government.
Hot Issue-the meaning assigned to such term in the Interpretation of the
Board of Governors of the NASD, entitled "Free Riding and Withholding,"
as the same may be amended, supplemented or interpreted in writing by the
NASD from time to time (the "NASD Inerpretation"), pursuant to IM-2110-1
of the NASD Conduct Rules.
Hot Issue Account-as defined in section 4.8.
Initial Closing-the first Closing under which Limited Partners have
acquired Interests pursuant to the Subscription Agreements.
Interest-the entire limited partnership interest owned by a Limited
Partner in the Partnership at any particular time, including the right of such
Limited Partner to any and all benefits to which a Limited Partner may be
entitled as provided in this Agreement, together with the obligations of such
Limited Partner to comply with all the terms and provisions of this
Agreement.
Internal Revenue Service-the Internal Revenue Service or its
successor.
Investment Company Act-the Investment Company Act of 1940, as
the same may be hereafter amended from time to time.
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Investment Guidelines-the investment objectives and policies of the
Partnership set forth on Schedule B.
Investment Term-as defined in section 2.1.
Limited Partners-as defined in the introduction to this Agreement.
Liquidation Representative-as defined in section 12.2.
Majority in Interest-Limited Partners (other than Defaulting Limited
Partners [and Limited Partners who are Affiliates of the General Partner or
any partner of the General Partner]) with more than one-half of the aggregate
Voting Interests of all Limited Partners (other than Defaulting Limited
Partners).
Management Agreement-as defined in section 7.1(b).
Management Fees-as defined in section 7.1(c).
Manager-as defined in section 7.1(b).
Marketable Security-any Security that is (a) listed on one or more
national securities exchanges on such date, (b) designated as a National
Market System Security under Rule 11Aa2-1 of the Exchange Act and traded
on the NASDAQ on such date, or (c) with respect to which the last "bid" and
"ask" prices on such date are reported by the NASDAQ or are reported in the
"pink sheets" published by the National Daily Quotation Service.
Material Adverse Effect-(a) a violation of a statute, rule or regulation
of any Governmental Authority that is reasonably likely to have a material
adverse effect on a Portfolio Company, a potential Portfolio Company, any
Person in which the Partnership has a direct or indirect interest on, the
Partnership, the General Partner, any Partner or any of their respective
Affiliates or on any Partner or any Affiliate of any such Partner or, with
respect to an ERISA Partner, on the sponsor of such ERISA Partner or any
such sponsor's Affiliates, (b) an occurrence that is reasonably likely to
subject a Portfolio Company, a potential Portfolio Company, any Person in
which the Partnership has a direct or indirect interest, the Partnership, the
General Partner, any Partner or any of their respective Affiliates or, with
respect to an ERISA Partner, on the sponsor of such ERISA Partner or any
such sponsor's Affiliates to any material regulatory requirement to which it
would not otherwise be subject, or which is reasonably likely to materially
increase any such regulatory requirement beyond what it would otherwise
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have been, (c) an occurrence that is reasonably likely to subject any Partner
to any tax under Section 897 of the Code, (d) an occurrence that is
reasonably likely to cause the Partnership to be taxed as a corporation or (e)
an occurrence that is reasonably likely to result in any Securities or other
assets owned by the Partnership being deemed to be "plan assets" under
ERISA or that is reasonably likely to result in a "prohibited transaction"
under ERISA.Net Income and Net Loss-for each fiscal year or other period, the
taxable income or loss of the Partnership, or particular items thereof,
determined in accordance with the accounting method used by the
Partnership for federal income tax purposes with the following adjustments:
(a) all items of income, gain, loss, deduction or expense specially allocated
pursuant to this Agreement (including section 5.2) shall not be taken into
account in computing such taxable income or loss; (b) any income of the
Partnership that is exempt from federal income taxation and not otherwise
taken into account in computing Net Income and Net Loss shall be added to
such taxable income or loss; (c) if the Book Value of any asset differs from
its adjusted tax basis for federal income tax purposes, any gain or loss
resulting from a disposition of such asset shall be calculated with reference to
such Book Value; (d) upon an adjustment to the Book Value of any asset
pursuant to the definition of Book Value, the amount of the adjustment shall
be included as gain or loss in computing such taxable income or loss; (e) if
the Book Value of any asset differs from its adjusted tax basis for federal
income tax purposes the amount of depreciation, amortization or cost
recovery deductions with respect to such asset for purposes of determining
Net Income and Net Loss shall be an amount which bears the same ratio to
such Book Value as the federal income tax depreciation, amortization or
other cost recovery deductions bears to such adjusted tax basis (provided that
if the federal income tax depreciation, amortization or other cost recovery
deduction is zero, the General Partner may use any reasonable method for
purposes of determining depreciation, amortization or other cost recovery
deductions in calculating Net Income and Net Loss); and (f) except for items
in (a) above, any expenditures of the Partnership not deductible in computing
taxable income or loss, not properly capitalizable and not otherwise taken
into account in computing Net Income and Net Loss pursuant to this
definition, shall be treated as deductible items.
Non-Plan Party-as defined in section 10.3(a)(iii).
Offering Memorandum-the Private Placement Memorandum
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distributed to each Limited Partner in connection with the offering of the
Interests as amended, supplemented or modified.Organizational Expenses-all costs and expenses of the Partnership
relating to the organization of the Partnership and the offer and sale of
Interests.
Parallel Funds-as defined in section 7.7.
Partners-the Limited Partners and the General Partner and such
substituted or additional Partners as shall be admitted to the Partnership
pursuant to section 4.5, 10 or 13.
Partnership-as defined in the introduction to this Agreement.
Partnership Act-as defined in section 2.1.
Partnership Expenses-as defined in section 8.1.
Percentage Interest-with respect to any Partner and any Portfolio
Investment, the ratio of such Partner's Capital Contribution to that Portfolio
Investment to the total Capital Contributions of all Partners to that Portfolio
Investment, as adjusted from time to time pursuant to sections 4.5 and
10.3(c).
Permitted Parallel Vehicles-as defined in section 7.7.
Permitted Temporary Investments-investments by the Partnership in
(a) Securities that are obligations of or guaranteed by the U.S. government or
an instrumentality thereof; (b) domestic, corporate or governmental
indebtedness rated Aa or Prime-1 (or the equivalent thereof) or better by
Moody's Investors Service Inc. or A-1 (or its equivalent) or better by
Standard & Poor's Corporation; (c) certificates of deposit, money market
accounts, savings accounts, checking accounts or any combination thereof in
banks which have total assets of $100,000,000 or more (or in banks insured
by the Federal Deposit Insurance Corporation (the "FDIC") which have total
assets of less than $100,000,000 if the amount of the Partnership's funds
deposited in such bank is fully insured by the FDIC); or (d) any other
Securities that the General Partner determines are appropriate for short term
investments.
Person-an individual, partnership, corporation, limited liability
company, joint venture, business trust or unincorporated organization,
Governmental Authority or any other entity.
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Portfolio Company-a Person whose Securities have been acquired,
directly or indirectly, in whole or in part, by the Partnership, other than
through a Permitted Temporary Investment.
Portfolio Investment-an investment in Securities (other than
Permitted Temporary Investments) which have been acquired, directly or
indirectly, in whole or in part, by the Partnership or Securities issued to the
Partnership, directly or indirectly, as a dividend on, or in reclassification or
exchange of, other Securities held by the Partnership.
Pre-Existing Funds-as defined in section 7.7.
Prime Rate-the rate of interest per annum publicly announced from
time to time by [insert name of bank] (or any successor thereto) as its prime
or base rate in effect at its principal office in [New York City]. The Prime
Rate is not intended to be the lowest rate of interest charged by such bank in
connection with extensions of credit to debtors.
Realized Investment-any Portfolio Investment (or any portion
thereof) which has been the subject of a Disposition, in any such case to the
extent so subject.
Regulation Y -- Regulation Y of the Board of Governors of the Federal
Reserve System (C.F.R. Part 225) or any successor to such Regulation.
Related Person --as defined in section 3.2.
Remaining Capital Commitment-as to any Partner on any date, an
amount equal to the positive excess, if any, of (a) such Partner's Capital
Commitment, over (b) the aggregate amount of all Capital Contributions
made by such Partner to the Partnership in accordance with the provisions of
section 4 (other than Capital Contributions used to pay Organizational
Expenses), as adjusted from time to time pursuant to sections 4.5 and 10.3(c).
[In the event capital is distributed to any Partner pursuant to section 6 within
eighteen (18) months of the date such capital was contributed to the
Partnership, such capital shall be deemed not to have been contributed to the
Partnership for purposes of clause (b) above and may be required to be
recontributed to the Partnership subject to the other provisions of this
Agreement.]
Remaining Commitment Fraction-as to any Partner at any time, a
fraction, the numerator of which is such Partner's Remaining Capital
Commitment and the denominator of which is the aggregate Remaining
Capital Commitments of all of the Partners.
Restricted Person-a Person to whom a member (or a Person associated with a
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member) of the NASD is prohibited from selling Hot Issues.Schedule K-1-Internal Revenue Schedule K-1.
Securities-any (a) privately or publicly issued capital stock, bonds,
notes, debentures, commercial paper, bank acceptances, trade acceptances,
trust receipts and other obligations, choses in action, partnership or limited
liability company interests, instruments or evidences of indebtedness
commonly referred to as securities, warrants, options, including puts and
calls or any combination thereof and the writing of such options, and (b)
claims or other causes of action, matured or unmatured, contingent or
otherwise, of creditors and/or equity holders of any Person against such
Person, including, without limitation, "claims" and "interests", in each case
as defined under the Bankruptcy Code, and all rights and options relating to
the foregoing.
Securities Act-the Securities Act of 1933, as the same may be
hereafter amended from time to time.
Significant ERISA Participation-as defined in Section 4.1(a)(v).
Subscription Agreement-as to any Limited Partner, the subscription
agreement between such Partner and the Partnership in connection with its
purchase of Interests.
Subsequent Closing-any Closing which occurs subsequent to the
Initial Closing.
Substitute Limited Partner-a Limited Partner who is admitted as a
Substitute Limited Partner in accordance with the provisions of section 10.1.
Successor General Partner-any Person admitted to the Partnership as
a successor general partner pursuant to section 10.2 or 13.2.
Tax Exempt Limited Partners-any Limited Partner which is exempt
from federal income taxation, including a Limited Partner which is exempt
under Section 501 of the Code.
Tax Matters Partner-as defined in section 7.6.
Treasury Regulations-the Income Tax Regulations promulgated
under the Code, as the same may be hereafter amended from time to time.
UBTI-items of gross income taken into account for purposes of
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calculating unrelated business taxable income as defined in Section 512 and
Section 514 of the Code.
Unrestricted Limited Partner-any Limited Partner that is not a Restricted
Person.U.S. Dollars and $-lawful money of the United States of America.
VCOC-as defined in section 7.10(b).
Voting Interests-for the purpose of any vote or consent right
hereunder, at any time (a) prior to the first investment by the Partnership in a
Portfolio Investment, the interest of each Limited Partner as determined by
reference to the amount of such Limited Partner's Capital Commitment, and
(b) after the first investment by the Partnership in a Portfolio Investment, the
interest of each Limited Partner as determined by reference to the aggregate
amount of such Limited Partner's Capital Contributions.
Withdrawing General Partner-as defined in section 13.2(a).
Withdrawing Limited Partner-as defined in the introduction to this
Agreement.
1.2. Accounting Terms and Determinations.
All accounting terms used in this Agreement and not otherwise
defined shall have the meaning accorded to them in accordance with GAAP
and, except as expressly provided herein, all accounting determinations shall
be made in accordance with GAAP, consistently applied.
1.3. Interpretation.
(a) Schedules, Exhibits, Sections. References to a "Schedule" or an
"Exhibit" are, unless otherwise specified, to a Schedule or an Exhibit
attached to this Agreement and references to a "section" or a "subsection"
are, unless otherwise specified, to a section or a subsection of this
Agreement.
(b) Plural. Wherever from the context it appears appropriate, each
term stated in either the singular or the plural shall include the singular and
the plural, and pronouns stated in the masculine, the feminine or neuter
gender shall include the masculine, the feminine and the neuter.
(c) Captions. Captions contained in this Agreement are inserted only
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as a matter of convenience and in no way define, limit or extend or otherwise
affect the scope or intent of this Agreement or any provision hereof. 1.4. General Partner's Standard of Care.
Whenever in this Agreement the General Partner is permitted or
required to make a decision (a) in its "discretion" or under a grant of similar
authority or latitude, the General Partner shall be entitled to consider such
interests and factors as it desires, including its own interests, and shall have
no duty or obligation to give any consideration to any interest of or factors
affecting the Partnership or any other Person, or (b) in its "good faith" or
under another express standard, the General Partner shall act under such
express standard and shall not be subject to any other or different standard
imposed by this Agreement or other applicable law.
2. ORGANIZATION.
2.1. Continuation of Limited Partnership; Term.
The parties to this Agreement hereby agree to continue a limited
partnership pursuant to the provisions of the [Delaware Revised Uniform
Limited Partnership Act (6 Del. C. § 17-101 et seq.)], as amended from time
to time (the "Partnership Act"), and in accordance with the further terms and
provisions of this Agreement. This Agreement amends and restates the
Limited Partnership Agreement dated as of __________, ____ between the
General Partner and the Withdrawing Limited Partner in its entirety.
The term of the Partnership commenced on the date the Certificate of
Limited Partnership of the Partnership was filed with the Secretary of State
of the State of [Delaware] and shall continue, unless the Partnership is sooner
dissolved pursuant to section 12, until the tenth anniversary of the Final
Closing, __________, ________ provided that the term of the Partnership
may be extended by the General Partner for the purpose of facilitating the
orderly liquidation of the Partnership, [with the consent of the Advisory
Board or a Majority in Interest,] for up to two successive periods of one year
(such term, as so extended, being referred to as the "Investment Term"), and
provided, further, that the term of the Partnership shall continue to the second
anniversary of the last day of the Investment Term solely for purposes of
section 11.3.
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2.2. Name.
The name of the Partnership shall be "[Fund Name], L.P." or such
other name or names as may be selected by the General Partner in its
discretion from time to time, and its business shall be carried on in such
name with such variations and changes as the General Partner deems
necessary to comply with requirements of the jurisdictions in which the
Partnership's operations are conducted. The General Partner shall give the
Limited Partners prompt written notice of any change in the name of the
Partnership.
2.3. Purpose.
The Partnership is organized primarily for the object and purpose of
(a) acquiring, directly or indirectly, holding for investment, converting and
distributing or otherwise disposing of Securities and (b) engaging in such
additional acts and activities and conducting such other businesses related or
incidental to the foregoing as the General Partner shall in good faith deem
necessary or advisable.
2.4. Places of Business.
The Partnership shall have its principal place of business at [Fill in
Address of Fund], or at such other place or places as the General Partner
may, in its discretion, from time to time, select. The Partnership may from
time to time have such other place or places of business in such other
jurisdictions as the General Partner may in its discretion deem advisable.
2.5. Registered Office and Agent.
The address of the Partnership's registered office in the State of
[Delaware] is [1013 Centre Road, Wilmington, Delaware 19805]. The name
of the registered agent at the address is [Corporation Service Company].
2.6. Fiscal Year.
The fiscal year of the Partnership shall end on the 31st day of
December in each year. The General Partner shall have the authority to
change the ending date of the fiscal year to any other date required or
allowed under the Code if the General Partner, in its discretion, shall
determine such change to be necessary or appropriate. The General Partner
shall promptly give notice of any such change to the Limited Partners.
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2.7. Powers.
Subject to the provisions of sections 7 and 14, the Partnership, and
the General Partner acting on behalf of the Partnership, shall be empowered
to do or cause to be done, or not to do, any and all acts deemed by the
General Partner in its discretion to be necessary or appropriate in furtherance
of the purposes of the Partnership including, without limitation, the power
and authority to:
(a) invest and dispose of investments as set forth in section 7.2;
(b) open, have, maintain and close bank and brokerage
accounts, including the power to draw checks or other orders for the payment
of moneys;
(c) bring and defend actions and proceedings at law or in
equity or before any governmental, administrative or other regulatory
agency, body or commission;
(d) hire consultants, custodians, attorneys, accountants and
such other agents and employees of the Partnership as it may deem necessary
or advisable, and to authorize each such agent and employee to act for and on
behalf of the Partnership;
(e) cause the Partnership to enter into and carry out the terms
of the Subscription Agreements without any further act, approval or vote of
any Partner (including any agreements to induce any Person to purchase an
Interest);
(f) cause the Partnership to enter into and carry out the terms
of the Management Agreement without any further act, approval or vote of
any Partner;
(g) make all elections, investigations, evaluations and
decisions, binding the Partnership thereby, that may, in the sole judgment of
the General Partner be necessary or appropriate for the acquisition, holding
or disposition of Securities for the Partnership;
(h) organize or cause to be organized one or more
Alternative Investment Vehicles.
(i) enter into, perform and carry out contracts and
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agreements of every kind necessary or incidental to the offer and sale of
Interests or to the accomplishment of the Partnership's purposes, and to take
or omit to take such other action in connection with such offer and sale or
with the business of the Partnership as may be necessary or desirable to
further the purposes of the Partnership; and(j) carry on any other activities necessary to, in connection
with, or incidental to any of the foregoing or the Partnership's business.
2.8. Certificates and Other Filings. (a) Authority. The General Partner is hereby authorized to
execute, acknowledge, file and cause to be published, as appropriate, all
instruments, certificates, notices and documents, and to do or cause to be
done all such filing, recording, publishing and other acts as may be deemed
by the General Partner in its discretion to be necessary or appropriate from
time to time to comply with all applicable requirements for the operation or,
when appropriate, termination of a limited partnership in the State of
[Delaware] and all other jurisdictions where the Partnership does or shall
desire to conduct its business.
(b) Further Assurances. If requested by the General Partner,
the Limited Partners shall immediately execute all certificates and other
documents consistent with the terms of this Agreement necessary for the
General Partner to accomplish all filing, recording, publishing and other acts
as may be appropriate to comply with all requirements for: (i) the operation
of a limited partnership under the laws of the State of [Delaware]; (ii) if the
General Partner deems it advisable, the operation of the Partnership as a
limited partnership, or a partnership in which the Limited Partners have
limited liability, in all jurisdictions where the Partnership proposes to
operate; and (iii) all other filings required to be made by the Partnership.
3. PARTNERS.
3.1. General and Limited Partners.
The Partnership shall consist of the General Partner, the Limited
Partners listed from time to time in Part II of Schedule A hereto, and such
additional and substituted Partners as may be admitted to the Partnership
pursuant to sections 5, 10 or 13. The General Partner shall cause Schedule A
to be amended from time to time to reflect the admission of any Partner, the
removal or withdrawal of any Partner for any reason or the receipt by the
Partnership of notice of any change of name of a Partner.
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3.2. Liability of General Partner. (a) General. None of the General Partner, the Manager, any
of their respective Affiliates (other than a Portfolio Company or any other
Person in which the Partnership has a direct or indirect interest), any officer,
director, stockholder, member, partner, employee, agent or assign of the
General Partner, the Manager or any of their respective Affiliates (other than
a Portfolio Company or any other Person in which the Partnership has a
direct or indirect interest), any member of the Advisory Board, any Person
serving, directly or indirectly, as an officer, director, stockholder, member,
partner, employee, agent or assign of any Portfolio Company at the request
of the General Partner or any Person who was, at the time of the act or
omission in question, such a Person (collectively, the "Related Persons"),
shall be liable, responsible or accountable, whether directly or indirectly, in
contract or tort or otherwise, to the Partnership, any Portfolio Company, any
other Person in which the Partnership has a direct or indirect interest or any
Partner (or any Affiliate thereof) for any Damages asserted against, suffered
or incurred by the Partnership, any Portfolio Company, any other Person in
which the Partnership has a direct or indirect interest or any Partner (or any
of their respective Affiliates) arising out of, relating to or in connection with
any act or failure to act pursuant to this Agreement or otherwise with respect
to:
(i) the management or conduct of the business and
affairs of the Partnership, any Portfolio Company, any other Person in which
the Partnership has a direct or indirect interest or any of their respective
Affiliates (including, without limitation, actions taken or not taken by any
Related Person as a director of any Person in which the Partnership has a
direct or indirect interest or any Affiliates of such Person);
(ii) the offer and sale of interests in the Partnership; and
(iii) the management or conduct of the business and
affairs of any Related Person insofar as such business or affairs relate to the
Partnership, any Portfolio Company, any other Person in which the
Partnership has a direct or indirect interest or to any Partner in its capacity as
such, including, without limitation, all:
(A) activities in the conduct of the business
of the Partnership, any Portfolio Company and any other Person in which the
Partnership has a direct or indirect interest, whether or not the same as any
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specific activities or within any category, class or type of activities disclosed
in the Offering Memorandum, and (B) activities in the conduct of other
business engaged in by it (or them) which might involve a conflict of interest
vis-a-vis the Partnership, any Portfolio Company, any other Person in which
the Partnership has a direct or indirect interest or any Partner (or any of their
respective Affiliates) or in which any Related Person realizes a profit or has
an interest, except, in each case, Damages resulting from acts or omissions of
such Related Person which (X) were taken or omitted in bad faith or
constituted intentional misconduct, a knowing violation of law and, in the
case of any such Related Person other than a member of the Advisory Board,
constituted gross negligence or a material breach of this Agreement.
(b) Conflicts of Interest. For purposes of this Agreement, no
action or failure to act on the part of any Related Person in connection with
the management or conduct of the business and affairs of such Related
Person or any other Related Person and other activities of such Related
Person which involve a conflict of interest with the Partnership, any Portfolio
Company, any other Person in which the Partnership has a direct or indirect
interest or any Partner (or any of their respective Affiliates) or which are
specified in or contemplated by the Offering Memorandum or in which such
Related Person realizes a profit or has an interest shall constitute, per se, bad
faith, gross negligence, intentional misconduct, a material breach of this
Agreement or a knowing violation of law.
(c) Employees and Agents. Notwithstanding the foregoing
provisions of this section 3.2, no Related Person shall be liable to the
Partnership, any Portfolio Company, any other Person in which the
Partnership has a direct or indirect interest or any Partner (or any Affiliate
thereof) for any action taken or omitted to be taken by any other Related
Person.
(d) Reliance on Third Parties. Any Related Person may (in
its own name or in the name of the Partnership) consult with counsel,
accountants and other professional advisors in respect of the affairs of the
Partnership, any Portfolio Company, any other Person in which the
Partnership has a direct or indirect interest and each Related Person shall be
deemed not to have acted in bad faith or with gross negligence or to have
materially breached this Agreement or engaged in intentional misconduct
with respect to any action or failure to act and shall be fully protected and
justified in so acting or failing to act, if such action or failure to act is in
accordance with the advice or opinion of such counsel, accountants or other
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professional advisors, except for actions or failures to act by such Related
Person which constitute a knowing violation of law, provided that such
advisors were selected with reasonable care.(e) Reliance on This Agreement. To the extent that, at law or
in equity, the General Partner has duties (including fiduciary duties) and
liabilities relating thereto to the Partnership or to another Partner, the General
Partner acting under this Agreement shall not be liable to the Partnership or
to any such other Partner for its good faith reliance on the provisions of this
Agreement. The provisions of this Agreement, to the extent that they expand
or restrict the duties and liabilities of the General Partner otherwise existing
at law or in equity, are agreed by the Partners to modify to that extent such
other duties and liabilities of the General Partner.
3.3. Limited Liability of Limited Partners.
The liability of each Limited Partner is limited to its obligation to
make Capital Contributions to the Partnership in amounts from time to time
provided by this Agreement and to make the payments required by this
Agreement and its respective Subscription Agreement, all of which
obligations are, except as otherwise set forth in section 7.1(c), intended to be
enforceable only by the Partnership and the General Partner but not by
creditors of the Partnership, and nothing elsewhere set forth in this
Agreement or in any other document, and nothing arising from any other
transaction whatsoever between or among any or all of the Partners or the
Partnership, shall have the effect of removing, diminishing or otherwise
affecting such limitation.
3.4. Right to Hold Interest as a Non-Voting Interest.
Any BHC Partner may, at any time upon written notice to the
General Partner, elect to hold all or any portion of the Interest held by such
BHC Partner that is determined, either (a) at the time of the admission of
such BHC Partner as a Limited Partner, an Additional Limited Partner or a
Substitute Limited Partner or (b) upon any recalculation of the Voting
Interests of the Partners pursuant to any provision of this Agreement (other
than any such recalculation as a result of a transfer by such BHC Partner of
its Interest), to be in excess of 4.99% of the aggregate Voting Interests of all
Limited Partners, excluding, for purposes of calculating this percentage,
portions of any other Voting Interests that are non-voting interests pursuant
to this section 3.4 (collectively, the "Non-Voting Interests"), as a Non-Voting
Interest. Such Interest will be a Non-Voting Interest whether or not
subsequently transferred in whole or in part to any other Person, except that
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each portion of such Non-Voting Interest that is transferred in one or more
transactions to one Person or related Persons (none of whom may be an
Affiliate of the transferring BHC Partner) and that represents two percent
(2%) or less of the aggregate Voting Interests of the Partnership, will be a
Voting Interest, effective upon such transfer. Notwithstanding any contrary
provision in this section 3.4, such Non-Voting Interest will be permitted to
vote (i) on the amendment, alteration, or repeal of any of the provisions of
this Agreement (or any amendment or supplement hereto) so as to adversely
affect the rights, powers, privileges, or preferences of the Non-Voting
Interests, (ii) on any proposal to continue the business of the Partnership
pursuant to section 13.2(b) but not to appoint a successor general partner
thereunder or (iii) where such voting rights are otherwise specifically
authorized by the Partnership Act (and consistent with this Agreement) with
regard to matters that would significantly and adversely affect the rights,
powers, privileges, or preferences of the Non-Voting Interests. Except as
otherwise provided in this section 3.4, the foregoing election shall be
irrevocable and Non-Voting Interests will not be counted for purposes of
determining whether any vote or consent required hereunder has been
approved or given by the requisite percentage of the Limited Partners.
Notwithstanding any contrary provision in this section 3.4, any BHC Partner
may elect, by providing written notice thereof to the General Partner, not to
be governed by this section 3.4 if, due to a change of law or regulation or the
divestiture or termination of its U.S. banking operations, such Partner ceases
to be a BHC Partner as defined herein or ceases to be subject to restrictions
on the ownership of voting interests, in which case no part of the Interest
held by such electing BHC Partner will be a Non-Voting Interest. Any such
election made by a BHC Partner may be rescinded at any time by the
provision of further written notice thereof to the General Partner, and any
such rescission will be irrevocable for the entire term of the Partnership.
Except as provided in this section 3.4, an Interest which is held as a Non-
Voting Interest will be identical in all regards to all other Interests held by
Limited Partners.3.5. No Priority, Etc.
No Limited Partner shall have priority over any other Limited
Partner either as to the return of the amount of its Capital Contribution to the
Partnership or, other than as provided in section 5, as to any allocation of Net
Income and Net Loss.
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3.6. Partnership Property; Partnership Interest.
No real or other property of the Partnership shall be deemed to be
owned by any Partner individually, but shall be owned by and title shall be
vested solely in the Partnership. The Interests of the Partners shall constitute
personal property.
3.7. Withdrawing Limited Partner.
The execution of this Agreement by the Withdrawing Limited
Partner constitutes his withdrawal as a limited partner of the Partnership.
With effect from the time of execution of this Agreement, the Withdrawing
Limited Partner has no further right, interest or obligation of any kind
whatsoever as a limited partner of the Partnership. An amount equal to the
balance of the Capital Account of the Withdrawing Limited Partner shall be
distributed to such Withdrawing Limited Partner on the date of this
Agreement.
4. CAPITAL CONTRIBUTIONS, CAPITAL COMMITMENTS.
4.1. Capital Contributions. (a) Limited Partners' Contribution. Subject to the provisions
of section 4.3, each Limited Partner agrees to make Capital Contributions to
the Partnership at any time or from time to time for the purpose of satisfying
Organizational Expenses to the extent provided herein or Partnership
Expenses or, during the Commitment Period, for the purpose of making a
Portfolio Investment up to the amount of its Remaining Capital Commitment.
Notwithstanding the foregoing, each Limited Partner agrees to make Capital
Contributions to the Partnership subsequent to the Commitment Period for
the purpose of making Portfolio Investments in (x) one or more existing
Portfolio Companies in an aggregate amount not to exceed the lesser of its
Remaining Capital Commitment and [ten percent (10%)] of its original
Capital Commitment or (y) in respect of investments which were committed
to in writing prior to the termination at the Commitment Period. Such Capital
Contributions shall be made in the amounts and in the manner set forth
below:
(i) the General Partner shall deliver to each Limited
Partner a notice (a "Funding Notice") that Capital Contributions are to be
made to the Partnership (a "Drawdown") at least seven (7) days prior to the
date of such Drawdown (except as otherwise provided in sections 4.3 and
4.4), which Funding Notice shall comply with section 4.1(d), provided that
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the General Partner shall provide each Limited Partner with a Funding Notice
in connection with any Drawdown in connection with the Initial Closing and
any Subsequent Closing at least two (2) Business Days prior to the date of
such Closing; (ii) subject to section 4.3 and except as otherwise
provided in section 11.3 with respect to each Limited Partner's
indemnification obligations, each Limited Partner's required Capital
Contribution in respect of a Portfolio Investment or for Partnership Expenses,
as the case may be, shall be equal to the lesser of (A) such Limited Partner's
Remaining Capital Commitment and (B) such Limited Partner's pro rata
share (determined with reference to the sum of the aggregate Capital
Commitments of all Partners) of the aggregate amount required for the
Partnership to make such Portfolio Investment or to pay such Partnership
Expenses, and the Remaining Capital Commitment of each Limited Partner
shall be reduced by the amount of Capital Contributions contributed by such
Limited Partner for Portfolio Investments and for Partnership Expenses,
(other than for Partnership Expenses consisting of Management Fees);
(iii) each Partner's required Capital Contribution in
respect of Organizational Expenses shall be equal to such Partner's pro rata
share (determined with reference to the sum of the aggregate Capital
Commitments of all Partners) of the aggregate amount required for the
Partnership to pay such Organizational Expenses, provided that (A) the
aggregate amount of such Organizational Expenses to be paid by the
Partnership shall not exceed $ _____ and (B) the amount contributed by a
Partner to satisfy Organizational Expenses shall not reduce such Partner's
Remaining Capital Commitment;
(iv) each Limited Partner shall contribute to the
Partnership, in cash or by wire transfer of immediately available funds, in
each case in U.S. Dollars and in the case of a wire transfer, to the bank
account of the Partnership as shall be designated in the Funding Notice for
such Drawdown on or prior to the date of the Drawdown as specified in such
Funding Notice, the U.S. Dollar amount specified for such Limited Partner in
such Funding Notice; and
(v) if, in the opinion of the General Partner, the
aggregate Capital Commitments or aggregate Capital Contributions (or the
value of any other Interests) of ERISA Partners equal or exceed or would,
after giving effect to the admission of any ERISA Partner(s), equal or exceed
twenty-five percent (25%) of the aggregate Capital Commitments or
aggregate Capital Contributions (or other Interests), as applicable, of all
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Partners (disregarding for this purpose the Capital Commitments or Capital
Contributions (or other Interests) of any Partner, other than an ERISA
Partner, who (x) had discretionary authority or control with respect to the
assets of the Partnership or (y) provides investment advice for a fee (direct or
indirect) with respect to such assets, or any Affiliate of such Partner)
("Significant ERISA Participation"), then prior to the date the Partnership
qualifies as a VCOC (or otherwise complies with such other exception as
may be available under such regulations to prevent the assets of the
Partnership from being treated as the assets of any ERISA Partner for
purposes of the DOL Regulations), the Capital Contributions of each ERISA
Partner who is admitted at or subsequent to the time of Significant ERISA
Participation shall be paid into an escrow account, which account would be
subject to the following terms:(A) During the term of the escrow account,
the Partnership will acquire no more than a contingent interest in property
placed in escrow by the ERISA Partner and the ERISA Partner will acquire
no more than a contingent interest in the Partnership. The escrow agent will
hold the escrow property as agent of both the Partnership and the ERISA
Partner to the extent of their respective interests in the property at any given
time.
(B) Upon receipt by the escrow agent of an
opinion of counsel to the Partnership that, upon the transfer of the escrow
property to the Partnership (which transfer will be scheduled to occur within
60 days of the date of such opinion), the Partnership will fulfill the criteria
necessary to be a VCOC (or otherwise comply with such other exception as
may be available under such regulations to prevent the assets of the
Partnership from being treated as the assets of any ERISA Partner for
purposes of the DOL Regulations) (the "ERISA Opinion"), legal title to the
escrow property will vest in the Partnership and the ERISA Partner's Interest
will become unconditional.
(C) Pending receipt by the escrow agent of
the ERISA Opinion, legal title to the escrow property will remain with the
trustee(s) of the ERISA Partner and the escrow agreement will provide that
the escrow agent is required to pay the ERISA Partner's allocable share of
any Partnership Expenses or Organizational Expenses in the same proportion
and upon the same terms and conditions as each other Limited Partner.
(D) The escrow agreement shall provide that
until receipt by the escrow agent of the ERISA Opinion, (1) the escrow
property will be treated as assets of the ERISA Partner for purposes of Title I
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of ERISA, (2) the escrow agent will be a fiduciary to the ERISA Partner with
respect to such assets for such purpose and (3) such assets will be held in a
manner that is consistent with the general fiduciary provisions of ERISA,
including the prudence rule of Section 404(a)(1)(B) of ERISA.(E) The escrow agreement will provide that
the property held in escrow will be returned to the ERISA Partner if the
escrow agent does not receive the ERISA Opinion within eighteen months of
the first Funding Notice issued to the ERISA Partner.
(b) General Partner's Contributions. In the event of a
Drawdown, the General Partner shall make Capital Contributions to the
Partnership in connection with such Drawdown in an amount equal to its pro
rata share of the aggregate Capital Contributions to be made by all Partners
(including the General Partner). Capital Contributions by the General Partner
shall be made to the Partnership on or prior to the date of the applicable
Drawdown, in cash or by wire transfer of other immediately available funds,
in each case in U.S. Dollars.
(c) Cancellation of Notices. If the General Partner in its
discretion deems it advisable, it may proportionately reduce the amount of or
cancel any call for Capital Contributions by giving notice to each Partner. No
amount not contributed to the Partnership by reason thereof shall reduce any
Partner's Remaining Capital Commitment.
(d) Funding Notices. All Funding Notices shall contain
statements which specify or describe:
(i) the U.S. Dollar amount of such Limited Partner's
proportionate share of such Drawdown, which shall be calculated in the
manner described in Section 4.1(a);
(ii) the date of such Drawdown;
(iii) the bank account of the Partnership to which
such Drawdown is to be paid;
(iv) the purpose of such Drawdown; and
(v) if the purpose of such Drawdown is to make a
Portfolio Investment, the identity, nature and business of the Portfolio
Company, except that the General Partner may exclude the specific identity
thereof (but not the description of the nature and business of the Portfolio
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Company) if the General Partner determines in good faith that notifying the
Limited Partners of such identity would risk jeopardizing such investment or
would otherwise be inappropriate.(e) Expiration of Commitment Period. At the end of the
Commitment Period, each Limited Partner will be released from any further
obligation to make Capital Contributions other than Capital Contributions to
satisfy Partnership Expenses or to fund any Portfolio Investment
contemplated by the second sentence of section 4.1(a).
4.2. Return of Unutilized Contributions. (a) Returns by General Partner. If the General Partner
determines that a proposed Portfolio Investment in respect of which Partners
have made Capital Contributions will not be consummated, the General
Partner shall refund to the Partners that made such Capital Contributions the
amounts of such Capital Contributions. If the General Partner determines that
a proposed Portfolio Investment in respect of which Partners have made
Capital Contributions will not require the full amount of Capital
Contributions made therefor, the General Partner shall refund to the Partners
that made such Capital Contributions, pro rata to the amounts of such Capital
Contributions, the amount of such Capital Contributions which exceeds the
portion required to consummate such Portfolio Investment.
(b) Treatment of Returns or Refunds of Contributions. For
purposes of determining the Remaining Capital Commitment of a Partner
who receives a refund of a Capital Contribution pursuant to section 4.2 or
4.3, the amount refunded shall be treated as never having been contributed to
the Partnership. If during the period between the contribution and a refund of
such amount, the Partners have made Capital Contributions for another
Portfolio Investment or for any other purpose in ratios that were incorrect in
light of the preceding sentence, then the General Partner shall require such
additional Capital Contributions and shall refund such amounts, as are
necessary to adjust the Capital Contributions of Partners for such other
Portfolio Investment to the correct ratio.
4.3. Excuse, Exclusion and Cancellation. (a) Excuse. Notwithstanding any provision of this
Agreement to the contrary, if, within five (5) Business Days after a Limited
Partner has been given a Funding Notice pursuant to section 4.1, such
Limited Partner delivers to the General Partner a written opinion that satisfies
the requirements of the following sentence, then such Limited Partner shall
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be excused from all of its obligations to make a Capital Contribution relating
to the Portfolio Investment specified in the relevant Funding Notice (or that
part of its obligation which would be reasonably likely to cause a violation as
referred to below). The opinion referred to in the preceding sentence shall be
a written opinion of counsel to such Limited Partner (which opinion and
counsel shall be reasonably satisfactory to the General Partner and, in the
case of a Limited Partner which is an institutional investor, may be staff
counsel regularly employed by such institutional investor), that its
participation (or in the case of an excuse from part but not all of its
obligation, the part of its participation in question) in such Portfolio
Investment would be reasonably likely to cause a violation of any law,
regulation or order to which it is subject. A Limited Partner that is excused
from a Portfolio Investment (or a portion thereof) under this section 4.3 shall
have no right to receive any distributions in respect of such Portfolio
Investment (or such portion, as the case may be).(b) Subsequent Capital Call to Non-Excused Partners in the
Event of Excuse. If the opinion referred to in section 4.3(a) is delivered in
connection with the Portfolio Investment which is the subject of a previously
delivered Funding Notice, the General Partner may then deliver an amended
Funding Notice to each Limited Partner which is able to participate in such
Portfolio Investment identifying the additional Capital Contribution to be
made in respect of such Portfolio Investment, whereupon each such Limited
Partner shall make such additional Capital Contribution within five (5)
calendar days after having been given such amended Funded Notice.
Additional Capital Contributions called for pursuant to this section 4.3(b)
shall be made by each such other Limited Partner in an amount which bears
the same ratio to the aggregate additional Capital Contributions of all such
other Limited Partners as such other Limited Partner's Remaining Capital
Commitment bears to the Remaining Capital Commitments of all such other
Limited Partners; provided that no Partner shall be obligated to contribute an
amount in excess of such Limited Partner's Remaining Capital Commitment;
provided, further, that the amount specified in such amended Funding Notice
may not exceed two times the amount specified in the original Funding
Notice in respect of such Portfolio Investment without the consent of such
Limited Partner.
(c) Exclusion. The General Partner may exclude a particular
Limited Partner from participating in all or any part of a Portfolio Investment
if the General Partner determines in good faith that:
(i) a significant delay, extraordinary expense or a
Material Adverse Effect is likely to result from such Limited Partner's
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participation (or in the case of an exclusion from part but not all of its
participation, the part of its participation in question) in such Portfolio
Investment; or(ii) based upon advice of counsel (a copy of which
advice shall be provided to the Limited Partner to be excluded), there is a
reasonable likelihood that such Limited Partner's participation (or in the case
of an exclusion from part but not all of its participation, the part of its
participation in question) in such Portfolio Investment would cause a
violation of any law, regulation or order to which such Limited Partner, the
Partnership or the proposed Portfolio Company is subject.
Such determination shall, if possible, be communicated to such Limited
Partner at or prior to the time that the General Partner delivers Funding
Notices relating to the Capital Contributions in question to the other Limited
Partners, and such Funding Notices shall provide the amount of any
additional capital which such other Limited Partners shall be required to
contribute as a result of the developments set forth above or, if such
determination is not made until after a Funding Notice for such Portfolio
Investment has been delivered to the other Limited Partners (but in any event
within ten (10) calendar days after the consummation of such Portfolio
Investment), the General Partner may then deliver a new Funding Notice to
each other Limited Partner which is able to participate in such Portfolio
Investment indicating the additional Capital Contribution to be made in
respect of such Portfolio Investment, and, subject to the provisos set forth in
this section 4.3(c), each such Limited Partner shall make an additional
Capital Contribution in respect of such Portfolio Investment as soon as
practicable but in no event later than five (5) calendar days after having been
given such new Funding Notice. Additional Capital Contributions called for
pursuant to this section 4.3(c) shall be made by each such other Limited
Partner in an amount which bears the same ratio to the aggregate additional
Capital Contributions of all other Limited Partners as such other Limited
Partner's Remaining Capital Commitment bears to the Remaining Capital
Commitments of all such other Limited Partners; provided that no Limited
Partner shall be obligated to contribute an amount in excess of such Limited
Partner's Remaining Capital Commitment; provided, further, that the amount
specified in such amended Funding Notice may not exceed two times the
amount specified in the original Funding Notice in respect of such Portfolio
Investment without the consent of such Limited Partner.
(d) No Commitment Reduction for Excused Limited Partner.
The Remaining Capital Commitment of any Limited Partner excused or
excluded from participation in a Portfolio Investment pursuant to this section
4.3 shall not be reduced as a result of such excuse or exclusion.
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(e) Cancellation by General Partner. The General Partner at
any time may cancel the obligation of all Partners to make Capital
Contributions for Portfolio Investments if, in the good faith judgment of the
General Partner, changes in applicable law, regulation, case law, judicial or
administrative order or decree or governmental license or permit, or any
interpretation thereof by any Governmental Authority or court of competent
jurisdiction or in business conditions make such cancellation necessary or
advisable in the interests of the Partners.
(f) Successive Operation. If any Limited Partner is not
required to make a Capital Contribution in accordance with paragraphs (b),
(c) or this paragraph (f) of this section 4.3 because such Capital Contribution
would (i) be in excess of such Limited Partner's Remaining Capital
Commitment or (ii) without such Limited Partner's consent, result in such
Limited Partner making a Capital Contribution to a single Portfolio
Investment in an amount in excess of two times the amount specified in the
original Funding Notice, then, the provisions of section 4.3 shall operate
successively until either all Limited Partners able to participate in such
Portfolio Investment are subject to either of the restrictions set forth in
clauses (i) and (ii) above or the full amount of Capital Contributions to be
made by Limited Partners has been provided for.
(g) Alternative Funding. If, after giving effect to this section
4.3, the General Partner determines that it is not possible for the Partnership
to fund the entire Portfolio Investment under consideration, the General
Partner may elect, in its discretion, to fund the unfunded portion with its own
funds or to offer the opportunity to fund such unfunded portion to any other
Person, provided the General Partner has complied at all time
