LIMITED PARTNERSHIP AGREEMENT
AAA eCommerce Fund, L.P.
A _________(state) Limited Partnership
_________,_________,_________(M/D/Y)
EXHIBIT A Partners' Capital Commitments; Partnership Percentages
EXHIBIT B Securities Contributed by AAA
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
AAA Ventures I, LLC, a _________(state) limited liability company (the 'General Partner'), as general partner, and AAA Group, Inc., BBB(sb) and CCC(sb), as limited partners, entered into a Limited Partnership Agreement dated _________,_________,_________(M/D/Y). By their execution of this Agreement, said original Partners hereby amend and restate that Limited Partnership Agreement to read as provided herein.
Each of the individuals, corporations and other entities whose names are set forth under the heading 'Limited Partners' on Exhibit A attached hereto who execute a counterpart of this Agreement, as limited partners (the 'Limited Partners' and, together with the General Partner, the 'Partners') hereby enter into this Amended and Restated Limited Partnership Agreement effective as of _________,_________,_________(M/D/Y);
The Partners, in consideration of their mutual covenants contained herein, agree to carry on a limited partnership pursuant to the terms of this Agreement and the _________(state) Revised Uniform Limited Partnership Act (the '_________(state) Act').
ARTICLE I
NAME, PURPOSE AND PRINCIPAL OFFICE OF PARTNERSHIP; DEFINITIONS
1.1. Partnership Name. The name of the Partnership is 'AAA eCommerce Fund, L.P.' The affairs of the Partnership shall be conducted under such name or such other name as the General Partner may, in its discretion, determine. The General Partner will provide prompt written notice to the Limited Partners of any change in the name of the Partnership. AAA Group, Inc. hereby grants the Partnership, at no cost, the right to use the 'AAA' name for the term of the Partnership.
1.2. Partnership Purpose; Powers.
(a) Purpose. The purpose of the Partnership is to (i) seek capital appreciation through the acquisition, holding, sale, distribution or other disposition of investments in Portfolio Companies and (ii) engage in any other lawful activities determined by the General Partner to be necessary or advisable in connection with the foregoing.
(b) Powers. Subject to all of the terms and provisions hereof, the Partnership shall have all powers necessary, suitable or convenient for the accomplishment of the purposes of the Partnership, including, without limitation, the following:
(1) to purchase, sell, invest and dispose of Securities of every kind, including, without limitation, capital stock, limited partnership interests, bonds, notes, debentures, securities convertible into other securities, trust receipts and other obligations, instruments or evidences of indebtedness, as well as in rights, warrants and options to purchase securities;
(2) to make and perform all contracts and engage in all activities and transactions necessary or advisable to carry out the purposes of the Partnership, including, without limitation, the purchase, sale, transfer, pledge and exercise of all rights, privileges and incidents of ownership or possession with respect to any Partnership asset or liability; and the guarantee of or becoming surety for the debts of others; and
(3) otherwise to have all the powers available to it as a limited partnership under the _________(state) Act.
1.3. Registered Office and Agent. The initial address of the Partnership's registered office in _________(state) is 15 East North Street, Dover, County of Kent, and its initial agent at such address for service of process is Incorporating Services Limited. The General Partner shall provide prompt written notice to the Limited Partners of any change of the Partnership's registered offices.
1.4. Principal Office. The principal office of the Partnership shall initially be located at 4500 Bohannon Drive, Menlo Park, California 94025. The General Partner may change the location of the principal office of the Partnership at any time upon prompt written notice to the Limited Partners indicating the new location of such principal office.
1.5. Definitions. As used in this Agreement, the following terms shall have the following meanings:
Adjusted Capital Balance. As of any date, the balance of the General Partner's Capital Account as of such date computed without regard to any such balance created as a result of any interest as a Limited Partner held by the General Partner.
AfterTax Distribution Amount shall have the meaning set forth in Paragraph 8.2.
Agreement. This Amended and Restated Limited Partnership Agreement of AAA eCommerce Fund, L.P., a _________(state) limited partnership, as it may be amended in accordance with the terms hereof.
Bankruptcy. A person or entity shall be deemed bankrupt if such person:
(1) makes an assignment for the benefit of creditors;
(2) files a voluntary petition in bankruptcy;
(3) is adjudicated as bankrupt or insolvent or has entered against such person an order for relief in any bankruptcy or insolvency proceeding;
(4) files a petition or answer seeking for himself or itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation;
(5) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against him or it in any proceeding of this nature; or
(6) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator or of all or any substantial part of his or its properties.
Book Value. The Book Value with respect to any asset shall be the asset's adjusted basis for federal income tax purposes, except as follows:
(1) The initial Book Value of any property other than money contributed by a Partner to the Partnership shall be the fair market value of such asset at the time of contribution, as determined by the contributing Partner and the Partnership The initial Book Value of the Securities contributed by AAA shall be as set forth on Exhibit B.
(2) In the discretion of the General Partner, the Book Values of all Partnership assets may be adjusted to equal their respective fair market values, as determined by the General Partner consistent with the principles of Paragraph 9.2, and the amount of such adjustment shall be treated as Capital Transaction Gain or Loss and allocated to the Capital Accounts of the Partners pursuant to Paragraph 4.3, as of the following times: (A) the acquisition of an additional interest in the Partnership by any new or existing Partner (other than pursuant to Paragraph 7.6(b)) in exchange for more than a de minimis Capital Contribution; and (B) the distribution by the Partnership to a Partner of more than a de minimis amount of Partnership assets in connection with an adjustment of such Partner's Partnership Percentage.
(3) The Book Values of all Partnership assets shall be adjusted to equal their respective fair market values, as determined by the General Partner consistent with the principles of Paragraph 9.2, and the amount of such adjustment shall be treated as Capital Transaction Gain or Loss and allocated to the Capital Accounts of the Partners pursuant to Paragraph 4.3, as of the following times: (A) the date the Partnership is liquidated within the meaning of Treasury Regulation Section 1.704 1(b)(2)(ii)(g); and (B) the termination of the Partnership pursuant to the provisions of this Agreement.
(4) The Book Values of Partnership assets shall be increased or decreased to the extent required under Treasury Regulation Section 1.7041(b)(2)(iv)(m) in the event that the adjusted tax basis of Partnership assets is adjusted pursuant to Code Section 732, 734 or 743.
(5) The Book Value of a Partnership asset shall be adjusted by the depreciation, amortization or other cost recovery deductions, if any, taken into account by the Partnership with respect to such asset in computing Net Income or Loss.
Capital Commitment shall have the meaning set forth in Paragraph 3.1.
Capital Transaction Gain or Loss. An amount computed for any relevant period, as of the last day thereof, that is equal to the total of (i) the aggregate amount recognized on the Sale or Exchange of Securities or other assets held by the Partnership during such period less the sum of (A) the Book Value of such Securities or other assets as of the date of such Sale or Exchange, plus (B) the Partnership's expenses associated with the Sale or Exchange of such Securities or other assets; (ii) the Partnership's distributive share of income, gain, loss, deduction or credit (or item thereof) derived from its interest in partnerships, limited liability companies and other passthrough entities to the extent such amounts would be Capital Transaction Gain or Loss if realized directly by the Partnership; (iii) dividend income of the Partnership during such period with respect to Securities of Portfolio Companies, whether derived from actual or constructive distributions of cash or property; (iv) interest (and original issue discount) income of the Partnership during such period from Securities of Portfolio Companies; (v) the aggregate adjustment to the Book Value of Partnership assets during such period computed under subparagraphs (2), (3) and (4) of the definition 'Book Value'; and (vi) any other amount specifically designated as Capital Transaction Gain or Loss in this Agreement, including (without limitation) such amounts so designated pursuant to Paragraph 6.4(f).
Capital Contributions means a Partner's capital contributions theretofore made to the Partnership at any point in time. For purposes of Paragraph 6.4(b), the General Partner's Capital Contributions shall include solely its Capital Contributions made with respect to its interest as General Partner.
Certificate of Limited Partnership. The Certificate of Limited Partnership of AAA eCommerce Fund, L.P., a _________(state) limited partnership, filed with the Secretary of State of _________(state), as it may be amended in accordance with the terms hereof.
Code. The Internal Revenue Code of 1986, as amended from time to time (and any corresponding provisions of succeeding law).
Defaulting Partner shall have the meaning set forth in Paragraph 3.5(a)._________(state) Act means the _________(state) Revised Uniform Limited Partnership Act.
Drawdown shall have the meaning set forth in Paragraph 3.2.
Drawdown Date shall have the meaning set forth in Paragraph 3.2.
Drawdown Notice shall have the meaning set forth in Paragraph 3.2.
AAA. AAA Group, Inc. a _________(state) corporation.
Excess Distribution Amount shall have the meaning set forth in Paragraph 8.2.
Excess Negative Balance shall have the meaning set forth in Paragraph 11.2(e).
Fair Value Capital Accounts means the Partners' Capital Accounts computed in accordance with Article IV, but treating each security and each other asset owned by the Partnership as if, on the date as of which such computation is being made, such security or other asset had been sold as its fair market value (determined in accordance with Paragraph 9.2) and any resulting Capital Transaction Gain or Loss had been allocated to the Partners' Capital Accounts in accordance with Article IV.
Fair Value Test means that, with respect to each Limited Partner and any proposed Partnership distribution, the sum of (i) the amount of the cumulative distributions which such Limited Partner has received from the Partnership, plus (ii) the amount of such Limited Partner's Fair Value Capital Account, in each case after giving effect to the proposed distribution, is equal to at least one hundred percent (100%) of such Limited Partner's Capital Contributions.
Final Closing Date shall have the meaning set forth in Paragraph 7.6(b).
Fiscal Quarter. The Fiscal Quarters of the Partnership shall begin on January 1, April 1, July 1, and October 1, and end on March 31, June 30, September 30, and December 31, respectively, except that the Partnership's first Fiscal Quarter shall begin on the date of this Agreement and end on the next regular quarter end.
Fiscal Year. The Partnership's first Fiscal Year shall begin on the date of this Agreement and end on _________,_________,_________(M/D/Y). Thereafter, the Partnership's Fiscal Year shall commence on January 1 of each year and end on December 31 of such year or, if earlier, the date the Partnership terminated during such year. The General Partner at any time may, in its discretion, elect a different Fiscal Year. The General Partner shall provide prompt written notice to the Limited Partners of any such election to change the Fiscal Year.
FollowOn Investment. An investment in the Securities of any existing Portfolio Company in which the Partnership has previously made an investment.
Foreign Entity shall have the meaning set forth in Paragraph 7.2(i).
General Partner. AAA Ventures I, LLC.
General Partner Distributions shall have the meaning set forth in Paragraph 8.2(d).
Insulated Limited Partner shall have the meaning set forth in Paragraph 7.5(b).
Interim Period. If a Partnership interest is transferred, the General Partner converts to a Limited Partner, the Partnership Percentage of any Partner changes, a Partner withdraws or a new Partner is admitted to the Partnership other than on the first day of any Fiscal Year, if the General Partner shall so elect, the date of such event or election shall commence an Interim Period. An Interim Period shall end on the last day of the Fiscal Year in which the Interim Period began or on the day immediately preceding the beginning of a new Interim Period, whichever is earlier.
Investment Period. The period beginning as of the date of this Agreement and ending _________,_________,_________(M/D/Y).
Limited Liability Entity Opinion shall have the meaning set forth in Paragraph 7.2(i).
Limited Partners. Each of the persons listed under the heading 'Limited Partners' on Exhibit A attached hereto and each other person duly admitted to the Partnership as a limited partner subsequent to the date hereof.
Majority in Interest of the Limited Partners. Limited Partners having Capital Contributions the sum of which is at least a majority of the aggregate Capital Contributions of the Partners (excluding, for the purpose of calculating such requisite percentage, the Capital Contributions of the General Partner, including interests held by the General Partner as a Limited Partner).
Management Fee shall have the meaning set forth in Paragraph 5.1.
Marketable Securities. Securities that are (i) actively traded on a national securities exchange or through the National Association of Securities Dealers, Inc. Automated Quotation System and the aggregate total of all such Securities then held by the Partnership would, if distributed in kind to the Limited Partners, be freely transferable pursuant to SEC Rule 144 (without regard to any volume limitations thereunder), an effective registration under the Securities Act or an exemption therefrom, (ii) direct obligations of, or obligations guaranteed as to principal and interest by, the United States, or (iii) certificates of deposit maturing within one (1) year or less issued by an institution insured by the Federal Deposit Insurance Corporation, or similar securities.
Media Company. An entity that, directly or indirectly, owns, controls or operates or has an attributable interest in (i) a U.S. broadcast radio or television station or a U.S. cable television system, (ii) a 'daily newspaper' (as such term is defined in Section 73.3555 of the Federal Communication Commission's ('FCC') rules and regulations), (iii) any U.S. communications facility operated pursuant to a license granted by the FCC and subject to the provisions of Section 310(b) of the Communications Act of 1934, as amended, or (iv) any other business that is subject to FCC regulations under which the ownership of the Partnership in such entity may be attributed to a Limited Partner or under which the ownership of a Limited Partner in another business may be subject to limitation or restriction as a result of the ownership of the Partnership in such entity.
Net Capital Gain. With respect to a Partner, the aggregate amount of net taxable income and net taxable gain allocated to such Partner for federal income tax purposes under this Agreement to the extent such allocations of taxable income and gain are effected as a result of the allocation to the Capital Account of such Partner under this Agreement of corresponding items of Capital Transaction Gain (net of items of Capital Transaction Loss). In calculating Net Capital Gain for any year, capital losses of the Partnership in prior years shall be deemed to be carried over and to offset Net Capital Gain in later years.
Net Income and Net Loss. Except as otherwise specifically provided in this Agreement, the net book income or loss of the Partnership for any relevant period computed without taking into account items comprising Capital Transaction Gain or Loss. The net book income or loss of the Partnership shall be computed in accordance with Federal income tax principles, as adjusted pursuant to the following provisions, under the method of accounting elected by the Partnership for federal income tax purposes. The net book income or loss of the Partnership shall be computed, inter alia, by:
(1) including as income or deductions, as appropriate, any taxexempt income and related expenses that are neither properly included in the computation of taxable income nor capitalized for federal income tax purposes;
(2) including as a deduction when paid or incurred (depending on the Partnership's method of accounting) any amounts utilized to organize the Partnership or to promote the sale of (or to sell) an interest in the Partnership, except that amounts for which an election is properly made by the Partnership under Section 709(b) of the Code shall be accounted for as provided therein;
(3) including as a deduction any losses incurred by the Partnership in connection with the sale or exchange of property notwithstanding that such losses may be disallowed to the Partnership for federal income tax purposes under the related party rules of Code Section 267(a)(1) or 707(b); and
(4) calculating the gain or loss on disposition of Partnership assets and the depreciation, amortization or other cost recovery deductions, if any, with respect to Partnership assets by reference to their Book Value rather than their adjusted tax basis.
Nonmarketable Securities. All Securities other than Marketable Securities.
OneThird in Interest of the Limited Partners. Limited Partners having Capital Contributions the sum of which is at least one third of the aggregate Capital Contributions of the Partners (excluding for the purpose of calculating such requisite percentage, the Capital Contributions of the General Partner, including interests held by the General Partner as a Limited Partner).
Operating Expenses shall have the meaning set forth in Paragraph 4.6.
Original Partners. Each of the persons listed as of the date hereof as Limited Partners on Exhibit A attached hereto, and any transferee of all or any portion of such Limited Partner's interest in the Partnership.
Partners. The General Partner and the Limited Partners.
Partnership. AAA eCommerce Fund, L.P., the partnership formed pursuant to this Agreement.
Partnership Percentage. The Partnership Percentage for each Partner shall be determined by dividing the amount of each Partner's Capital Commitment by the sum of the Capital Commitments of all of the Partners. The sum of the Partners' Partnership Percentages shall be one hundred percent (100%). The aggregate Partnership Percentage of the Limited Partners as a group shall be the sum of the Partnership Percentages of each of the Limited Partners as limited partners.
Payout means the time when each Limited Partner has received cumulative distributions from the Partnership in an amount equal to its Capital Commitment, as adjusted pursuant to any provision of this Agreement (less any portion thereof which such Limited Partner has failed to pay the Partnership when due or subsequently pursuant to Paragraph 3.5). In the event a distribution of cash or Securities causes the Partnership to reach and exceed Payout, the portion of the amount distributed which was necessary to reach Payout will be deemed to have been distributed before Payout, and any remaining amount will be deemed to have been distributed after Payout.
Portfolio Company. Any company in which the Partnership makes an investment.
Principals shall have the meaning set forth in Paragraph 7.8.
Reallocated Loss shall have the meaning set forth in Paragraph 4.4.
Sale or Exchange. A sale, exchange, liquidation or similar transaction, event, or condition with respect to any assets (except realizations of purchase discounts on commercial paper, certificates of deposit, or other moneymarket instruments) of the Partnership of the type that would cause any realized gain or loss to be recognized for income tax purposes under the Code (as determined without giving effect to the related party rules of Code Sections 267(a)(1) and 707(b)).
Securities. Securities of every kind and nature and rights and options with respect thereto, including stock, notes, bonds, debentures, evidences of indebtedness and other business interests of every type, including interests in partnerships, joint ventures, proprietorships and other business entities.
Securities Act. The Securities Act of 1933, as amended.
Shortfall Amount shall have the meaning set forth in Paragraph 3.5(d).
Tax Distribution shall have the meaning set forth in Paragraph 6.3.
Termination Date shall have the meaning set forth in Paragraph 2.3.
TMP shall have the meaning set forth in Paragraph 10.16.
Total Committed Capital shall have the meaning set forth in Paragraph 3.1.
Total General Partner Net Gain or Loss shall have the meaning set forth in Paragraph 8.2(c).
Treasury Regulations. The Income Tax Regulations promulgated under the Code, as such Regulations may be amended from time to time (including corresponding provisions of succeeding Regulations).
TwoThirds in Interest of the Limited Partners. Limited Partners having Capital Contributions the sum of which is at least sixtysix and two thirds percent (662/3%) of the aggregate Capital Contributions of the Partners (excluding, for the purpose of calculating such requisite percentage, the Capital Contributions of the General Partner, including interests held by the General Partner as a Limited Partner).
TwoThirds Invested shall have the meaning set forth in Paragraph 7.8(b).
Zero Balance Amount means, with respect to any Partner and at any time, the amount of such Partner's Capital Commitment which such Partner has not paid to the Partnership in cash on or before such time, and in addition, solely with respect to the General Partner: the aggregate amount of distributions received by the General Partner from the Partnership, but only to the extent that such distributions exceed the aggregate amount of distributions the General Partner would have received if it had made its Capital Contribution as a Limited Partner and did not hold an interest as a General Partner.
ARTICLE II
TERM AND TERMINATION OF THE PARTNERSHIP
2.1. Term of Partnership. The Partnership shall continue until the tenth (10th) anniversary of the Final Closing Date unless sooner terminated as provided in Paragraph 2.2 or by operation of law or extended as provided in Paragraph 2.3.
2.2. Termination. The Partnership shall terminate prior to the tenth (10th) anniversary of the Final Closing Date:
(a) Ninety (90) days after the Bankruptcy or dissolution of the General Partner unless within thirty (30) days after such event Two Thirds in Interest of the Limited Partners consent in writing to a continuation of the Partnership and the appointment of a successor general partner;
(b) One hundred twenty (120) days after the commencement of any proceeding against the General Partner seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within ninety (90) days after the appointment without its consent or acquiescence of a trustee, receiver or liquidator of the General Partner or of all or any substantial part of his properties, the appointment is not vacated or stayed, or within ninety (90) days after the expiration of any such stay, the appointment is not vacated, unless TwoThirds in Interest of the Limited Partners consent in writing to a continuation of the Partnership and the appointment of a successor general partner;
(c) Ninety (90) days after BBB(sb) ceases to be actively involved in the management of the Partnership for any reason unless within such period a Majority in Interest of the Limited Partners (calculated by treating the interest of AAA as a nonvoting interest) elect to continue the Partnership, with such additional personnel being involved in the management of the Partnership as shall be acceptable to the General Partner and a Majority in Interest of the Limited Partners (calculated by treating the interest of AAA as a nonvoting interest);
(d) Upon the vote of TwoThirds in Interest of the Limited Partners after a final determination of a court of competent jurisdiction that the General Partner intentionally or willfully breached any material provision of this Agreement or that the General Partner was grossly negligent in the performance of its duties hereunder; or
(e) Upon the consent of the General Partner and OneThird in Interest of the Limited Partners.
2.3. Extension of Term. The term of the Partnership may be extended for up to one year after the tenth (10th) anniversary of the Final Closing Date in the discretion of the General Partner. The General Partner shall deliver written notice of any such extension to the Limited Partners. The term of the Partnership may be extended thereafter only with the consent of the General Partner and TwoThirds in Interest of the Limited Partners. Any such extension shall be subject to the earlier termination of the Partnership as provided in Paragraph 2.2. The last day of the term of the Partnership, as such may be extended as provided herein, is referred to herein as the 'Termination Date.'
2.4. Events Affecting a Member of the General Partner. The death, temporary or permanent incapacity, insanity, incompetency, Bankruptcy, expulsion, retirement, withdrawal or removal of any member of the General Partner or the admission of additional members to the General Partner shall not dissolve the Partnership.
2.5. Events Affecting a Limited Partner of the Partnership. The death, temporary or permanent incapacity, insanity, incompetency, Bankruptcy, liquidation, dissolution, reorganization, merger, sale of substantially all the stock or assets of, or other change in the ownership or nature of a Limited Partner shall not terminate the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1. Capital Commitment of the Limited Partners. Set forth opposite the name of each Limited Partner listed on Exhibit A attached hereto is such Limited Partner's capital commitment to the Partnership. (The capital commitment of each Partner (as it may be subsequently adjusted pursuant to the terms hereof) is referred to herein as the Partner's 'Capital Commitment' and the total Capital Commitments of the Partners shall be referred to herein as the 'Total Committed Capital.') Each Limited Partner's Capital Commitment represents the aggregate amount of capital that such Limited Partner has agreed to contribute to the Partnership in accordance with the terms hereof. No Limited Partner shall be obligated to contribute capital to the Partnership an amount in excess of its Capital Commitment. AAA's Capital Commit ment set forth in Exhibit A reflects the agreed fair market value of the Securities being contributed by AAA to the Partnership and shall be the sole Capital Commitment of AAA.
3.2. Capital Contributions by the Limited Partners
(a) As its sole Capital Contribution, AAA has contributed the Securities listed in Exhibit B, which Securities had the agreed values when contributed set forth thereon. The Limited Partners (other than AAA) shall make their Capital Contributions to the Partnership, payable by wire transfer or check, in installments (each such payment being referred to as a 'Drawdown'). Such Capital Contributions shall be made upon no less than fourteen (14) days' prior written notice from the General Partner (a 'Drawdown Notice'), in such amounts as may be determined in the sole discretion of the General Partner and at such time, subject to the fourteen (14) day notice period, as the General Partner shall specify in the Drawdown Notice (the 'Drawdown Date'). All Drawdowns shall be in U.S. dollars. No Limited Partner shall have the right to make partial payments of a required Capital Contribution. Each Drawdown Notice shall be given to each Limited Partner of the Partnership. The additional capital required of the respective Limited Partners upon any Drawdown shall be based on the relative amounts of the unpaid balances of their respective Capital Commitments.
(b) After the expiration of the Investment Period, the General Partner shall not be authorized to call (and the Partners shall not be obligated to make) any Capital Contributions to fund investments which the Partnership is not contractually obligated to make at such time other than for:
(1) Investments reasonably expected to close within ninety (90) days after the expiration of the Investment Period;
(2) Investments as to which, prior to the expiration of the Investment Period, the Partnership and the prospective company or entity in which such investment is to be made have a letter of intent or a definitive agreement setting forth the material terms and conditions of such investment;
(3) Investments in partnerships, limited liability companies and other passthrough entities pursuant to capital commitments made during the Investment Period; or
(4) FollowOn Investments (including FollowOn Investments with respect to investments in which the initial investment by the Partnership is made pursuant to clause (1), (2) or (3) of this Paragraph 3.2(b)).
3.3. Capital Commitment of the General Partner. The General Partner's Capital Commitment shall be an aggregate amount of $ _________.
3.4. Capital Contributions of the General Partner. On any date on which a Limited Partner makes a contribution to the capital of the Partnership, the General Partner shall contribute to the Partnership in such amount as may be necessary to cause the percentage of the General Partner's Capital Commitment actually contributed to the Partnership to be the same as the percentage of the Capital Commitments of the Limited Partners (other than AAA) actually contributed to the Partnership as of such date. Such contribution may be made, at the General Partner's discretion, in the form of a promissory note.
3.5. Defaulting Partners
(a) If a Partner fails to pay any amount which it is required to pay to the Partnership on or before the date when such amount is due and payable, such Partner shall be deemed to be in default hereunder (a 'Defaulting Partner'), and written notice of default shall be given to such Limited Partner by the General Partner by certified or registered mail. The Partnership shall be entitled to enforce the obligations of each Partner to make the contributions to capital required in this Agreement and shall have all remedies available at law or in equity in the event any such contribution is not so made. In the event of any legal proceedings relating to a default by a Defaulting Partner, such Defaulting Partner shall pay all costs and expenses incurred by the Partnership, including attorneys' fees, if the Partnership shall prevail. Further, such Defaulting Partner shall be obligated to pay the Partnership interest with respect to the amount of any Capital Contribution not made when required by this Article, with such interest commencing on the Drawdown Date for such contribution and ending on the date such contribution is made to the Partnership. Such interest shall be calculated on the basis of the then current reference rate announced by Wells Fargo Bank, N.A., or by any other U.S. commercial bank with capital in excess of _________ Dollars ($ _________) selected by the General Partner, plus five percent (5%) per annum, but not in excess of the amount allowable by law.
(b) In addition to the remedies provided under Paragraph 3.5(a), if the Defaulting Partner does not cure a default in the payment of a required contribution within ten (10) business days of the receipt of the notice specified in Paragraph 3.5(a), the General Partner (in its sole discretion) may, as liquidated and agreed current damages to the nondefaulting Partners for such default (it being agreed that it would be difficult to fix the actual damages to such Partners), cause and treat the Defaulting Partner's Capital Account to be reduced by an amount equal to fifty percent (50%), which amount shall thereupon become unrestricted assets of the Partnership and shall be allocated pro rata to and among the respective Capital Accounts of the nondefaulting Partners in such proportion as the Capital Account of each such nondefaulting Partner then bears to the sum of the Capital Accounts of all nondefaulting Partners. The Defaulting Partner's remaining fifty percent (50%) interest in its Capital Account shall automatically be converted into a general unsecured obligation of the Partnership, which obligation shall not bear any interest and shall be due six (6) months after the Termination Date of the Partnership. Upon the expiration of the ten (10) day period after the mailing of the notice of default and the election by the General Partner to exercise its remedy under this subparagraph (b), a Defaulting Partner shall automatically cease to be a Partner under this Agreement and shall have no further interest, right or claim in or against the Partnership, including any right or obligation to make subsequent Capital Contributions when called.
(c) Notwithstanding the foregoing, if, at any time before a Capital Contribution required by Paragraph 3.2 becomes due, a Partner obtains and delivers to the Partnership an opinion of counsel (which opinion shall be reasonably acceptable to the General Partner) to the effect that the payment by such Partner of any portion of any remaining Capital Contributions required by this Agreement will be unlawful or that there is a material likelihood that such payment will be unlawful, then (A) such Partner shall have no further right or obligation to pay the pertinent portion of such Capital Contribution (depending on whether the Partner is withdrawing from or simply reducing its interest in the Partnership), (B) such Partner's Capital Commitment specified on Exhibit A shall be reduced by an amount equal to such Capital Contribution, and (C) such Partner shall not, by reason of his or her failure to make such Capital Contribution, be deemed or treated as a Defaulting Partner for purposes of this Paragraph 3.5.
(d) The General Partner may seek to fund the amount of any Capital Contribution that a Defaulting Partner has failed to contribute or that is not contributed pursuant to Paragraph 3.5(c) (the 'Shortfall Amount') as follows:
(1) The General Partner may in its discretion determine to increase the amount of the Capital Contributions required from each Partner to fund such Shortfall Amount ratably in accordance with the Partners' relative unpaid Capital Commitments (not to exceed any Partner's remaining Capital Commitment).
(2) Alternatively, the General Partner may offer the Partners who have made Capital Contributions the opportunity to make additional Capital Contributions to fund such Shortfall Amount. If any such Partner declines to invest in all or any portion of its share of the Shortfall Amount, such uncommitted amount will be offered to any other Partner who has invested its share of the Shortfall Amount and concurrently advised the General Partner of its willingness to make a Capital Contribution in excess of such share, and the General Partner shall allocate such uncommitted amount among all such other Partner on a basis the General Partner determines in its discretion is, under the circumstances, equitable and practicable.
(3) To the extent any Shortfall Amount has not been fully funded by the Partners, the General Partner may seek to fund the remaining Shortfall Amount by offering Limited Partner interests to any other person on substantially the same economic terms and conditions as are provided to the Partners.
ARTICLE IV
CAPITAL ACCOUNTS AND ALLOCATIONS
4.1. Capital Accounts. A Capital Account shall be maintained on the Partnership's books for each Partner. In the event any interest in the Partnership is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest.
4.2. Adjustments to Capital Accounts
(a) The Capital Account of each Partner shall be increased by:
(1) the amount of money and the fair market value of any property other than money contributed to the Partnership by such Partner (in the case of a contribution of property, net of any liabilities secured by such property that the Partnership is considered to assume or hold subject to for purposes of Section 752 of the Code),
(2) such Partner's share of Capital Transaction Gain and Net Income (or items thereof) allocated to its Capital Account pursuant to this Agreement, and
(3) any other amounts required by Treasury Regulation Section 1.7041(b), provided the General Partner determines that such increase is consistent with the economic arrangement among the Partners as expressed in this Agreement.
(b) The Capital Account of each Partner shall be decreased by:
(1) the amount of money and the fair market value of any property other than money distributed by the Partnership (determined pursuant to Paragraph 9.2 hereof as of the date of distribution) to such Partner pursuant to the provisions of this Agreement (net of any liabilities secured by such property that such Partner is considered to assume or hold subject to for purposes of Section 752 of the Code),
(2) such Partner's share of Capital Transaction Loss and Net Loss (or items thereof) allocated to its Capital Account pursuant to this Agreement, and
(3) any other amounts required by Treasury Regulation Section 1.7041(b), provided the General Partner determines that such decrease is consistent with the economic arrangement among the Partners as expressed in this Agreement.
4.3. Allocation of Capital Transaction Gain or Loss
(a) Allocation of Capital Transaction Gain. Capital Transaction Gain of the Partnership for each Fiscal Year or Interim Period shall be allocated as follows:
(1) Twenty percent (20%) of the Partnership's Capital Transaction Gain shall be allocated to the General Partner.
(2) The remaining eighty percent (80%) of the Partnership's Capital Transaction Gain shall be allocated to all Partners as a group.
(3) Notwithstanding the foregoing, if one or more Limited Partners have been allocated a Reallocated Loss pursuant to Paragraph 4.5, then Partnership Capital Transaction Gain that would otherwise be allocated entirely to the General Partner pursuant to Paragraph 4.3(a)(1) shall instead be allocated first to the Limited Partners (in proportion to the amount of Reallocated Loss previously allocated to them) until the Limited Partners have been allocated an aggregate amount of Capital Transaction Gain equal to the previously allocated Reallocated Loss that has not been restored by prior allocations pursuant to this subparagraph and then any such remaining Capital Transaction Gain shall be allocated to the General Partner.
(b) Allocation of Capital Transaction Loss. Capital Transaction Loss of the Partnership for each Fiscal Year or Interim Period shall be allocated as follows:
(1) Twenty percent (20%) of the Partnership's Capital Transaction Loss shall be allocated to the General Partner.
(2) The remaining eighty percent (80%) of such Capital Transaction Loss shall be allocated to all Partners as a group.
4.4. Allocation of Net Income or Loss. Net Income or Loss of the Partnership for each Fiscal Year or Interim Period shall be allocated to all Partners as a group.
4.5. Reallocation of Losses. If for any Fiscal Year or Interim Period after the Partnership's Capital Transaction Gain or Loss and Net Income or Loss has been allocated pursuant to Paragraphs 4.3 and 4.4 the closing Adjusted Capital Balance of the General Partner has been reduced to less than zero by more than the amount necessary to properly reflect the General Partner's obligation to recontribute amounts to the Partnership pursuant to Paragraph 8.2 upon termination of the Partnership, then an amount of Capital Transaction Loss and, to the extent necessary, Net Loss (the 'Reallocated Loss') for such Fiscal Year or Interim Period shall be reallocated from the General Partner to the Limited Partners as a group so that the General Partner's closing Adjusted Capital Balance is not reduced below zero by more than the amount necessary to properly reflect the General Partner's obligation to recontribute amounts to the Partnership pursuant to Paragraph 8.2 upon termination of the Partnership. A Reallocated Loss may be restored only from future Capital Transaction Gain.
4.6. Allocation Among Partners as a Group. Except as otherwise specifically provided in this Agreement, all Capital Transaction Gain or Loss and Net Income and Loss (and items thereof) allocated to the Partners (or a group of Partners) as a group for any period shall be allocated among such Partners in proportion to their respective Partnership Percentages as of the end of such period. In making such allocations, any changes in Partnership Percentages as a result of changes in the Capital Commitments of the Partners, any exclusion of any Partners from particular investments, any contributions of Partners to fund any Shortfall Amount and similar matters shall be taken into account.
4.7. Special Allocation Among LateEntering Limited Partners of Organization and Operating Expenses. The following items of Net Income or Loss are collectively referred to herein as 'Operating Expenses':
(a) The Management Fee and other payments and reimbursements of expenses paid pursuant to Article V other than amounts capitalized as part of the cost of Securities or other assets for federal income tax purposes; and
(b) All expenditures of the Partnership classified for federal income tax purposes as organization or syndication expenses.
Notwithstanding Paragraph 4.6, if additional Limited Partners are admitted to the Partnership pursuant to Paragraph 7.6(b) hereof during a particular period, the Operating Expenses for such period allocable to the Limited Partners shall be allocated among the Original Partners and the Limited Partners admitted pursuant to Paragraph 7.6(b) hereof so that, to the extent possible, the cumulative amount of Operating Expenses allocated to each Limited Partner is proportionate to such Limited Partner's Partnership Percentage as compared to the Partnership Percentages of the Limited Partners as a group (taking into account the additional Limited Partners admitted pursuant to Paragraph 7.6(b)).
4.8. Allocations and Distributions Attributable to Removed General Partner. Notwithstanding the foregoing sections of this Article IV, if the initial General Partner ceases to be the General Partner and a successor General Partner is appointed pursuant to Paragraph 2.2, such initial General Partner shall continue to receive the allocations and distributions otherwise attributable to the General Partner pursuant to this Article IV, Article VI and Article VIII both in its capacity as a General Partner and in its capacity as a Limited Partner; provided, however, that on or after the date a successor General Partner is appointed pursuant to Paragraph 2.2, such allocations and distributions attributable to the initial General Partner in its capacity as a General Partner shall be calculated only with respect to investments that were made or as to which the Partnership was committed to invest or had reserved capital to invest at such time. Notwithstanding the foregoing if the General Partner is removed as a result of committing an act of fraud or willful misconduct against the interest of the Limited Partners, the General Partner's rights to further allocations pursuant to Paragraphs 4.3(a)(1) and 4.3(b)(1) shall cease upon such removal. The General Partner shall nevertheless continue to be subject to any obligations to the Partnership pursuant to Paragraph 8.2.
ARTICLE V
MANAGEMENT FEE; EXPENSES
5.1. Entitlement to Management Fee. As compensation for its services rendered in managing the Partnership, the General Partner shall be entitled to recover a fee calculated as prescribed in this Article V (the 'Management Fee'). The Management Fee shall not be considered a distribution of profits or a return of capital for the purpose of any provision of this Agreement, but shall be considered an expense of the Partnership, and shall be deducted from Partnership Net Income or added to Partnership Net Loss in determining the Net Income or Net Loss of the Partnership pursuant to Article IV hereof.
5.2. Payment of Management Fee. The Management Fee shall be at an annual rate of 1.75% of the Total Committed Capital of the Partnership through the end of the Investment Period. After the end of the Investment Period, the Management Fee shall be at an annual rate of 1.75% of the total cost of the Portfolio Securities held by the Partnership, with the cost of the Portfolio Securities being redetermined for this purpose on January 1 and July 1 of each Fiscal Year after the end of the Investment Period. The Management Fee shall commence to accrue on the date of this Agreement. Payment of the Management Fee shall be made (i) with respect to the first Fiscal Quarter of the Partnership (ending _________,_________,_________(M/D/Y)), at any time on or prior to _________,_________,_________(M/D/Y), in an amount equal to the percentage of the annual Management Fee as reflects the number of days from the date of this Agreement through _________,_________,_________(M/D/Y), divided by 365 days, and (ii) thereafter quarterly in advance on the first day of each Fiscal Quarter of the Partnership in an amount equal to 25% of the annualized Management Fee. Additional Management Fees resulting from an increase in the Total Committed Capital shall be payable promptly after the acceptance of additional Capital Commitments (with such payment being prorated to reflect the remaining term of the then current fiscal period). The Management Fee shall be reduced by the amount of any transaction fees (but not including director options or director fees) received by the General Partner or its members or Affiliates (net of associated expenses) from Portfolio Companies. Such reduction shall be made in each installment of the Management Fee until the entire net amount of the transaction fees have offset the Management Fees.
5.3. Payment of Expenses.
(a) Except as set forth in Paragraph 5.3(b) hereof, the General Partner agrees to incur on behalf of the Partnership and to otherwise assume all expenses attributable to the management and administration of the investment activities of the Partnership. Such expenses include (but are not limited to) consulting fees, compensation and expenses of the employees of the General Partner, including any salaries of members of the General Partner in their capacity as employees of the General Partner, expenses for administrative, bookkeeping, clerical and related support services, insurance, office space and facilities, utilities, telephone and travel insofar as they relate to the investment activities of the Partnership.
(b) The Partnership shall pay, or reimburse the General Partner (or AAA if and to the extent it incurs expenses on behalf of the Partnership) for all expenses of the Partnership (or incurred by the General Partner or AAA for or on behalf of the Partnership) which (i) relate to the management and administration of the Partnership itself as a going concern (as opposed to operating expenses incurred in connection with the Partnership's investment activities), or (ii) are incurred in the purchase, holding, sale, exchange or other disposition of investments. Such expenses include (without limitation) organizational and offering expenses of the Partnership up to an aggregate of _________ dollars ($ _________); any taxes which may be assessed against the Partnership; commissions or brokerage fees or similar charges incurred in connection with the purchase and sale of securities (including any merger or transaction fees payable to third parties); interest expense and financing charges for borrowed money; all expenses relating to litigation and threatened litigation involving the Partnership; normal investment banking, legal, custodial, registration, auditing and accounting services provided to the Partnership; and any other expenses associated with the acquisition, holding or disposition of investments. The Partnership also shall pay or reimburse the General Partner (or AAA) for all payments to third parties related to the investment activities of the Partnership in developing, negotiating and structuring prospective or potential investments with respect to which the Partnership enters into a purchase agreement, letter of intent or memorandum of understanding, but that are not ultimately made.
5.4. No Salaries to General Partner. The General Partner and its members shall receive no salaries from the Partnership. This paragraph shall not restrict the payment of salaries by the General Partner.
ARTICLE VI
WITHDRAWALS BY AND DISTRIBUTIONS TO THE PARTNERS
6.1. Interest. No interest shall be paid to any Partner on account of its interest in the capital of, or on account of its investment in, the Partnership.
6.2. Withdrawals by the Partners. No Partner may withdraw any amount from its Capital Account except as specifically provided in this Agreement.
6.3. Mandatory Cash Distributions. Within ninety (90) days after the end of each Fiscal Year, the Partnership shall distribute to each Partner cash in an amount equal to the aggregate federal and state income tax liability such Partner would have incurred as a result of such Partner's ownership of an interest in the Partnership, calculated: (i) as if allocations from the Partnership of any Net Capital Gain and any Net Loss were, for such Fiscal Year, the sole source of taxable income and loss for such Partner; (ii) as if such Partner were an individual taxable at the combined maximum marginal rate provided with respect to such Net Capital Gain and Net Loss (taking into account the character of the items of Net Capital Gain and Net Loss for tax purposes) under applicable federal and state income tax laws applicable to individuals residing in California; and (iii) taking into account the deductibility of state taxes in the calculation of federal income taxes (a 'Tax Distribution'). Any Tax Distributions to a Partner shall reduce the amounts otherwise distributable to the Partner pursuant to Paragraph 6.4.
6.4. Additional Distributions. The General Partner (i) shall distribute any proceeds from the Sale or Exchange of Securities of Portfolio Companies as soon as practicable following such Sale or Exchange, subject to the retention of such amounts as are necessary to pay Partnership expenses and obligations (including the Management Fee) and/or for permitted reinvestments and (ii) may in its discretion make distributions of Securities of Portfolio Companies. All distributions under this Paragraph 6.4 shall be made as follows:
(a) At any time prior to achievement of Payout if the Fair Value Test is not satisfied, all such distributions will be made to the Partners as a group in proportion to their respective Partnership Percentages.
(b) At any time prior to achievement of Payout if the Fair Value Test is satisfied, all such distributions will be made, in the General Partner's sole discretion, either (1) to the Partners as a group in proportion to their respective Partnership Percentages, or (2)(i) first, to the General Partner until the General Partner has received distributions pursuant to this Paragraph 6.4(b)(2)(i) and Tax Distributions pursuant to Paragraph 6.3 equal to a maximum of twenty percent (20%) of the total amount distributed and being distributed to all Partners pursuant to Paragraphs 6.3 and 6.4(a) and this Paragraph 6.4(b), and (ii) the remainder of such distributions will be made to the Partners as a group in proportion to their respective Partnership Percentages; provided, however, that the amount distributable to the General Partner pursuant to Paragraph 6.4(b)(2)(i) will in no event exceed either (x) the cumulative amount of the Capital Transaction Gain net of Capital Transaction Loss allocated to the General Partner under Paragraphs 4.3(a)(1) and 4.3(b)(1) or (y) an amount which would cause the General Partner's Fair Value Capital Account to be reduced below the amount of the General Partner's Capital Contributions or would further reduce an existing balance of such Fair Value Capital Account that is already less than the General Partner's Capital Contributions; provided, further that the General Partner will not cause or permit the Partnership to make any distribution to the General Partner pursuant to Paragraph 6.4(b)(2)(i) unless the Partnership has made (and/or provided through reserves for) distributions to each Partner, with respect to the Fiscal Year in which any proposed distribution under Paragraph 6.4(b)(2)(i) otherwise would occur, in aggregate amounts equal to the Tax Distribution to which each Partner would be entitled pursuant to Paragraph 6.3 with respect to such Fiscal Year if such Fiscal Year ended on the date of the proposed distribution.
(c) After Payout has been achieved, all such distributions will be made to the Partners in proportion to the positive balances in their respective Capital Accounts after such Capital Accounts have been adjusted to reflect all Capital Transaction Gain or Loss (including Capital Transaction Gain or Loss arising in connection with the distribution and Sale or Exchange of Securities) through the date of the distribution.
(d) Each class of Securities to be distributed in kind shall be distributed to the Partners in proportion to their respective shares of the proposed distribution, except to the extent that a disproportionate distribution of Securities is necessary in order to avoid distributing fractional shares. For purposes of the preceding sentence, each lot of stock or other Securities having a separately identifiable tax basis or holding period will be treated as a separate class of Securities. Notwithstanding anything contained in this Agreement: (i) no distribution (other than a Tax Distribution) will be made to any Partner if, and to the extent that, such distribution would (x) cause such Partner's Capital Account to be negative by an amount which exceeds such Partner's Zero Balance Amount or (y) further reduce a balance in such Partner's Capital Account that is already negative by an amount which exceeds such Partner's Zero Balance Amount; and (ii) no distribution will be made unless all liabilities of the Partnership to persons other than Partners have been satisfied or, in the good faith judgment of the General Partner, there remains property of the Partnership sufficient to satisfy such liabilities.
(e) Except upon liquidation of the Partnership or with the approval of the General Partner and a Majority in Interest of the Limited Partners, no distribution shall be made other than in cash or Marketable Securities.
(f) Immediately prior to any distribution in kind of Securities (or other Partnership assets) pursuant to any provision of this Agreement (including pursuant to Article VIII), the difference between the fair market value and the Book Value of any Securities (or other Partnership assets) distributed shall be allocated to the Partners as Capital Transaction Gain or Loss pursuant to Article IV.
(g) Securities distributed in kind pursuant to this Paragraph 6.4 shall be subject to such conditions and restrictions as the General Partner determines are legally required.
(h) For purposes of this Agreement, all distributions of Securities shall be deemed to have been made on the date on which the Partnership commences the distribution of the Securities to the Limited Partners, provided that the delivery of the Securities is promptly completed.
ARTICLE VII
MANAGEMENT, DUTIES AND RESTRICTIONS
7.1. Management by General Partner. The General Partner shall have the sole and exclusive right and power to manage, control, and conduct the affairs of the Partnership and to perform any and all acts on behalf of the Partnership that the General Partner deems necessary, advisable or incidental to carry out any or all of the objects and purposes of the Partnership.
7.2. Indebtedness; Restrictions; Reinvestments
(a) The Partnership may borrow money and guarantee the obligations of, and supply letters of credit on behalf of, Portfolio Companies; provided that at no time shall the Partnership guarantee, directly or indirectly, obligations of a General Partner or a Limited Partner; and further provided that the Partnership shall provide a guaranty to a Portfolio Company only if each member of the General Partner with an interest in that Portfolio Company provides a guaranty on the same terms and in amount proportional to the investment of such member as compared to the Partnership. While outstanding, any guarantee of the obligations of any Portfolio Company shall be considered an investment in such Portfolio Company for purposes of Paragraph 7.2(b). Additionally, except with the approval of a Majority in Interest of the Limited Partners, the Partnership shall not at any point in time be the guarantor (or the obligor on any letter of credit) of thencurrent liabilities that, in the aggregate, amount to more than thirty percent (30%) of the Total Committed Capital of the Partnership.
(b) Except with the approval of a Majority in Interest of the Limited Partners and except with respect to the Securities contributed by AAA as described in Exhibit B, the Partnership shall not invest more than twentyfive percent (25%) of the aggregate amount of the Total Committed Capital (i) in the Securities of any one issuer or its affiliates, (ii) in any other investment pool or partnership, or (iii) in Securities purchased by the Partnership in the overthecounter market or that are listed on a securities exchange (with the twentyfive percent (25%) test being applied separately with respect to each of the foregoing three categories of investments). The limitations set forth in this Paragraph 7.2(b) shall not apply to any funds of the Partnership which are invested in investments described in Paragraph 7.2(e).
(c) The Partnership shall not reinvest any proceeds realized on the Sale or Exchange of Securities of Portfolio Companies in Securities of other Portfolio Companies except for FollowOn Investments. In no event shall the Partnership make cumulative investments in Securities of Portfolio Companies in excess of the Total Committed Capital.
(d) No Partner shall be permitted to borrow money from the Partnership.
(e) Pending use of funds to make investments in Securities of Portfolio Companies, to make distributions or to pay expenses or obligations of the Partnership in accordance with the terms hereof, the funds of the Partnership shall be invested by the General Partner only in (i) securities issued by, or backed by the full faith and credit of, the United States government, (ii) certificates of deposit issued by commercial banks with capital in excess of _________ Dollars ($ _________), (iii) commercial paper rated A1 or P1, or (iv) shares in investment companies generally known as 'money market funds' which have assets in excess of _________ Dollars ($ _________).
(f) The Partnership shall not invest in (i) any Securities the purchase of which is opposed by the issuer's board of directors; or (ii) options contracts or futures contracts, or any other security, the value of which is based upon, or derived from, any underlying index, reference rate, other security, commodity or other asset; provided, however, that this restriction shall not be deemed to prohibit the General Partner from (A) hedging Portfolio Company investments so long as such transactions are reasonably related to the amount and type of Securities being hedged and are not undertaken for independent investment purposes, (B) hedging the currency risk of foreign Portfolio Company investments, (C) investing in any Security the value of which is based upon, or derived from, any Security already held by the Partnership, and (D) investing in traditional options, warrants and other rights to acquire Securities that would otherwise be permitted Portfolio Company investments under the terms of this Agreement.
(g) The Partnership shall not invest in real estate, oil or gas investments, commodities or in securities bearing unlimited liability.
(h) The Partnership shall not engage in uncovered short sales.
(i) The Partnership shall not make any investment in an issuer which is organized in any jurisdiction outside the United States and Canada (each such issuer being a 'Foreign Entity'), unless the Partnership has received, prior to or at the closing of any such investment, a Limited Liability Entity Opinion with respect to the issuer's form of entity. A 'Limited Liability Entity Opinion' shall be an opinion of counsel, licensed or otherwise authorized to practice in the jurisdiction in which a particular Foreign Entity is organized, which opinion may be relied upon by the Partnership and does not contain more than reasonable carveouts by opining counsel, stating (i) that the Partnership shall not be obligated beyond its committed investment in such Foreign Entity for any debt, obligation or liability of an entity of the form of the particular issuer, solely by reason of the Partnership being an investor in such an entity; and (ii) that no Limited Partner of the Partnership shall be obligated for any debt, obligation or liability of an entity of the form of the particular issuer, solely by reason of the Partnership being an investor in such an entity. Once the Partnership has received such an opinion for investments in a particular form of entity in a particular jurisdiction, such opinion shall satisfy the requirements of this paragraph for all investments in other Foreign Entities of the same form as that which is the subject of the opinion. The Partnership shall not invest an aggregate of more than thirty percent (30%) of the Total Committed Capital in Securities of Foreign Entities.
(j) The Partnership shall not make any investment in any other investment pool or partnership if a management fee and/or 'carried interest' is payable with respect to such investment unless the General Partner waives its Management Fee and/or 'carry' with respect to such investment.
7.3. Investment Representation of the Limited Partners. This Agreement is made with each Limited Partner in reliance upon such Limited Partner's representation to the Partnership, which by executing this Agreement the Limited Partner hereby confirms, that such Partner's interest in the Partnership is being acquired for investment, and not with a view to the sale or distribution of any part thereof, and that such Partner has no present intention of selling, granting participation in, or otherwise dist
