Transcription
L.P.A Delaware Limited PartnershipAMENDED AND RESTATED AGREEMENTOF LIMITED PARTNERSHIP, 2017LIMITED PARTNER INTERESTS IN THIS PARTNERSHIP HAVE NOT BEENREGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION UNDER THEU.S. SECURITIES ACT OF 1933 (THE “SECURITIES ACT”) OR QUALIFIED WITH ANYSTATE SECURITIES LAW. A HOLDER OF AN INTEREST MAY NOT SELL, PLEDGE,HYPOTHECATE OR OTHERWISE TRANSFER THAT INTEREST, OR ANY INTEREST INTHAT INTEREST (A “TRANSFER”), UNLESS THE HOLDER CAN DEMONSTRATE THATTHE PROPOSED TRANSFER WILL NOT VIOLATE THE REGISTRATIONREQUIREMENTS OF THE SECURITIES ACT AND THE QUALIFICATIONREQUIREMENTS OF APPLICABLE STATE LAW. THIS AGREEMENT CONTAINSADDITIONAL CONDITIONS THAT A HOLDER MUST SATISFY BEFORETRANSFERRING AN INTEREST OR ANY PORTION OF OR INTEREST IN AN INTEREST.
TABLE OF CONTENTSPageARTICLE 1 DEFINITIONS . 1ARTICLE 2 GENERAL PROVISIONS . 112.1Formation . 112.2Filing of Certificates . 112.3Name. 112.4Principal Office . 112.5Agent . 122.6Purpose. 122.7Term . 12ARTICLE 3 CAPITAL CONTRIBUTIONS; INVESTMENTS . 123.1Capital Commitments. 123.2Capital Contributions . 123.3No Interest . 133.4Suspension of Investment Activities . 13ARTICLE 4 ACCOUNTS; ALLOCATIONS; VALUATIONS . 144.1Opening Accounts . 144.2. 144.3Special Allocation Provisions . 144.4Capital Account Adjustments . 154.5. 164.6Tax Allocations . 174.7Tax Withholding . 184.8Distributions . 194.9Interpretive Authority . 204.10Determination of Net Asset Value . 204.11Reserves . 204.12Valuation of Assets. 20ARTICLE 5 ADMISSIONS; WITHDRAWALS . 215.1Withdrawal of Initial Limited Partner . 21i
Table of Contents (continued)Page5.2Admission of Limited Partners . 215.3Admission of Additional General Partners . 215.4Limited Partner Withdrawals . 215.5. 225.6Conditions and Restrictions . 23ARTICLE 6 EXPENSES AND REIMBURSEMENT; FEES. 246.1Expenses and Reimbursements . 246.2Management Fee . 276.3Placement Fees . 27ARTICLE 7 RIGHTS AND OBLIGATIONS OF THE GENERAL PARTNER . 287.1General Authority and Power. 287.2Right of Others to Rely on Authority of General Partner . 307.3Custody and Brokerage . 317.4[Reserved] . 317.5. 317.6. 327.7. 337.8. 347.9. 347.10Non-U.S. Investments . 347.11. 35ARTICLE 8 EXCULPATION, INDEMNIFICATION AND LIABILITY OFPARTNERS . 368.1Exculpation and Indemnification . 368.2Limited Partner Limited Liability . 398.3No Participation in Management . 408.4Limitations on Limited Partner Rights. 40ARTICLE 9 TRANSFERS OF PARTNERSHIP INTERESTS . 409.1Restrictions . 409.2Effect of Violation . 419.3Admission of Substituted Limited Partners . 419.4Rights of Transferee . 42ii
Table of Contents (continued)Page9.5. 429.6Allocations between Transferor and Transferee . 429.7Transfer of General Partner’s Interest . 42ARTICLE 10 BOOKS AND RECORDS; ACCOUNTING; TAX ELECTIONS . 4210.1Books and Records. 4210.2[Reserved] . 4310.3Transparency. 4310.4Reports . 4310.54410.6Tax Returns and Elections . 4410.7Notices of Certain Matters . 4510.8Tax Matters Partner . 45ARTICLE 11 DISSOLUTION . 4611.1Events of Dissolution. 4611.2Winding Up. 4611.5[Reserved] . 4711.4Authority to Wind Up . 4711.5Termination . 47ARTICLE 12 REPRESENTATIONS AND WARRANTIES. 4712.1. 4712.2Representations and Warranties of Limited Partners . 51ARTICLE 13 MISCELLANEOUS PROVISIONS . 5113.1Amendment . 5113.2Confidentiality . 5213.3. 5513.4Failure by Limited Partner to Make Payments . 5613.5Counterparts . 5813.6Successors and Assigns . 5813.7Notices . 5813.8Benefits . 6013.9Severability . 6013.10 Complete Agreement . 60iii
Table of Contents (continued)Page13.11 Governing Law; Jurisdiction . 6013.3[Reserved] . 6013.13 Gender and Certain Other References . 6013.14 No Waiver . 6113.15. 6113.16 Sovereign Immunity. 6113.17 Website . 6113.18 Opinion of Counsel . 6113.19 Firm Name . 6213.20. 6213.21 Media Insulation Provisions. 6213.22 FCC Matters . 6313.23 FCC Approvals. 6413.24 Legal Counsel . 6413.25 Benefits of Agreement; No Third-Party Rights . 64iv
i
AMENDED AND RESTATEDAGREEMENT OF LIMITED PARTNERSHIPOFL.P.This Amended and Restated Agreement of Limited Partnership (the “Agreement”), datedas of, 2017, is entered into by and among (i), as the initial limited, as the general partner, (ii)partner (the “Initial Limited Partner”), (iii) Kentucky Retirement Systems and KentuckyRetirement Systems Insurance Trust Fund (collectively with Kentucky Retirement Systems,“KRS”) and (iv), as theinvestment manager and not as a partner of the Partnership. Except where the context otherwiserequires, capitalized terms used herein have the meanings given in Article 1.RECITALSA.The General Partner and the Initial Limited Partner formed the Partnership as alimited partnership pursuant to the Delaware Revised Uniform Limited Partnership Act, 6 Del. C.17-101 et seq., as amended (the “Act”), pursuant to the filing of the Certificate of LimitedPartnershipB.The General Partner and the Initial Limited Partner previously entered into anagreement of limited partnership with respect to the Partnership (the “Original Agreement”).C.The parties wish to (i) admit Kentucky Retirement Systems and KentuckyRetirement Systems Insurance Trust Fund to the Partnership as limited partners, (ii) effect thewithdrawal of the Initial Limited Partner and (iii) amend and restate the Original Agreement as setforth herein.AGREEMENTIn consideration of the following mutual promises, the parties agree as follows:ARTICLE 1DEFINITIONSThe following terms used in this Agreement will have the meanings set forth below, unlessthe context otherwise requires:“Act” has the meaning specified in the Recitals.“Administration Agreement” has the meaning specified in Section 4.12.2.
“Administrator” means a reputable, independent administrator, which shall initially beor one or more of its Affiliates), and any successor, assign orreplacement, as the General Partner may determine from time to time, with Notice to all of theLimited Partners.“Advisers Act” has the meaning specified in Section 13.20.“Affiliate” of any person means any person that, directly or indirectly through one or moreintermediaries, controls, is controlled by or is under common control with such person. The term“control” means (i) the legal or beneficial ownership of securities representing a majority of thevoting power of any person or (ii) the possession, directly or indirectly, of the power to direct orcause the direction of the management and policies of a person, whether by contract or otherwise.“Agreement” means this Amended and Restated Agreement of Limited Partnership, as itmay be amended from time to time.“Alien” means (a) a person that is a citizen of a country other than the United States; (b) aperson (other than an individual) that is organized under the laws of a jurisdiction other than theUnited States or any state, territory or possession of the United States; (c) a government other thanthe government of the United States or of any state, territory or possession of the United States;(d) a person controlled by any of the foregoing; or (e) a representative of any of the foregoing.“Anti-Money Laundering Laws” has the meaning specified in Section 12.1.12.“Auditor” means, initially,, and any nationally recognized successoror replacement selected by the General Partner from time to time, with Notice to all of the LimitedPartners.“Authorized Representative” has the meaning specified in Section 13.2.1(a).“Bank Custodian” means, initially,and any successor or replacementselected by the General Partner from time to time, with Notice to all of the Limited Partners.“Business Day” means any day on which the New York Stock Exchange is open forbusiness.“Capital Account” means the account established for each Partner as provided inSection 4.1, including such adjustments as may from time to time be made to that account inaccordance with the provisions of this Agreement.2
“Capital Call Notice” has the meaning specified in Section 3.2.1.“Capital Commitment” means, with respect to a Limited Partner, the amount of capitalthat the Limited Partner has committed to contribute to the Partnership pursuant to Section 3.1.1and, with respect to the General Partner, the amount set forth in Section 3.1.2.“Capital Contribution” means, as to any Partner, any capital contributed to thePartnership by that Partner pursuant to Section 3.2, including, for the avoidance of doubt,contributions for the payment of the Management Fee and Partnership expenses.“Closing” means a closing of the sale of Interests to investors and such investors’admission as Limited Partners, or an existing Limited Partner’s increase of its Capital Commitment.“Code” means the Internal Revenue Code of 1986, as amended (or any correspondingprovision of succeeding law).“Co-Investment Opportunity” has the meaning specified in Section 7.6.3
“Communications Act” means the U.S. Communications Act of 1934, as amended fromtime to time.“Confidential Information” means any information related tothat a Partner mayacquire from the Partnership, the General Partner, the Investment Manager, the Administrator, theissuer with respect to any Investment or any other Partner or any of their Affiliates, other thaninformation that (i) is already available through publicly available sources of information (otherthan as a result of disclosure by such Partner), (ii) was available to a Partner on a non-confidentialbasis prior to its disclosure to such Partner by such party, or (iii) becomes available to a Partner ona non-confidential basis from a third party; provided that such third party is not, to the LimitedPartner’s knowledge, bound by this Agreement or another confidentiality agreement or obligationwith the Partnership, the General Partner, the Investment Manager or their Affiliates, or withrespect to any Investment. Such Confidential Information may include information that pertainsor relates to (A) the business and affairs of any other Partner, (B) any Investments, proposedInvestments, or (C) any other Partnership matters.“Consent” means either (a) the written consent of such Partners as required or permittedto be given pursuant to this Agreement or applicable law, or (b) the act of granting any writtenconsent, as the context may require.“Covered Person” has the meaning specified in Section 12.1.8(b).“Current Income” means interest, dividend and similar income (including original issuediscount and payment of in-kind income) from Investments and guarantees (other than short-terminvestment income).“Default Payment Notice” has the meaning specified in Section 13.4.1.“Default Price” has the meaning specified in Section 13.4.1(b).“Default Purchase Price” has the meaning specified in Section 13.4.1(b).“Defaulting Limited Partner” has the meaning specified in Section 13.4.1.“Document Disclosure Law” has the meaning specified in Section 13.2.1(b).“Enumerated Person” has the meaning specified in Section 12.1.8(b).“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.“Event of Bankruptcy” means, as to any person, (a) the entry of a decree or order forrelief by a court having jurisdiction as to that person in an involuntary case under the federalbankruptcy laws, as now or hereafter constituted, or any other applicable federal or statebankruptcy or insolvency law that has not been dismissed 120 days after the commencementthereof, or the issuance of an order for the winding up or liquidation of that person’s affairs and4
the continuance of any decree or order unstayed and in effect for a period of 120 consecutive days,or (b) the commencement by that person of a voluntary proceeding seeking any decree, order orappointment referred to in clause (a) or the consent by such person to any such decree, order orappointment.“Event of Withdrawal” has the meaning specified under Section 11.1.3.“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and therules and regulations promulgated thereunder.“FATCA” has the meaning specified in Section 12.1.15.“FCC” means the U.S. Federal Communications Commission.“FCC Ownership Rules” means the rules, regulations and policies of the FCC pursuantto which the direct or indirect ownership interest by the Partnership in a person may be attributedto the Partnership or a Limited Partner for purposes of the FCC multiple or cross ownership rulesand under which the ownership by the Partnership or a Limited Partner in another business maybe subject to limitation or restriction as a result of such ownership by the Partnership in such person.“Fee Disclosure Law” has the meaning specified in Section 13.2.1(b).“Fiscal Period” shall (a) begin on the day after the close of the preceding Fiscal Period,with the first Fiscal Period beginning on the date hereof, and (b) end on the earlier of: (i) the lastday of each calendar quarter, (ii) the date as of which any distribution is deemed to have beenmade, (iii) the day preceding the effective date of any Capital Contribution, (iv) the date ofdissolution and/or termination of the Partnership in accordance with this Agreement, and (v) anyother day as may be determined by the General Partner.“Fund-Level Information” has the meaning specified in Section 13.2.1(c).“GAAP” means U.S. generally accepted accounting principles.“General Partner” meansor any person who is admitted to the Partnershipas a substitute or successor general partner in accordance with this Agreement, each in its capacityas general partner of the Partnership.5
“Indemnitee” has the meaning specified in Section 8.1.1.“Initial Closing” means the first Closing.“Initial Limited Partner” has the meaning specified in the Preamble.“Interest” means the entire ownership interest of a Partner in the Partnership at anyparticular time, including the right of that Partner to any and all benefits to which a Partner maybe entitled as provided in this Agreement, together with the obligations of such Partner to complywith all the terms and provisions of this Agreement.“Interest Income” means cash related to net interest income earned from Investments ofthe Partnership.“Investment Agreements” has the meaning specified in Section 13.16.“Investment Guidelines” means the investment guidelines set forth in Schedule Aattached hereto, which are incorporated herein by reference.“Investment Management Agreement” means the Investment Management Agreement,by and among the Partnership and theInvestment Manager.“Investment Manager” meansor any of its successors and permitted assigns,each in its capacity as investment manager of the Partnership.“Investment Period” means the period during which the Partnership may makecommitments to Investments. The Investment Period shall commence onand expire on; provided that the GeneralPartner may extend the Investment Period with the written Consent of“Investments” means the investments made and the property held by the Partnershippursuant to this Agreement, as permitted by the Investment Guidelines.6
“KRS” has the meaning specified in the Preamble.“Limited Partner” means each person who is admitted to the Partnership as a limitedpartner in accordance with the terms of this Agreement at all times prior to the completewithdrawal of that person as a limited partner in the Partnership, each in its capacity as a limitedpartner of the Partnership.“Law Firm” has the meaning specified in Section 13.24.“Losses” has the meaning specified in Section 8.1.2.“Majority in Interest of the Limited Partners” means, at any time, the Limited Partnerswhose aggregate Partnership Percentages exceed 50% of the aggregate Partnership Percentages ofall Limited Partners.“Management Fee” means the amount payable to the Investment Manager pursuant toSection 6.2.1.“Management Fee Offset” has the meaning specified in Section 6.2.2.“Net Asset Value” means, as of any measurement time, the amount determined pursuantto Section 4.10.7
“Notification” or “Notice” means a writing containing the information required by thisAgreement to be communicated to any person, sent or delivered in accordance with Section 13.7.A person will be considered to “Notify” or have “Notified” another person if it gives the otherperson a Notice that meets the foregoing definition.“OFAC” has the meaning specified in Section 12.1.12.“Official Entity” has the meaning specified in Section 12.2.2.“Open Records Act” has the meaning specified in Section 13.2.1(b).“Organizational Expenses” has the meaning specified in Section 6.1.3(f).“Original Agreement” has the meaning specified in the Recitals.“Other Proceeds” means proceeds from Investments other than Interest Income.“Partner” means the General Partner or any Limited Partner.“Partnership” meansL.P., a Delaware limited partnership.“Partnership Percentage” means, for each Partner, the proportion, expressed as apercentage, that the amount of that Partner’s Capital Account balance bears as of the beginning ofany Fiscal Period to the total of all Partners’ Capital Account balances as of the beginning of theFiscal Period (after giving effect to the adjustments provided in Section 4.4.1).“Partnership Tax Audit Rules” means Code Sections 6221 through 6241, as amended bythe Bipartisan Budget Act of 2015, together with any guidance issued thereunder or successorprovisions and any similar provision of state or local tax laws.8
“Portfolio Company” means any entity in which the Partnership has invested other anyspecial purpose vehicle formed by the General Partner, the Partnership or their Affiliates forpurposes of facilitating an Investment.“Prime Rate” means the publicly announced prime commercial lending rate per annum ofJ.P. Morgan Chase Bank, New York, New York, or its successor (or if such bank’s prime rate isdiscontinued or no longer publicly available for any reason, then the publicly announced primerate, or reference rate, of such regional or national bank as the General Partner may select forpurposes of this Agreement by Notice to the Limited Partners).“Proceedings” has the meaning specified in Section 8.1.2.9
“Recallable Amount” means as of any calculation date (i) any distributions made to thePartners that representplus (ii) without duplication, any distributions made to thePartners equal to the amount ofas of such date.“Regulated Company” means any person that, directly or indirectly, owns, controls,operates or holds an attributable interest in a broadcast radio or television station, a cable televisionor satellite master antenna television system, a “daily newspaper” (as such term is defined inSection 73.3555 of the FCC’s rules and regulations, as amended from time to time), a broadbandradio service or any other media or wireless communications entity operated pursuant to a licensegranted by the FCC and subject to the provisions of Section 310 of the Communications Act orthe FCC Ownership Rules.“SEC” means the U.S. Securities and Exchange Commission.“Subscription Agreement” means the subscription agreement entered into between eachLimited Partner and the Partnership.“Subscription Facility” means a credit facility secured by the Partnership’s right to makecapital calls and/or the Partnership’s entitlement to receive Capital Contributions from the Partnersand related rights, including the exercise of remedies over the deposit accounts into which theproceeds of Capital Contributions are deposited, and not secured by the Investments.“Tax Distribution” means a distribution to the General Partner pursuant to Section 4.6.2.“Tax Information” has the meaning specified in Section 10.4.3.“Tax Matters Partner” means the General Partner in the capacity described inSection 10.8.“Transfer” has the meaning specified in Section 9.1.“Transferee” means the recipient of a Transfer of an Interest, including a pledgee of orholder of a security interest in an Interest.“Transferor” means a Limited Partner who Transfers an Interest pursuant to Article 9.10
“Value” means, as of any measurement time, the amount determined pursuant toSection 4.12.“Withholding Taxes” has the meaning specified in Section 4.7.2.ARTICLE 2GENERAL PROVISIONS2.1Formation. The parties hereby continue the Partnership as a limited partnershippursuant to the provisions of the Act. The Partners and the Initial Limited Partner hereby amendand restate the Original Agreement in its entirety as set forth herein and continue the Partnership.Upon its execution of this Agreement, the General Partner shall continue as the general partner ofthe Partnership.2.2Filing of Certificates. The General Partner is hereby authorized to prepare, file,record and publish whatever certificates and other documents may be necessary or, in the GeneralPartner’s judgment, appropriate to comply with the requirements for the organization andoperation of a limited partnership under the Act as in effect from time to time, as well as anyfurther documents the General Partner deems necessary or appropriate to comply with the laws ofany other jurisdiction in which the Partnership may do business.2.3Name. The Partnership’s name will be “L.P.” orsuch other name or names as the General Partner may from time to time designate with Notice tothe Limited Partners.2.4Principal Office. The Partnership’s principal office will be located at, or whatever other place the General Partner f
cause the direction of the management and policies of a person, whether by contract or otherwise. "Agreement" means this Amended and Restated Agreement of Limited Partnership, as it may be amended from time to time. "Alien" means (a) a person that is a citizen of a country other than the United States; (b) a
