Exhibit 4.7
FORM OF LIMITED PARTNERSHIP AGREEMENT
OF
AMERICAN SEAFOODS HOLDINGS, L.P.
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY BE
OFFERED AND SOLD ONLY IF SO REGISTERED OR IN A MANNER
EXEMPT FROM REGISTRATION UNDER SUCH ACT. THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ALSO ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH HEREIN. NO
TRANSFER OF THESE SECURITIES WILL BE MADE ON THE BOOKS OF
THE PARTNERSHIP UNLESS ACCOMPANIED BY EVIDENCE OF
COMPLIANCE WITH THE TERMS OF THIS AGREEMENT.
Dated as of
____________, 2003
TABLE OF CONTENTS
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ARTICLE I
DEFINED TERMS
1.1 Defined Terms............................................................1
ARTICLE II
GENERAL PROVISIONS
2.1 Formation................................................................1
2.2 Name.....................................................................1
2.3 Purpose and Business.....................................................2
2.4 Powers...................................................................2
2.5 Location of the Principal Place of Business..............................2
2.6 Registered Agent and Registered Office...................................3
2.7 Term.....................................................................3
2.8 Recordation and Filing...................................................3
ARTICLE III
CONTRIBUTIONS TO CAPITAL AND ISSUANCES OF ADDITIONAL INTERESTS
3.1 Admission and Capital Contributions......................................3
3.2 Issuances of Additional Interests........................................4
3.3 No Third Party Beneficiary...............................................4
3.4 Capital Accounts.........................................................5
3.5 No Interest; No Return...................................................5
ARTICLE IV
DISTRIBUTIONS
4.1 Distributions............................................................5
4.2 Withholdings.............................................................7
ARTICLE V
ALLOCATIONS; TAX AND ACCOUNTING MATTERS
5.1 Allocations..............................................................8
5.2 Allocation of Tax Items..................................................8
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TABLE OF CONTENTS
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5.3 Books of Account.........................................................9
5.4 Reports..................................................................9
5.5 Tax Elections and Returns................................................9
5.6 Tax Matters Partner......................................................9
ARTICLE VI
RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER
6.1 Expenditures by Partnership.............................................10
6.2 Authority, Powers and Duties of General Partner.........................10
6.3 Compensation of the General Partner.....................................11
6.4 Indemnification.........................................................11
6.5 Limitation on Liability.................................................12
6.6 Power of Attorney.......................................................12
ARTICLE VII
RIGHTS AND OBLIGATIONS OF THE Limited PARTNERS
7.1 No Participation in Control.............................................13
7.2 Bankruptcy of a Limited Partner.........................................13
7.3 No Withdrawal...........................................................13
7.4 Management Rights of VCOCs..............................................13
ARTICLE VIII
TRANSFER OF UNITS; REGULATORY MATTERS
8.1 Transfers by Partners Generally.........................................14
8.2 Regulatory Matters......................................................15
8.3 Remedies................................................................15
ARTICLE IX
DISSOLUTION, LIQUIDATION, WINDING-UP AND TERMINATION
9.1 Causes of Dissolution...................................................16
9.2 Winding Up and Liquidation..............................................16
9.3 Documentation of Dissolution and Termination............................17
9.4 Waiver of Partition.....................................................17
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ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 Representations and Warranties of the Limited Partners..................17
10.2 Representations and Warranties of the General Partner...................18
ARTICLE XI
AMENDMENTS TO AGREEMENT
11.1 Amendments..............................................................19
ARTICLE XII
GENERAL PROVISIONS
12.1 Notices.................................................................19
12.2 Successors..............................................................20
12.3 Effect and Interpretation...............................................20
12.4 Counterparts............................................................20
12.5 Partners Not Agents.....................................................20
12.6 Entire Understanding; Etc...............................................20
12.7 Severability............................................................20
12.8 Construction of Agreement...............................................20
12.9 WAIVER OF JURY TRIAL....................................................21
12.10 Incorporation of Exhibits and Glossary..................................21
12.11 Assurances..............................................................21
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FORM OF LIMITED PARTNERSHIP AGREEMENT
OF
AMERICAN SEAFOODS HOLDINGS, L.P.
THIS LIMITED PARTNERSHIP AGREEMENT (this "Agreement") of American Seafoods
Holdings, L.P. (the "Partnership") is made and entered into as of the __ day of
_________, 2003, by and among each of the undersigned parties to this Agreement,
as Partners, on the terms and conditions set forth herein.
WHEREAS, the Partnership was originally organized as a limited liability
company under the laws of the State of Delaware under the name "American
Seafoods Holdings LLC" and was converted into a limited partnership in
accordance with Sections 17-217(a) and (b) of the Act by the filing of the
Certificate of Conversion and the Certificate of Formation with the Secretary of
State of the State of Delaware effective as of _________, 2003;
WHEREAS, the Partners wish to set forth certain rights and obligations
relating to their respective ownership interests in the Partnership in this
Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINED TERMS
1.1 Defined Terms. Attached to this Agreement immediately following the
signature pages is a glossary of defined terms (the "Glossary of Defined
Terms"). Each capitalized term used in this Agreement either is defined in the
Glossary of Defined Terms, or the location of its definition is cross-referenced
in the Glossary of Defined Terms.
ARTICLE II
GENERAL PROVISIONS
2.1 Formation. The Partnership has been formed as a limited partnership
under the Act. The rights and liabilities of the Partners shall be as provided
in the Act, except as otherwise expressly provided herein.
2.2 Name. The name of the Partnership, and the name under which the
business of the Partnership shall be conducted, shall be American Seafoods
Holdings,
L.P. The words "Ltd.", "Limited Partnership" or such other designation as the
General Partner shall deem appropriate shall be included in the name where
necessary to comply with the laws of any jurisdiction. The General Partner may
change the name of the Partnership or adopt such trade or fictitious names for
the Partnership as it may determine from time to time, provided that the
Partnership complies with all relevant state laws relating to the use of
fictitious and assumed names.
2.3 Purpose and Business. The purpose of the Partnership is to acquire,
hold and finance the LLC Interests, to manage and supervise such investments and
the LLC, to sell, distribute or otherwise dispose of such investments and to
engage in any and all activities incidental or ancillary thereto.
2.4 Powers. Subject, among the Partners, to the limitations set forth in
this Agreement, the Partnership shall have all powers necessary, suitable or
convenient for the accomplishment of the purposes of the Partnership as set
forth in Section 2.3, including, without limitation, the following:
(a) to acquire, hold, sell or otherwise dispose of the LLC Interests, and
manage and supervise such investments and the LLC;
(b) to make and perform all contracts, enter into all agreements 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;
(c) to issue Units or other equity interests in the Partnership in one or
more classes, or one or more series of any such classes;
(d) to borrow money for any purpose, and to issue notes and other
evidences of indebtedness; and
(e) otherwise to have all the powers available to it as a limited
partnership under applicable law.
Notwithstanding the foregoing, without the consent of ASLP, the General
Partner shall not cause the Partnership to (i) acquire any assets other than the
LLC Interests, (ii) incur any liabilities other than the Holdings Notes and the
guarantee of the senior indebtedness of the LLC, (iii) dispose of the LLC
Interests or (iv) engage in any activities unrelated to its ownership of the LLC
Interests and supervision of the LLC's business.
2.5 Location of the Principal Place of Business. The location of the
principal place of business of the Partnership shall be at 0000 Xxxxx Xxxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxxxx 00000, or such location as the General Partner
may from time to
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time select. The General Partner shall give prompt notice of any such change to
each Limited Partner on or before the date of any such change.
2.6 Registered Agent and Registered Office. The registered agent of the
Partnership in the State of Delaware shall be The Corporation Trust Company,
which maintains an office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or
such other Person as the General Partner may from time to time select. The
registered office of the Partnership in the State of Delaware shall be c/o The
Corporation Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, or
such other location as the General Partner may from time to time select.
2.7 Term. The term of the Partnership shall continue until the
Partnership is dissolved in accordance with the provisions of Article IX and the
Act. The existence of the Partnership as a separate legal entity shall continue
until the cancellation of the Certificate of Formation.
2.8 Recordation and Filing. The General Partner shall execute, file and
record, in a timely manner, any and all certificates, notices, statements and
other documents required under the Act or any other applicable law of any
jurisdiction where the Partnership maintains an office or does business.
ARTICLE III
CONTRIBUTIONS TO CAPITAL AND ISSUANCES OF ADDITIONAL
INTERESTS
3.1 Admission and Capital Contributions.
(a) Each Partner has made (or is deemed to have made) a Capital
Contribution in the amount set forth opposite its name on Schedule A, and, upon
its execution of a counterpart signature page to this Agreement, shall be
admitted to the Partnership as a member of the Partnership (or shall continue as
a Partner to the extent previously admitted). In no event shall a Partner be
required to contribute capital to the Partnership in excess of its Capital
Contribution. In exchange for its Capital Contribution, each Partner shall
receive the number of Units set forth opposite such Partner's name on Schedule
A.
(b) On the date hereof, a portion of ASLP's Units shall be designated as
Junior Common Units and Junior Preferred Units, as set forth on Schedule A. Upon
the occurrence of a Conversion Event, each Junior Common Unit shall be converted
into a Regular Unit, and each Junior Preferred Unit shall be redeemed in
exchange for a Holdings Note having a principal amount equal to the face amount
of such Junior Preferred Unit. A "Conversion Event" means the first to occur of
the following: (i) the
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date of release of the Partnership's Financial Statements for calendar year
2004, if in calendar year 2003 the Partnership's Adjusted EBITDA was at least
$119.7 million; (ii) the date of release of the Partnership's Financial
Statements for any calendar year after 2003, if in such calendar year (x) the
Partnership's Adjusted EBITDA was at least $119.7 million and (y) the General
Partner received sufficient distributions from the Partnership to enable it to
pay monthly distributions on its common shares at a rate of $0.79 per share per
year (determined solely by reference to the distributions the General Partner
would have received from the Partnership had all Junior Units been converted or
redeemed as contemplated by this Section 3.1(b)); or (iii) _____________, 2008.
Notwithstanding the foregoing, the Junior Units will not be converted or
redeemed until all deferred and unpaid interest, if any, on the Holdings Notes
has been paid in full.
3.2 Issuances of Additional Interests.
(a) In the event that the General Partner acquires any cash or other
property by reason of issuing common shares or IDS Notes (other than ASLP
partnership units), the General Partner shall (i) to the extent such cash or
other property was acquired in exchange for its common shares (whether issued
separately or together with IDS Notes), contribute such cash or other property
to the Partnership in exchange for a number of additional Regular Units equal to
the number of common shares issued in such transaction and (ii) to the extent
that such cash or other property was acquired in exchange for IDS Notes,
transfer such cash or other property to the Partnership in exchange for Holdings
Notes having terms (including principal amount) that are substantially identical
to the IDS Notes issued in such transaction.
(b) In the event that ASLP issues additional ASLP regular partnership
units upon the exercise of any ASLP A options or ASLP E options (in each case as
granted pursuant to the ASLP Year 2000 Unit Option Plan, as amended) which are
in existence on the date hereof, the Partnership shall issue to ASLP such number
of additional Regular Units and such principal amount of additional Holdings
Notes, so that the ratio of (i) the total number of ASLP regular partnership
units to the total number of Regular Units owned by ASLP and (ii) the total
number of ASLP regular partnership units to the aggregate principal amount of
Holdings Notes owned by ASLP is the same before and after such issuance of
additional ASLP regular partnership units. In connection with any such exercise
and issuance, ASLP shall pay to the Partnership, as purchase price for such
Regular Units and Holdings Notes, any amounts ASLP receives by way of exercise
price on such exercised ASLP options.
3.3 No Third Party Beneficiary. No creditor or other third party having
dealings with the Partnership shall have the right to enforce the right or
obligation of any Partner to make Capital Contributions or to pursue any other
right or remedy hereunder or at law or in equity, it being understood and agreed
that the provisions of this
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Agreement shall be solely for the benefit of, and may be enforced solely by, the
parties hereto and their respective successors and assigns.
3.4 Capital Accounts.
(a) The Partnership shall establish a separate capital account (a
"Capital Account") for each Partner. Capital Accounts shall consist of such
Partner's initial capital contribution to the Partnership, (i) increased by (A)
any additional actual or constructive capital contributions by such Partner to
the Partnership and (B) any items of income or gain allocated to the Capital
Account of such Partner pursuant to Article V, and (ii) decreased by (A) any
actual or constructive distributions to such Partner and (B) any items of loss
or deduction allocated to the Capital Account of such Partner pursuant to
Article V.
(b) Capital Accounts shall be determined and maintained in accordance
with Section 704(b) of the Code and Section 1.704-1(b)(2)(iv) of the Regulations
promulgated thereunder, with such adjustments as may be required thereby. For
purposes of maintaining and determining Capital Accounts, all property
distributed in kind by the Partnership to a Partner shall be charged to that
Partner's Capital Account at the fair market value of such property on the date
of distribution, and all property contributed in kind by a Partner to the
Partnership shall be credited to that Partner's Capital Account at the fair
market value of such property on the date of contribution.
(c) No Partner shall have any obligation to restore a deficit balance in
its Capital Account.
3.5 No Interest; No Return. Except as provided herein, no Partner shall
be entitled to interest on its Capital Contribution or on such Partner's Capital
Account. Except as provided herein or by law, no Partner shall have any right to
demand or receive the return of its Capital Contribution from the Partnership.
ARTICLE IV
DISTRIBUTIONS
4.1 Distributions.
(a) To the extent that the Partnership has cash available to it, and
after setting aside appropriate reserves, the Partnership shall distribute such
cash promptly following receipt thereof to the Partners as provided in this
Section 4.1. For so long as any Junior Units are outstanding, such distributions
shall be made in accordance with Sections 4.1(b) and 4.1(c). In the event there
are no Junior Units outstanding, such distributions shall be made in accordance
with Section 4.1(d). Any distributions shall be made to the persons
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listed as the holders of record of Units as of the 25th day of the month in
which such distribution is made (or, in the case of distributions made prior to
the 25/th/ day of the month in which distributed, the 25/th/ day of the
preceding month). Notwithstanding anything to the contrary in this Agreement,
the Partnership shall not make a distribution to any Partner if such
distribution would violate the Act or other applicable law.
(b) At the end of each calendar month, the Partnership shall distribute
pro rata among the holders of Regular Units an amount of cash equal to the
lesser of (x) an amount sufficient to permit the General Partner to make monthly
distributions at a rate of $0.79 per year per common share of the General
Partner and (y) the Partnership's cash available for distribution. Any cash
remaining after such distribution shall be retained by the Partnership.
(c) At the end of each calendar quarter, following the distribution
contemplated by Section 4.1(b) for the last calendar month in such quarter, any
cash available for distribution shall be distributed as follows:
(i) First, pro rata to the holders of Regular Units, until the
General Partner has received an amount equal to the amount, if any, by
which the total monthly distributions with respect to the General Partner's
common shares for the twelve month period (or shorter period commencing on
the date hereof) ending on such date were less than $0.79 per share (pro
rated for any period consisting of less than twelve months);
(ii) Second, pro rata to the holders of Junior Preferred Units,
until such holders have received cumulative distributions for the twelve
month period (or shorter period commencing on the date hereof) ending on
such date at a rate of [13/12]% per month on the face amount of the Junior
Preferred Units (without compounding); and
(iii) Third, pro rata to the holders of Junior Common Units, until
such holders have received cumulative distributions for the twelve month
period (or shorter period commencing on the date hereof) ending on such
date with respect to each Junior Common Unit equal to the cumulative
distributions made with respect to a Regular Unit for the same period.
Any cash remaining after making the distributions contemplated by the
preceding clauses of this Section 4.1(c) shall be retained by the Partnership,
or, in the good faith discretion of the General Partner, distributed in whole or
in part to the holders of Regular Units and Junior Common Units pro rata in
proportion to their Units.
(d) In the event there are no Junior Units outstanding, all cash
available for distribution shall be distributed pro rata among the holders of
Regular Units.
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4.2 Withholdings.
(a) Notwithstanding any other provision of this Agreement, each Partner
authorizes the Partnership to withhold and to pay over, or otherwise pay, any
withholding or other taxes payable by the Partnership or any of its Affiliates
(pursuant to the Code or any provision of U.S. federal, state, local or foreign
tax law) with respect to such Partner or as a result of such Partner's
participation in the Partnership; and if and to the extent that the Partnership
shall be required to withhold or pay any such withholding or other taxes, such
Partner shall be deemed for all purposes of this Agreement to have received a
payment from the Partnership as of the time such withholding or other tax is
required to be paid, which payment shall be deemed to be a distribution with
respect to such Partner's interest in the Partnership. To the extent that such
deemed distribution to such Partner (or any successor to such Partner) for any
taxable period exceeds the distributions that such Partner would have received
for such period but for such withholding, such excess shall be treated as an
interest-free advance to such Partner. Amounts so treated as advanced to any
Partner shall be repaid by such Partner to the Partnership within thirty (30)
days after the Partnership delivers a written request to such Partner for such
repayment; provided, however, that if any such repayment is not made, the
Partnership may (without prejudice to any other rights of the Partnership)
collect such unpaid amounts from any subsequent distributions that otherwise
would be made to such Partner.
(b) If the Partnership makes a distribution in kind and such distribution
is subject to withholding or other taxes payable by the Partnership on behalf of
any Partner (the "Withheld Amount"), the General Partner shall notify such
Partner as to the extent (if any) of the Withheld Amount and such Partner shall
make a prompt payment to the Partnership of the Withheld Amount by wire transfer
(it being understood that, notwithstanding anything else herein to the contrary,
the Partnership shall refrain from distributing such property having a value of
at least the Withheld Amount until the Partnership has received a payment of
such Withheld Amount).
(c) Any withholdings referred to in this Section 4.2 shall be made at the
maximum applicable statutory rate under the applicable tax law unless the
Partnership shall have received an opinion of counsel or other evidence,
satisfactory to the General Partner, to the effect a lower rate is applicable,
or that no withholding is applicable.
(d) If the Partnership receives a distribution from or in respect of
which tax has been withheld, the Partnership shall be treated as having received
cash in an amount equal to the amount of such withheld tax, and each Partner
shall be treated as having received as a distribution the portion of such amount
that is attributable to such Partner's interest in the Partnership as equitably
determined by the General Partner.
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ARTICLE V
ALLOCATIONS; TAX AND ACCOUNTING MATTERS
5.1 Allocations. Each item of income, gain, loss, deduction and credit of
the Partnership (determined in accordance with U.S. tax principles as applied to
the maintenance of capital accounts) shall be allocated among the Capital
Accounts of the Partners for each fiscal year in a manner that as closely as
possible gives economic effect to the provisions of Section 4.1 and Section 9.2.
5.2 Allocation of Tax Items.
(a) Each item of income, gain, loss, deduction and credit recognized by
the Partnership shall be allocated among the Partners for U.S. federal, state
and local income tax purposes in the same manner that each such item is
allocated to the Partners' Capital Accounts or as otherwise provided herein,
provided that the General Partner may, with the consent of ASLP, adjust such
allocations as may be necessary or desirable to ensure that such allocations are
in accordance with the interests of the "partners in the partnership" within the
meaning of the Code and the Regulations. Subject to Section 5.6, all matters
concerning allocations for U.S. federal, state and local and non-U.S. income tax
purposes, including accounting procedures, not expressly provided for by the
terms of this Agreement shall be determined in good faith by the General
Partner.
(b) If any portion of gain from the sale of property is treated as gain
which is ordinary income by virtue of the application of Sections 1245 or 1250
of the Code ("Affected Gain"), then (A) such Affected Gain shall be allocated
among the Partners in the same proportion that such Partners benefited from the
depreciation and amortization deductions giving rise to the Affected Gain and
(B) other tax items of gain of the same character that would have been
recognized, but for the application of Sections 1245 and/or 1250 of the Code,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to Clause (A) so that, to the extent possible, the other Partners are
allocated the same amount and type of capital gain that would have been
allocated to them had Sections 1245 and/or 1250 of the Code not applied. For
purposes hereof, in order to determine the proportionate allocations of
depreciation and amortization deductions for each fiscal year or other
applicable period, such deductions shall be deemed allocated on the same basis
as the items of income, gain, loss and deduction for such period.
(c) In accordance with Section 704(c) of the Code and the Regulations
promulgated thereunder, items of income, gain, loss and deduction with respect
to any property contributed to the capital of the Partnership shall, solely for
tax purposes, be allocated among the Partners so as to take account of any
variation between the adjusted basis of such property to the Partnership for
U.S. federal income tax purposes and its fair
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market value. The Partners agree that any items of income, gain, loss or
deduction to be allocated among the Partners for tax purposes pursuant to
Section 704(c) and Section 1.704-3 of the Regulations (including any "reverse
704(c) allocations" described in Section 1.704-3(a)(6)(i) of the Regulations)
shall be allocated using the "traditional method" as defined in Section
1.704-3(b) of the Regulations. Each Partner shall provide to the Partnership
upon request such information or forms that the General Partner may reasonably
request with respect to the Partnership's compliance with applicable tax laws.
5.3 Books of Account. At all times during the continuance of the
Partnership, the General Partner shall maintain or cause to be maintained full,
true, complete and correct books of account in accordance with generally
accepted accounting principles wherein shall be entered particulars of all
monies, goods or effects belonging to or owing to or by the Partnership, or
paid, received, sold or purchased in the course of the Partnership's business,
and all of such other transactions, matters and things relating to the business
of the Partnership as are usually entered in books of account kept by persons
engaged in a business of a like kind and character. In addition, the Partnership
shall keep all records as required to be kept pursuant to the Act. The books and
records of account shall be kept at the principal office of the Partnership, and
each Partner shall at all reasonable times and for any purpose reasonably
related to such Partner's interest as a member of the Partnership have access to
such books and records and the right to inspect the same.
5.4 Reports. The Partnership shall cause to be submitted to the Partners
on an annual basis copies of Financial Statements for the Partnership, together
with any reports thereon and all supplementary schedules and information.
5.5 Tax Elections and Returns. Except as otherwise provided in this
Agreement, all elections required or permitted to be made by the Partnership
under any applicable tax law shall be made by the General Partner in its sole
discretion.
5.6 Tax Matters Partner. The General Partner is hereby designated as the
"tax matters partner" within the meaning of Section 6231(a)(7) of the Code for
the Partnership. Notwithstanding the foregoing, the General Partner shall not do
any of the foregoing without the prior consent of ASLP:
(i) make, change or revoke any income tax election with respect to
the Partnership, including any election to change the classification of the
Partnership for any income tax purposes;
(ii) file any income tax return with respect to the Partnership, the
content of all such returns being subject to the prior approval of ASLP; or
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(iii) settle or compromise any tax audit or other administrative or
judicial proceeding relating to taxes of the Partnership.
ARTICLE VI
RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER
6.1 Expenditures by Partnership. The General Partner is hereby authorized
to pay compensation for accounting, administrative, legal, technical, management
and other services rendered to the Partnership or any Entity Controlled by the
Partnership. All of the aforesaid expenditures shall be made on behalf of the
Partnership and the General Partner shall be entitled to reimbursement by the
Partnership for any expenditures (including Administrative Expenses) incurred by
it on behalf of the Partnership which shall be made other than out of the funds
of the Partnership. The Partnership shall also assume, and pay when due, all
Administrative Expenses.
6.2 Authority, Powers and Duties of General Partner. Subject, among the
Partners, to the limitations set forth in this Agreement, the General Partner
shall have the duty and the exclusive right to manage and control the business
and affairs of the Partnership and shall have all rights, powers and authority
of a general partner under the Act and otherwise under applicable law. Without
limiting the generality of the foregoing, the General Partner shall have all
rights, powers and authority to do for, on behalf of and in the name of the
Partnership all things that it deems necessary, proper or desirable to carry out
its duties, including, without limitation, the right, power and authority from
time to time to incur and repay indebtedness, liabilities and obligations, to
pay fees and expenses and to make other expenditures; to open, maintain and
close accounts with brokers and give instructions or directions in connection
therewith; to open, maintain and close bank accounts and draw checks or other
orders for the payment of money; to buy, sell, exchange, or dispose of all
securities, checks, money and other assets or liabilities of the Partnership; to
hire employees, investment bankers, attorneys, accountants, consultants,
custodians, contractors and other agents, and pay them compensation; to enter
into, make and perform such contracts, agreements and other undertakings, and do
any and all such other acts required of the Partnership with respect to the LLC
Interests, including, but not limited to, entering into agreements with respect
to such interests, which agreements may contain such terms, conditions and
provisions as the General Partner in its sole discretion shall approve; to xxx,
prosecute, settle or compromise all claims against third parties, compromise,
settle or accept judgment with respect to claims against the Partnership and
execute all documents and make all representations, admissions and waivers in
connection therewith; and to enter into, execute, acknowledge and deliver any
and all contracts, agreements or other instruments to effectuate any or all of
the foregoing. Without limiting the generality of the foregoing, the General
Partner is authorized to cause the Partnership to hold the LLC Interests, to
dispose of the LLC
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Interests, to manage the business of the LLC and its Affiliates, and to enter
into such contracts and agreements in connection therewith as the General
Partner may determine to be necessary or desirable in its sole discretion. All
determinations, acts and designations to be made by the Partnership or the
General Partner hereunder shall be made by the General Partner on a good faith
basis consistent with its fiduciary duties. Third parties dealing with the
Partnership are entitled to rely conclusively on the authority of the General
Partner under the Act and as set forth in this Agreement.
6.3 Compensation of the General Partner. The General Partner shall not be
entitled to any compensation for services rendered to the Partnership solely in
its capacity as General Partner, except for reimbursement for expenses actually
incurred by it as provided in Section 6.1.
6.4 Indemnification.
(a) The Partnership shall, to the fullest extent permitted by applicable
law, indemnify any and all Indemnitees from and against any and all losses,
claims, damages, liabilities, costs and expenses (including attorneys' fees and
costs), judgments, fines, settlements, and other amounts arising from any and
all claims, demands, actions, suits or proceedings, civil, criminal,
administrative or investigative, that relate to the operations of the
Partnership in which any Indemnitee may be involved, or is threatened to be
involved, as a party or otherwise, unless it is established that an act or
omission of the Indemnitee was material to the matter giving rise to the claim,
demand, action, suit or proceeding and (i) was committed in bad faith, (ii) was
the result of active and deliberate dishonesty, or (iii) constituted gross
negligence or willful misconduct or a willful breach of this Agreement or any
other agreement to which such Indemnitee is a party. Any indemnification
pursuant to this Section 6.4 shall be made only out of the Partnership Assets,
and no Partner shall be required to contribute or advance funds to the
Partnership to enable the Partnership to satisfy its obligations under this
Section 6.4.
(b) Reasonable expenses incurred by an Indemnitee who is a party to a
proceeding shall be paid or reimbursed by the Partnership in advance of the
final disposition of the proceeding upon receipt by the Partnership of (i) a
written affirmation by the Indemnitee of the Indemnitee's good faith belief that
it is entitled to indemnification by the Partnership pursuant to this Section
6.4 with respect to such expenses and proceeding and (ii) a written undertaking
by or on behalf of the Indemnitee, to and in favor of the Partnership, wherein
the Indemnitee agrees to repay the amount if it shall ultimately be adjudged not
to have been entitled to indemnification under this Section 6.4.
(c) The indemnification provided by this Section 6.4 shall be in addition
to any other rights to which an Indemnitee or any other Person may be entitled
under any agreement, as a matter of law or otherwise.
11
(d) The Partnership may purchase and maintain insurance, on behalf of the
Indemnitees and such other Persons as the General Partner shall determine,
against any liability that may be asserted against or expenses that may be
incurred by such Person in connection with the Partnership's activities,
regardless of whether the Partnership would have the obligation to indemnify
such Person against such liability under the provisions of this Agreement. The
Partnership shall purchase such insurance if it is available on terms the
General Partner concludes are reasonable.
(e) The provisions of this Section 6.4 are for the benefit of the
Indemnitees, their heirs, successors, assigns and administrators and shall not
be deemed to create any rights for the benefit of any other Persons.
6.5 Limitation on Liability. The liability of the Indemnitees to the
Partnership, the General Partner and the other Partners is hereby limited to the
fullest extent permitted by applicable law, except that such liability shall not
be limited to the extent that a judgment or other final adjudication adverse to
the person is entered in a proceeding based on a finding in the proceeding that
the person's action, or failure to act, was material to the cause of action
adjudicated in the proceeding and (i) was committed in bad faith, (ii) was the
result of active and deliberate dishonesty or (iii) constituted gross negligence
or willful misconduct or a willful breach of this Agreement or any other
agreement to which such person is a party. The Limited Partners expressly
acknowledge that the General Partner is acting on behalf of the Partnership. To
the fullest extent permitted by law, the General Partner shall not be obligated
to consider the separate interest of any Partner or other Person (including the
tax consequences to any Partner or other Person) in deciding, pursuant to its
authority granted under this Agreement, whether to cause the Partnership to take
(or decline to take) any actions that are in the interest of the Partnership. To
the fullest extent permitted by law, the General Partner shall not be liable for
monetary damages for losses sustained, liabilities incurred, or benefits not
derived by the Partners in connection with such decisions.
6.6 Power of Attorney.
(a) Each Limited Partner hereby appoints the General Partner its agent
and attorney-in-fact, to execute on such Limited Partner's behalf, any and all
amendments to this Agreement that are not prohibited pursuant to Article XI.
(b) No Limited Partner personally shall be liable in respect of any
action taken by the General Partner outside the authority granted pursuant to
the foregoing power of attorney. The foregoing power of attorney shall not be
used in any manner inconsistent with the terms of this Agreement, the
characterization and treatment of the Partnership as a limited partnership, or
the characterization and treatment of the Limited Partners as members that are
not managing members.
12
(c) It is expressly intended by the Limited Partners that the foregoing
power of attorney is coupled with an interest, is irrevocable, and shall survive
the death, incapacity, dissolution, bankruptcy or insolvency of any Limited
Partner.
ARTICLE VII
RIGHTS AND OBLIGATIONS OF THE Limited PARTNERS
7.1 No Participation in Control. No Limited Partner shall participate in
the control of the Partnership's business, transact any business in the
Partnership's name, or have the power to sign documents for or otherwise bind
the Partnership; provided, however, the Limited Partners shall have the consent,
voting and other rights expressly provided herein.
7.2 Bankruptcy of a Limited Partner. The Bankruptcy of any Limited
Partner shall not cause such Partner to cease to be a member of the Partnership
and the Partnership shall continue without dissolution.
7.3 No Withdrawal. No Partner may withdraw from the Partnership without
the prior consent of the General Partner, other than as expressly provided in
this Agreement.
7.4 Management Rights of VCOCs. Each VCOC Partner shall have the
following management rights:
(a) Each VCOC Partner shall have the right to designate a representative
(each, a "VCOC Observer") to receive notice of and to attend and observe all
meetings of the governing body of the General Partner and of any operating
subsidiary of the Partnership. A VCOC Observer shall not be entitled to vote on
any matter. The designation of a VCOC Observer, or any replacement thereof, or
the removal thereof, shall be made by delivery of a notice to the Partnership.
(b) A VCOC Observer shall be entitled to receive copies of all materials
which are provided to the members of the governing body of the General Partner,
including management reports, projections and similar items.
(c) A VCOC Observer shall have the right to visit the facilities of the
Partnership and its subsidiaries, to discuss the performance of the Partnership
and its subsidiaries and to advise and consult with the members of senior
management of the Partnership and its subsidiaries on such matters as such VCOC
Observer shall specify. It is understood, however, that the right to conduct the
business of the Partnership and its subsidiaries shall at all times be vested
exclusively in their respective managements.
13
(d) A VCOC Observer shall for any reasonable purpose related to the
designating VCOC Partner's interest in the Partnership have reasonable access to
and the right to inspect the books and records of the Partnership and its
subsidiaries to the same extent as a member of the governing body of the General
Partner, and shall receive at least quarterly financial statements, operating
reports, budgets and like reports relating to the performance of the Partnership
and its subsidiaries which are prepared for senior management and members of
such governing body.
(e) All non-public information concerning the Partnership and its
subsidiaries received by a VCOC Observer shall be maintained in strictest
confidence and shall be used for no purposes other than in the exercise of the
rights of a VCOC Partner as a Partner and the rights of a VCOC Observer to
observe, advise and consult.
ARTICLE VIII
TRANSFER OF UNITS; REGULATORY MATTERS
8.1 Transfers by Partners Generally.
(a) A Partner may sell, transfer, assign or otherwise dispose of Units
only with the consent of each of the other Partners, and (in each case)
otherwise in accordance with this Article VIII. Any purported sale, assignment,
transfer or conveyance by any Partner (including any assignee thereof) of any
Units not made strictly in accordance with the provisions of this Article VIII
shall be entirely null and void ab initio.
(b) Each Partner agrees that it will not pledge, hypothecate or otherwise
encumber or transfer any Units or enter into any Swap Transaction with respect
to any Units prior to delivery to the Partnership of evidence in form and
substance reasonably satisfactory to the Partnership to the effect that such
pledge, hypothecation, encumbrance, transfer, or Swap Transaction will (i) be in
compliance with this Agreement and the Securities Act and applicable state
securities laws, (ii) not result in the Partnership being treated as a "publicly
traded partnership" within the meaning of the Code, (iii) not cause a
termination of the Partnership for U.S. federal income tax purposes, and (iv)
not result in an increase in the Foreign Ownership Percentage of the
Partnership.
(c) Each Partner making a pledge, hypothecation, encumbrance or transfer
or entering into a Swap Transaction permitted hereunder shall be required to pay
any and all filing and recording fees, fees of counsel and accountants and other
costs and expenses reasonably incurred by the Partnership as a result of such
pledge, hypothecation, encumbrance or transfer or such Swap Transaction.
(d) No pledge, hypothecation, encumbrance, transfer or Swap Transaction
by a Partner permitted hereunder shall relieve the transferor Partner of any of
its obligations
14
or liabilities under this Agreement arising prior to or in connection with
consummation of such pledge, hypothecation, encumbrance or transfer or Swap
Transaction.
(e) Notwithstanding anything in this Agreement to the contrary, if a
Partner transfers all of its Units pursuant to this Article VIII, the transferee
shall be deemed admitted effective immediately prior to the transfer and,
immediately following such admission, the transferor Partner shall cease to be a
member of the Partnership.
8.2 Regulatory Matters.
(a) Each Partner recognizes and acknowledges that the business conducted
by the Partnership and its Subsidiaries is subject to complex regulatory
provisions relating to fisheries management, vessel documentation and ownership
and other maritime matters. The Partnership is required to satisfy certain
foreign ownership requirements that require the provision of detailed
information and may require alterations in the Partnership's capital structure
and/or ownership. Each Partner agrees, at the request of the General Partner,
promptly to furnish to the General Partner such information as to such Partner's
citizenship, domicile or residence, management, ownership, and capital structure
(and, to the extent it is able to obtain it, such information as to the
citizenship, domicile or residence, management, ownership and capital structure
of each Person that holds, directly or indirectly, an equity interest in or
other right to Control such Partner) as the General Partner shall request in
order to comply, or to evaluate the Partnership's compliance, with such
regulatory requirements.
(b) Each Partner agrees that if at any time it or its Affiliates holds an
interest in any Person, vessel, processing facility or other assets as a result
of which any limitation or restriction is imposed (or but for this provision
would be imposed) on the quantity of any fish or shellfish which may be
harvested or processed by the Partnership or its subsidiaries and their
successors and assigns under applicable provisions of the American Fisheries Act
and any regulations thereunder or relevant thereto, there shall automatically be
redeemed (retroactively as of the date such limitation or restriction would have
been applicable) and exchanged for Redemption Securities a number of Units held
by such Partner sufficient to cause such limitation or restriction not to be
applicable or further applicable. The principal amount of the Redemption
Securities issued in exchange for Regular Units shall be their Fair Market
Value. The principal amount of the Redemption Securities issued in exchange for
Junior Preferred Units shall be the face amount of such Junior Preferred Units.
No affected Partner shall have any right to oppose, retard, object to or
otherwise inhibit such redemption, which shall be automatic and irrevocable.
8.3 Remedies. The Partnership and the Partners acknowledge and agree that
in the event of any breach of this Article VIII by any one of them, the
Partnership or the relevant Partner or Partners, as the case may be, would be
irreparably harmed and could
15
not be made whole by monetary damages. To the fullest extent permitted by law,
the Partnership and the Partners accordingly agree (i) to waive the defense in
any action for specific performance that a remedy at law would be adequate and
(ii) that the Partnership and the Partners, in addition to any other remedy to
which they may be entitled at law or in equity, shall be entitled to compel
specific performance of this Agreement.
ARTICLE IX
DISSOLUTION, LIQUIDATION, WINDING-UP AND TERMINATION
9.1 Causes of Dissolution. The Partnership shall be dissolved upon the
first to occur of the following:
(a) December 31, 2050;
(b) the withdrawal, Incapacity or Bankruptcy of the General Partner or
the occurrence of any other event which causes the General Partner to cease to
be a member of the Partnership under the Act;
(c) the sale or other disposition of all of the Partnership Assets;
(d) the entry of a decree of judicial dissolution of the Partnership by a
court of competent jurisdiction under Section 17-802 of the Act; and
(e) the termination of the legal existence of the last remaining member
of the Partnership or the occurrence of any other event which terminates the
continued membership in the Partnership of the last remaining member of the
Partnership unless the Partnership is continued without dissolution in a manner
permitted by the Act.
To the fullest extent permitted by law, the Partners agree that no act,
thing, occurrence, event or circumstance shall cause or result in the
dissolution of the Partnership except as provided above in this Section 9.1.
9.2 Winding Up and Liquidation. Upon dissolution of the Partnership, the
business and affairs of the Partnership shall be wound up as provided in this
Section 9.2. The General Partner shall act as the "Liquidator." If upon
dissolution, however, there is no General Partner or such dissolution is
pursuant to Section 9.1(b), a Majority-in-Interest of the Regular Partners shall
designate a Person to act as Liquidator. The Liquidator shall wind up the
affairs of the Partnership, shall dispose of such Partnership Assets as it deems
necessary or appropriate and shall pay and distribute the assets of the
Partnership, including the proceeds of any such dispositions, as follows:
16
(a) first, to creditors (including Partners owning Holdings Notes) in
satisfaction of liabilities of the Partnership (whether by payment or the making
of reasonable provision for payment thereof);
(b) second, to the holders of Junior Preferred Units, in an amount equal
to the face amount of the Junior Preferred Units; and
(c) third, to the holders of Regular Units and Junior Common Units pro
rata in proportion to their Units.
9.3 Documentation of Dissolution and Termination. Upon the dissolution of
the Partnership and the appointment of a Liquidator in accordance with Section
9.2, the Liquidator shall execute, file and record such certificates,
instruments and documents as it shall deem necessary or appropriate in each
state in which the Partnership or its Affiliates do business. Upon the
completion of the winding-up of the Partnership (including the application or
distribution of all cash or other assets placed in reserve in accordance with
Section 9.2), the Partnership shall be terminated and the General Partner or the
Liquidator, as the case may be, shall execute and file a certificate of
cancellation as required under Section 17-203 of the Act, and shall execute,
file and record such other certificates, instruments and documents as it shall
deem necessary or appropriate in each state in which the Partnership or its
Affiliates do business in order to reflect or effect the termination of the
Partnership.
9.4 Waiver of Partition. Each Partner hereby waives any right to a
partition of the Partnership Assets.
ARTICLE X
REPRESENTATIONS AND WARRANTIES
10.1 Representations and Warranties of the Limited Partners. Each Limited
Partner makes the following representations and warranties as of the date
hereof, with respect to itself only (and not with respect to any other Partner),
to and for the benefit of the Partnership and each other Partner:
(a) Organization; Authority. If the Limited Partner is a corporation,
then it is duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation. If the Limited Partner is a
partnership or limited liability company, then it is duly formed, validly
existing and in good standing (to the extent applicable) under the laws of its
jurisdiction of formation. The Limited Partner has the requisite authority to
enter into and perform its obligations under this Agreement.
17
(b) Due Authorization; Binding Agreement. The execution, delivery and
performance of this Agreement by the Limited Partner has been duly and validly
authorized by all necessary action of the Limited Partner. This Agreement has
been duly executed and delivered by the Limited Partner, or an authorized
representative of the Limited Partner, and constitutes a legal, valid and
binding obligation of the Limited Partner, enforceable against the Limited
Partner in accordance with the terms hereof.
(c) Consents and Approvals. No consent, waiver, approval or authorization
of, or filing, registration or qualification with, or notice to, any
governmental unit or any other Person is required to be made, obtained or given
by the Limited Partner in connection with the execution, delivery and
performance of this Agreement.
(d) Private Offering. The Limited Partner is acquiring its Units for its
own account and not with a view to the resale or distribution thereof.
(e) Accredited Investor. The Limited Partner is an "accredited investor"
as defined in Rule 501(a) of Regulation D promulgated under the Securities Act.
(f) Restriction on Resale. The Limited Partner understands and
acknowledges that its Units have not been registered for sale under any federal
or state securities law and must be held indefinitely unless subsequently
registered or an exemption from such registration is available.
(g) Due Diligence. The Limited Partner (i) has performed its own due
diligence and business investigations with respect to the Partnership, (ii) is
fully familiar with the nature of the investment in the Partnership, the
speculative and financial risks thereby assumed, and the uncertainty with
respect to the timing and amounts of distributions, if any, to be made by the
Partnership, (iii) does not desire any further information which may be
available with respect to these matters and (iv) has had a sufficient
opportunity to review the matters that it believes to be important in deciding
whether to acquire Units.
10.2 Representations and Warranties of the General Partner. The General
Partner represents and warrants as of the date hereof to and for the benefit of
the Partnership and each of the other Partners as follows:
(a) Organization. The General Partner is a duly formed and validly
existing corporation, in good standing, under the laws of the State of Delaware.
(b) Due Authorization; Binding Agreement. The execution, delivery and
performance of this Agreement by the General Partner has been duly and validly
authorized by all necessary action of the General Partner. This Agreement has
been duly executed and delivered by the General Partner, or an authorized
representative of the
18
General Partner, and constitutes a legal, valid and binding obligation of the
General Partner, enforceable against the General Partner in accordance with the
terms hereof.
(c) Consents and Approvals. No consent, waiver, approval or authorization
of, or filing, registration or qualification with, or notice to, any
governmental unit or any other Person is required to be made, obtained or given
by the General Partner in connection with the execution, delivery and
performance of this Agreement.
ARTICLE XI
AMENDMENTS TO AGREEMENT
11.1 Amendments.
(a) Subject to Section 11.1(b), the General Partner shall have the power
to amend this Agreement (including amending Schedule A and adjusting the number
of Units of the Partners) without the consent of the Partners.
(b) Notwithstanding Section 11.1(a), this Agreement shall not be amended
without the written consent of each Partner adversely affected if such amendment
would (i) reduce the Partner's percentage ownership of the outstanding Units, or
alter rights of the Partner to receive distributions pursuant to Article IV or
IX or allocations pursuant to Article V in a manner adverse to such Partner (in
each case, except as contemplated by Section 3.2) or (ii) amend this Section
11.1(b).
(c) Each Partner agrees to be bound by each and every amendment adopted
in accordance with this Agreement even if such Partner did not execute such
amendment.
ARTICLE XII
GENERAL PROVISIONS
12.1 Notices. All notices, offers or other communications required or
permitted to be given pursuant to this Agreement shall be in writing and may be
personally served, telecopied or sent by United States mail or by commercial
courier and shall be deemed to have been given when delivered in person, upon
receipt of telecopy or three (3) business days after deposit in United States
mail, registered or certified, postage prepaid, and properly addressed, by or to
the appropriate party. For purposes of this Section 12.1, the addresses of the
parties hereto shall be as set forth below their name on a signature page
hereof. The address of any party hereto may be changed by a notice in writing
given in accordance with the provisions of this Section 12.1.
19
12.2 Successors. This Agreement and all of the terms and provisions hereof
shall be binding upon and shall inure to the benefit of all Partners, and their
legal representatives, heirs, successors and permitted assigns, except as
otherwise expressly provided herein.
12.3 Effect and Interpretation. This Agreement shall be governed by and
construed in conformity with the laws of the State of Delaware without regard to
any conflict of laws rules thereof.
12.4 Counterparts. This Agreement may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
12.5 Partners Not Agents. Nothing contained herein shall be construed to
constitute any Partner the agent of another Partner, except as otherwise
expressly provided herein, or in any manner to limit the Partners in the
carrying on of their own respective businesses or activities.
12.6 Entire Understanding; Etc. This Agreement constitutes the entire
agreement and understanding among the Partners with respect to the Partnership
and supersedes any prior or contemporaneous understandings and/or written or
oral agreements among them respecting the Partnership.
12.7 Severability. If any provision of this Agreement, or the application
of such provision to any Person or circumstance, shall be held invalid by a
court of competent jurisdiction, the remainder of this Agreement, or the
application of such provision to persons or circumstances other than those to
which it is held invalid by such court, shall not be affected thereby.
12.8 Construction of Agreement. As used herein, the singular shall be
deemed to include the plural, and the plural shall be deemed to include the
singular, and all pronouns shall include the masculine, feminine and neuter,
whenever the context and facts require such construction. The headings,
captions, titles and subtitles herein are inserted for convenience of reference
only and are to be ignored in any construction of the provisions hereof. Except
as otherwise indicated herein, all section, schedule and exhibit references in
this Agreement shall be deemed to refer to the sections, schedules and exhibits
of and to this Agreement, and the terms "herein", "hereof", "hereto",
"hereunder" and similar terms refer to this Agreement generally rather than to
the particular provision in which such term is used. Whenever the words
"including", "include" or "includes" are used in this Agreement, they shall be
interpreted in a non-exclusive manner as though the words "but [is] not limited
to" immediately followed the same. Time is of the essence of this Agreement. The
parties hereto intend that the language in all parts of this Agreement shall in
all cases be construed simply according to the fair meaning thereof and not
strictly against the party which drafted such language.
20
Except as otherwise provided herein, references in this Agreement to any
agreement, articles, by-laws, instrument or other document are to such
agreement, articles, by-laws, instrument or other document as amended, modified
or supplemented from time to time.
12.9 WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH
PARTNER HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY A PARTNER OR THE PARTNERSHIP WITH RESPECT TO ANY MATTER WHATSOEVER
ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, THE RELATIONSHIP OF
THE GENERAL PARTNER AND THE OTHER PARTNERS, ANY CLAIM OF INJURY OR DAMAGE
RELATING TO ANY OF THE FOREGOING, OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY
STATUTE WITH RESPECT THERETO.
12.10 Incorporation of Exhibits and Glossary. The Glossary of Defined Terms
and all other exhibits, attachments, appendices and schedules attached hereto
are incorporated herein and made a part hereof.
12.11 Assurances. Each of the Partners shall hereafter execute and deliver
such further instruments and do such further acts and things as may be required
or useful to carry out the intent and purpose of this Agreement and as are not
inconsistent with the terms hereof.
[Remainder of page intentionally left blank.]
21
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed effective as of the date and year first
above written.
GENERAL PARTNER:
---------------
AMERICAN SEAFOODS CORPORATION
By:
------------------------------------
Name:
Title:
Address for Notices:
Market Place Tower
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
S-1
LIMITED PARTNERS:
----------------
CP3 TAX EXEMPT HOLDINGS CORP.
By:
------------------------------------
Name:
Title:
Address for Notices:
c/o American Seafoods Corporation
Market Place Tower
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
S-2
ASC OFFSHORE HOLDINGS CORP.
By:
------------------------------------
Name:
Title:
Address for Notices:
c/o American Seafoods Corporation
Market Place Tower
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
S-3
ASC, INC.
By:
------------------------------------
Name:
Title:
Address for Notices:
c/o American Seafoods Corporation
Market Place Tower
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
S-4
AMERICAN SEAFOODS, L.P.
By: ASC MANAGEMENT, INC.,
its general partner
By:
------------------------------------
Name:
Title:
Address for Notices:
c/o Centre Partners Management LLC
00 Xxxxxxxxxxx Xxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
S-5
GLOSSARY OF DEFINED TERMS
"Act" shall mean the Delaware Revised Uniform Limited Partnership Act, 6
Del. C. Sections 17-101 et seq., as the same may hereafter be amended or
supplemented from time to time and any successor thereto.
"Adjusted EBITDA" of the Partnership shall have the meaning set forth in
the IDS Note Indenture.
"Administrative Expenses" shall mean all administrative and operating costs
and expenses incurred by the Partnership and the General Partner, including
salaries paid to officers of either of them, accounting and legal expenses and
customary fees and expense reimbursements for officers and directors.
"Affected Gain" shall have the meaning set forth in Section 5.2(b).
"Affiliate" shall mean, with respect to any Person (i) any member of the
Immediate Family of such Person; (ii) any trustee or beneficiary of such Person;
(iii) any legal representative, successor, or assignee of such Person or any
Person referred to in the preceding clauses (i) and (ii); (iv) any trustee for
the benefit of such Person or any Person referred to in the preceding clauses
(i) through (iii); or (v) any Entity which directly or indirectly through one or
more intermediaries, Controls, is Controlled by, or is under common Control
with, such Person or any Person referred to in the preceding clauses (i) through
(iv).
"Agreement" shall have the meaning set forth in the opening paragraph.
"American Fisheries Act" shall mean the American Fisheries Act, Title II of
Division C of P.L. 105-277 (Oct. 21, 1998), or any successors or supplements
thereto, as amended from time to time.
"Applicable Federal Rate" shall mean, with respect to any subordinated note
of the Partnership described in the definition of Redemption Securities, the
long-term "applicable federal rate", compounded semi-annually, as released by
the Internal Revenue Service pursuant to its authority under Section 1274(d) of
the Code, for the month during which such subordinated note was issued.
"ASLP" shall mean American Seafoods, L.P., a Delaware limited partnership.
"Bankruptcy" shall mean, with respect to any Partner, (i) the commencement
by such Partner of any proceeding seeking relief under any provision or chapter
of the federal Bankruptcy Code or any other federal, state or foreign law
relating to insolvency, bankruptcy or reorganization; (ii) an adjudication that
such Partner is insolvent or
Glossary-1
bankrupt; (iii) the entry of an order for relief under the federal Bankruptcy
Code with respect to such Partner; (iv) the filing of any such petition or the
commencement of any such case or proceeding against such Partner, unless such
petition and the case or proceeding initiated thereby are dismissed within
ninety (90) days from the date of such filing; (v) the filing of an answer by
such Partner admitting the material allegations of any such petition; (vi) the
appointment of a trustee, receiver or custodian for all or substantially all of
the assets of such Partner unless such appointment is vacated or dismissed
within ninety (90) days from the date of such appointment but not less than five
(5) days before the proposed sale of any assets of such Partner; (vii) the
insolvency of such Partner or the execution by such Partner of a general
assignment for the benefit of creditors; (viii) the convening by such Partner of
a meeting of its creditors, or any class thereof, for purposes of effecting a
moratorium upon or extension or composition of its debts; (ix) the failure of
such Partner to pay its debts as they mature; (x) the levy, attachment,
execution or other seizure of substantially all of the assets of such Partner
where such seizure is not discharged within thirty (30) days thereafter; or (xi)
the admission by such Partner in writing of its inability to pay its debts as
they mature or that it is generally not paying its debts as they become due.
"Capital Account" shall have the meaning set forth in Section 3.4.
"Capital Contribution" shall mean, with respect to any Partner, the amount
of money and initial value of any property other than money contributed (or
deemed to be contributed) to the Partnership with respect to the Units held by
such Partner (net of liabilities to which such property is subject).
"Certificate of Conversion" shall mean the Certificate of Conversion, as
filed with the Secretary of State of the State of Delaware, pursuant to which
the Partnership was converted from a Delaware limited liability company to a
Delaware limited partnership.
"Certificate of Formation" shall mean the Certificate of Formation of the
Company, as filed with the Secretary of State of the State of Delaware, as the
same may be amended from time to time.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time.
"Control" shall mean the ability, whether by the direct or indirect
ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership, or otherwise to select, or have the power to remove
and then select, a majority of those persons exercising governing authority over
an Entity. In the case of a limited liability company, the sole managing member
or manager, or all of the managing members or managers to
Glossary-2
the extent each has equal management control and authority, shall be deemed to
have control of such company and, in the case of a trust, any trustee thereof or
any Person having the right to select any such trustee shall be deemed to have
control of such trust. The terms "Controls" and "Controlled" shall have
correlative meanings.
"Conversion Event" shall have the meaning set forth in Section 3.1(b).
"Entity" shall mean any general partnership, limited partnership,
corporation, limited liability company, joint venture, trust, business trust,
cooperative or association.
"Fair Market Value" shall mean, with respect to a Regular Unit, the fair
market value of an IDS (determined by reference to the closing price of the IDSs
on the immediately preceding business day).
"Financial Statements" shall mean audited financial statements (balance
sheets, statement of income, statement of Partners' equity and statement of cash
flows) prepared in accordance with generally accepted accounting principles.
"Foreign Ownership Percentage" shall mean, at any date with respect to any
Person, the percentage of the interest in such Person, at each tier of ownership
of such Person and in the aggregate, that is owned and controlled (determined in
accordance with the standards of section 12102(c)(1) and (2) of Title 46 of the
United States Code (as amended by the American Fisheries Act) and any
regulations thereunder or relevant thereto, all as effective on or after October
1, 2001 (whether the date of determination is before or after such date), or as
determined under any analogous provisions of any successor statutes or
regulations by Foreign Persons.
"Foreign Person" shall mean at any date a Person that would not be eligible
to own a vessel with a fisheries endorsement under the standards of subsections
12102(a) and 12102(c)(1) and (2) of Title 46 of the United States Code (as
amended by the American Fisheries Act) and any regulations thereunder or
relevant thereto, all as effective on or after October 1, 2001 (whether the date
of determination is before or after such date), or under any analogous
provisions of any successor statutes or regulations. In determining whether any
Person is a Foreign Person, effect shall be given to the United States Maritime
Administration's methodology and determinations in any determination letter
provided by it to the Partnership, its parent or its Affiliates.
"General Partner" shall mean American Seafoods Corporation, a Delaware
corporation (and any successor or assign duly admitted as a general partner in
accordance with this Agreement or the Act).
"Glossary of Defined Terms" shall have the meaning set forth in Article I.
Glossary-3
"Holdings Notes" shall mean the __% notes of the Partnership issued to the
General Partner and ASLP as of the date hereof, and such additional notes having
substantially identical terms that may be issued in the future as contemplated
by this Agreement.
"IDSs" shall mean the Income Deposit Securities representing the common
stock and __% notes issued by the General Partner.
"IDS Note Indenture" shall mean the indenture, dated as of _________, 2003,
between the General Partner and ___________, as trustee, relating to the ___%
notes issued by the General Partner.
"IDS Notes" shall mean the __% notes of the General Partner issued pursuant
to the IDS Note Indenture.
"Immediate Family" shall mean, with respect to any individual, such
individual's spouse, parents, parents-in-law, descendants, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law and children-in-law.
"Incapacity" shall mean (i) as to any individual Partner, death, total
physical disability or entry by a court of competent jurisdiction adjudicating
him incompetent to manage his Person or his estate; (ii) as to any corporation
which is a Partner, the filing of a certificate of dissolution, or its
equivalent, for the corporation or the revocation of its charter; (iii) as to
any partnership which is a Partner, the dissolution and commencement of winding
up of the partnership; (iv) as to any estate which is a Partner, the
distribution by the fiduciary of the estate's entire interest in the
Partnership; (v) as to any trustee of a trust which is a Partner, the
termination of the trust (but not the substitution of a new trustee); or (vi) as
to any Partner, the Bankruptcy of such Partner.
"Indemnitee" shall mean (i) the General Partner, (ii) any shareholder,
owner or principal of the General Partner, (iii) any Person that is a director,
officer, employee, agent or representative of the General Partner or the
Partnership, and (iv) such other Persons as the General Partner may reasonably
designate from time to time.
"Junior Common Units" shall mean the junior common units of the Partnership
having the rights and preferences set forth in this Agreement.
"Junior Preferred Units" shall mean the junior preferred units of the
Partnership, having a face amount per unit of [$7.75] and having the rights and
preferences set forth in this Agreement.
"Junior Units" shall mean the Junior Common Units and the Junior Preferred
Units.
Glossary-4
"Limited Partner" shall mean any Partner other than the General Partner.
"Liquidator" shall have the meaning set forth in Section 9.2.
"LLC" shall mean American Seafoods Group LLC, a Delaware limited liability
company.
"LLC Interests" shall mean the interests in the LLC held by the
Partnership.
"Majority-In-Interest of the Regular Partners" shall mean one or more
Partners who hold in the aggregate more than fifty percent (50%) of the Regular
Units then outstanding.
"Partners" shall mean the Persons that are duly admitted as members in
accordance with the Act and this Agreement and are listed on Schedule A hereto,
as may be amended from time to time, including the Regular Partners and the
Preferred Partners, each in their capacities as members of the Partnership.
"Partnership" shall mean American Seafoods Holdings, L.P.
"Partnership Assets" shall mean any and all property, of whatever kind or
nature, owned by the Partnership from time to time.
"Person" shall mean any individual or Entity.
"Redemption Securities" shall mean subordinated notes of the Partnership
with a term of 10 years, bearing interest at 4.99 percentage points above the
Applicable Federal Rate (which interest shall, at the option of the Partnership,
be added to principal on each interest payment date), which notes will contain
no covenants or other rights to control the Partnership.
"Regular Partners" shall mean Partners that hold Regular Units, in their
capacities as such.
"Regular Units" shall mean the regular units of the Partnership having the
rights and preferences set forth in this Agreement.
"Regulations" shall mean the final, temporary or proposed Income Tax
Regulations promulgated under the Code, as such regulations may be amended from
time to time (including corresponding provisions of succeeding regulations).
"Securities Act" shall mean the Securities Act of 1933, as amended.
Glossary-5
"Swap Transaction" shall mean, with respect to any Units, any swap,
participation or other arrangement that transfers to another Person, in whole or
in part, any significant economic consequences of ownership thereof.
"Units" shall mean units issued to the Partners evidencing interests in the
Partnership, including the Junior Common Units, the Junior Preferred Units and
the Regular Units.
"VCOC Observer" shall have the meaning set forth in Section 7.4(a).
"VCOC Partner" shall mean any Partner that notifies the Partnership that it
or its beneficial owner is a "venture capital operating company" within the
meaning of Department of Labor Regulations 29 C.F.R. Section 2510.3-101(d).
"Withheld Amount" shall have the meaning set forth in Section 4.2(b).
Glossary-6
SCHEDULE A
----------
Capital Contributions, Notes and Units
--------------------------------------
Junior Junior
Capital Regular Common Preferred
Partners Contributions Notes Units Units Units
----------------------------- ------------- ----- ------- ------ ---------
American Seafoods Corporation
CP3 Tax Exempt Holdings Corp.
ASC Offshore Holdings Corp.
ASC, Inc.
American Seafoods, L.P.
Schedule A-1
