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EXHIBIT 3.5
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP OF SOUTHERN FOODS GROUP, L.P.
This First Amendment ("Amendment") to the Second Amended and Restated
Agreement of Limited Partnership of Southern Foods Group, L.P. (the
"Partnership") is made and entered into as of the 31st day of March, 1998, to
be effective as of 3:00 p.m. on September 3, 1997 (the "Effective Time"), by
and among SFG Management Limited Liability Company ("SFG LLC") as the sole
general partner ("General Partner"), and each of the limited partners listed as
signatories to this Amendment.
WHEREAS, on September 3, 1997, the parties to this Amendment entered
into that certain Second Amended and Restated Agreement of Limited Partnership
to be effective as of 3:00 p.m. on September 3, 1997 (the "Original Partnership
Agreement");
WHEREAS, the parties have determined that certain corrections to the
Second Amended and Restated Agreement of Limited Partnership need to be made to
clarify the intent of the parties with respect to certain provisions of the
Original Partnership Agreement, and the parties desire to set forth those
corrections in this Amendment;
WHEREAS, Mid-America Dairymen, Inc. has changed its name to Dairy
Farmers of America, Inc. ("DFA");
NOW THEREFORE, for and in consideration of the mutual covenants
contained in this Amendment, the Partners agree as follows:
1. Defined terms used in this Amendment shall have the meanings
set forth for such terms in the Original Partnership
Agreement, except where the context herein requires otherwise.
2. From and after December 3, 1997, all references to
"Mid-America Dairymen, Inc." or "Mid-Am" shall be deemed to be
references to "Dairy Farmers of America, Inc." or "DFA," as
the case may be.
3. The first sentence of Section 5.2(a)(i)(E) shall be amended by
deleting the phrase "tax authority" and substituting in lieu
thereof the phrase "Governmental Authority."
4. Section 5.2(a)(ii) shall be deleted in its entirety, and the
following substituted in its place:
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"(ii) Next, unless limited by the terms of any outstanding
financing arrangements set forth in any agreement or
agreements to which the Partnership is a party, Net
Operating Cash Flow shall be distributed among the
Preferred Limited Partners as provided in the terms
and conditions applicable to the series of Preferred
Limited Partner Interests held by such Preferred
Limited Partners."
5. Sections 6.2(c)(ii)(A) and (B) shall be deleted in their
entirety and the following substituted in their place:
"(A) Distributions shall be made to the Preferred
Limited Partners until each has received an
amount equal to the Gross Unpaid Preferred
Return, as hereinafter defined, on all series
of Preferred Limited Partner Interests held
by such Preferred Limited Partner; provided,
however, that no distribution shall be made
pursuant to this Section 6.2 that creates or
increases a Capital Account deficit for any
Partner who is not a General Partner which
exceeds such Partner's obligation, deemed or
actual, to restore such deficit, determined
as follows: Distributions shall first be
determined tentatively pursuant to this
Section 6.2 without regard to the Partners'
Capital Accounts, and then the allocation
provisions of the Appendix shall be applied
tentatively as if such tentative
distributions had been made. If any Partner
who is not a General Partner shall thereby
have a deficit Capital Account which exceeds
his deemed or actual obligation to restore
such deficit, the actual distribution to such
Partner pursuant to this Section 6.2 shall be
equal to the tentative distribution to such
Partner less the amount of the excess to such
Partner. "Gross Unpaid Preferred Return" for
a series of Preferred Limited Partner
Interests means the excess of (i) Allocated
Preferred Return for such series, as defined
in the terms and conditions applicable to
such series, over (ii) the aggregate
accumulated Allocated Preferred Return
previously paid in cash to the holders of
such series of Preferred Limited Partner
Interests. Each distribution made pursuant to
this Section 6.2(c)(ii)(A) shall be
distributed to the Preferred Limited Partners
in proportion to their respective Gross
Unpaid Preferred Returns at the time of such
distribution. Solely for purposes of this
Section 6.2(c)(ii), Gross Unpaid Preferred
Returns shall be determined by excluding from
the calculation of distributions of Preferred
Returns made pursuant to this Section
6.2(c)(ii)(A) the stated amounts of Preferred
Limited Partner Interests issued in payment
of Preferred Returns.
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(B) Distributions shall be made to the Preferred
Limited Partners in an amount equal to the
aggregate Unreturned Preferred Limited
Partner Balances of all Preferred Limited
Partners. In determining Unreturned Preferred
Limited Partner Balances for purposes of this
Section 6.2(c)(ii)(B), the stated amount of
Preferred Limited Partner Interests issued
since the inception of the Partnership in
payment of Preferred Return on any series of
Preferred Limited Partner Interests shall not
be considered as Preferred Limited Partner
Contributions with respect to such series of
Preferred Limited Partner Interests. Each
distribution made pursuant to this Section
6.2(c)(ii)(B) shall be distributed to the
Preferred Limited Partners in proportion to
their respective Unreturned Preferred Limited
Partner Balances."
6. Section 8.11(c)(i), Put Price, shall be amended by deleting
the phrase "September 4, 2001," in the first sentence and
substituting the phrase "January 1, 2003,".
7. Section 8.12(d), Call Price, shall be amended in the second to
the last line after the phrase "Call Option Upon Death" by
adding the phrase "or Disability".
8. Section 12.11, Joinder of Xxxxx for Limited Purposes, shall be
amended by deleting in the last line the word "not" and
replacing it with the word "no".
9. The following revisions shall be made to Section 13.1, General
Definitions:
(a) The existing definition of "Disability" shall be
deleted and the following definition shall be
substituted in lieu thereof:
"Disability" or "Disabled" means the
inability of Xxxxxxxx because of any physical
or emotional illness to perform his duties as
the President and Chief Executive Officer of
the Partnership or the General Partner for
more than 30 hours per week and such
inability to perform his duties shall have
continued for a period of 60 or more
consecutive days.
(b) The definition of "Eligible Partners" shall be
modified by specifying that such term shall have the
meaning set forth in Section 5.1(a)(i)(A)(1).
(c) The definition of "Flow Through Owners" shall be
modified by specifying that such term shall have the
meaning set forth in Section 5.2(a)(i)(E).
(d) The following definition of "Gross Unpaid Preferred
Return" shall be added immediately after the
definition of "General Partner":
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"Gross Unpaid Preferred Return" shall have
the meaning set forth in Section
6.2(c)(ii)(A).
(e) The definition "Income Taxes" shall be modified by
specifying that such term shall have the meaning set
forth in Section 5.2(a)(i)(A)(2).
(f) The definition of "Mid-Am Capital Contribution
Agreement" shall be modified by specifying that such
term shall have the meaning set forth in Section
2.2(c).
(g) The definition of "Mid-Am Contribution Agreement"
shall be amended by specifying that such term shall
have the meaning set forth in Section 2.2(b).
(h) The definition of "Required Distribution Amount"
shall be deleted and there shall be added a
definition of "Partnership Tax Amount" which shall
have the meaning set forth in Section 5.2(a)(i)(A).
(i) The definition of "Total Taxable Income" shall be
deleted.
(j) The definition of "Undistributed Preferred Return"
shall be deleted.
10. The lead in to Section A.4.1.(a)(i) of the Appendix shall be
omitted in its entirety and the following substituted in its
place:
"(i) First, Net Profits shall be
allocated ratably to the Preferred Limited
Partners in accordance with the allocations
of Net Profits set forth in the terms and
conditions applicable to the various series
of Preferred Limited Partner Interests issued
by the Partnership."
11. The lead in to Section A.4.1.(b) of the Appendix shall be
omitted in its entirety and the following substituted in its
place:
"(b) Preferred Return. Each of the
Preferred Limited Partners shall be entitled to receive an
allocation of Net Profits equal to a preferred return (the
"Preferred Return") with respect to each series of Preferred
Limited Partner Interest held by such Preferred Limited
Partner as provided in the terms and provisions applicable to
such series of Preferred Limited Partner Interest. The terms
and conditions applicable to each series of Preferred Limited
Partner Interest now authorized as provided in the Agreement
are set forth in the following Exhibits to the Agreement:"
12. Exhibit 2 shall be amended and restated in its entirety as set
forth on the attached Exhibit 2.
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13. Exhibit 3 shall be amended and restated in its entirety as set
forth on the attached Exhibit 3.
14. Exhibit 4 shall be amended and restated in its entirety as set
forth on the attached Exhibit 4.
15. Exhibit 5 shall be amended and restated in its entirety as set
forth on the attached Exhibit 5.
16. Exhibit 6 shall be amended and restated in its entirety as set
forth on the attached Exhibit 6.
17. In all other respects, the Original Partnership Agreement
shall remain in full force and effect.
18. Joinder of Xxxxx for Limited Purposes. Xxxxx joins in the
execution of this Amendment for the limited purpose of
acknowledging the revisions made to Section 12.11 of the
Original Partnership Agreement
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day first written above, to be effective as of the Effective Time.
GENERAL PARTNER:
SFG MANAGEMENT LIMITED LIABILITY
COMPANY
By: /s/ XXXX XXXXXXXX
-------------------------------------
Its: PRESIDENT and CEO
--------------------------------
COMMON LIMITED PARTNERS:
/s/ XXXX XXXXXXXX
------------------------------------
Xxxx Xxxxxxxx
DAIRY FARMERS OF AMERICA, INC.
(formerly named MID-AMERICA
DAIRYMEN, INC.)
By: /s/ XXXXXX X. XXX
--------------------------------
Its: CFO
---------------------------
PREFERRED LIMITED PARTNERS:
DAIRY FARMERS OF AMERICA, INC.
(formerly named MID-AMERICA
DAIRYMEN, INC.)
By: /s/ XXXXXX X. XXX
--------------------------------
Its: CFO
---------------------------
MID-AM CAPITAL, L.L.C.
By: /s/ XXXXXX X. XXX
--------------------------------
Its: CEO
---------------------------
Joining for the limited purpose
specified in Section 18 of the Amendment
/s/ XXXXX X. XXXXX
---------------------------------------
XXXXX X. XXXXX
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EXHIBIT 2
AMENDED AND RESTATED DESIGNATION OF
SERIES A 10% PAYMENT-IN-KIND PREFERRED LIMITED PARTNER INTERESTS
This Exhibit 2 constitutes an amendment and a restatement of a
designation of a series of Preferred Interests pursuant to Section 2.4 of the
Second Amended and Restated Agreement of Limited Partnership (the "Agreement").
This designation amends and restates the designation established in Appendix A
to the Amended and Restated Agreement for the issuance of Series A Preferred
Capital Interests of the Partnership on the terms set forth below. The defined
terms used but not defined in this Exhibit 2 shall have the meaning ascribed
thereto in the Agreement.
1. Designation. Effective January 1, 1997, the Partnership
designates and authorizes the issuance of Series A 10% Payment-in-Kind
Preferred Limited Partner Interests ("Series A Preferred Interests") previously
entitled the "Series A Preferred Capital Interests". Series A Preferred
Interests may not be issued by the Partnership in excess of an original stated
amount of $84,947,000, plus the amount of all Undistributed Preferred Returns,
as defined in the Amended and Restated Agreement, as of June 30, 1997, except
that an unlimited stated amount of Series A Preferred Interests may be issued
by the Partnership in payment of Series A Preferred Return in accordance with
Section 4.
2. Ranking. So long as Series A Preferred Interests are
outstanding the Partnership will not issue any securities or interests ranking,
as to participation in the profits or assets of the Partnership, senior to the
Series A Preferred Interests other than in accordance with the Agreement and
with the unanimous written consent of all holders of Series A Preferred
Interests. The issuance of securities or interests ranking senior to the
Series A Preferred Interests shall be deemed to adversely affect the rights of
the Series A Preferred Interests under the Agreement. The Series A Preferred
Interests shall rank pari passu with the Series B, C, D and E Preferred
Interests and any other series that ranks pari passu with the Series A
Preferred Interests; provided, however, the Preferred Return on the Series D
Preferred Interests may, under certain conditions, be paid in cash prior to
dissolution of the Partnership.
3. Preferred Return and Allocation of Net Profits.
(a) Definitions. For purposes of determining the
Preferred Return on the Series A Preferred Interests and the
allocation of Net Profits with respect thereto, the following
definitions shall apply.
(i) "Allocated Preferred Return" means the amount
of aggregate accumulated Net Profits allocated with respect to
Preferred Return on the various series of Preferred Limited Partner
Interests issued by the Partnership.
(ii) "Allocation Period" means a period for which
an allocation of Net Profits is being determined.
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(iii) "Series A Preferred Return" means a return
calculated to provide a cumulative, semi- annually compounded return
in an amount equal to ten percent (10%) per annum determined on the
basis of a year of 365 or 366 days, as the case may be, for the actual
number of days occurring in the period for which the Series A
Preferred Return is being determined, of the average daily balance of
the sum of (a) the Series A Unreturned Preferred Limited Partner
Balance outstanding, if any, from time to time during the period to
which the Preferred Return relates, plus (b) the Unallocated Series A
Preferred Return outstanding, if any, from time to time during the
period to which the Preferred Return relates (excluding from such
calculation, however, the Preferred Return for the period for which
such calculation is being made), commencing on the date on which the
applicable Series A Preferred Limited Partner Capital Contribution was
made by the contributing Preferred Limited Partner. The Series A
Preferred Return shall be calculated for each semi-annual period as of
June 30 and December 31 and, to the extent not paid for any such
period, the Series A Preferred Return shall cumulate on each June 30
and December 31 as provided herein and the amounts which so cumulate
shall be added to the Series A Preferred Return as described above.
(iv) "Series A Allocated Preferred Return" means
the Allocated Preferred Return on the Series A Preferred Interests,
consisting of the aggregate accumulated Net Profits that are allocated
with respect to Series A Preferred Returns as provided in Section 3(b)
hereof and to be paid as provided in Section 4 hereof by the issuance
of additional Series A Preferred Interests.
(v) "Series A Net Profits" means for any
Allocation Period the Net Profits of the Partnership multiplied by the
fraction equal to (a) the Unallocated Series A Preferred Return,
divided by (b) the aggregate of the Unallocated Preferred Returns of
all series of Preferred Interests issued by the Partnership.
(vi) "Series A Unreturned Preferred Limited
Partner Balance" means the Unreturned Preferred Limited Partner
Balance for the Series A Preferred Interests.
(vii) "Unallocated Preferred Return" means with
reference to any series of Preferred Limited Partner Interests issued
by the Partnership, the excess of (a) the aggregate accumulated
Preferred Return on such series of Preferred Limited Partner Interests
(the "Accumulated Preferred Return"), over (b) the aggregate
accumulated amount of Allocated Preferred Return on such series of
Preferred Limited Partner Interests.
(viii) "Unallocated Series A Preferred Return" means
the Unallocated Preferred Return on the Series A Preferred Interests.
(ix) "Unpaid Series A Preferred Return" means the
excess of (a) the Series A Allocated Preferred Return, over (b) the
aggregate accumulated amount of Series A Allocated Preferred Return
paid as provided in Section 4 hereof by the issuance of additional
Series A Preferred Interests.
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(b) The Series A Preferred Interests shall receive an
allocation of Net Profits, for purposes of Section A.4.1(b) of the
Appendix, for each Allocation Period equal to the lesser of (i) the
amount of Unallocated Series A Preferred Return measured as of the
close of the Allocation Period, and (ii) the Series A Net Profits for
such Allocation Period.
4. Payment of Preferred Return. Except as provided in Sections 6
and 9, the Partnership shall not pay the Series A Allocated Preferred Return on
Series A Preferred Interests in cash, but instead such Series A Allocated
Preferred Return shall be paid by the issuance of additional Series A Preferred
Interests in a stated amount equal to the Unpaid Series A Preferred Return.
Such Series A Allocated Preferred Return shall be paid as of each June 30 and
December 31. The Series A Preferred Interests issued in payment of the Series
A Allocated Preferred Return shall be entitled to receive a Series A Preferred
Return from the date of their issuance. Solely for purposes of determining
such Series A Preferred Return, the stated amount of any Series A Preferred
Interests previously issued in payment of Series A Allocated Preferred Return
shall be considered as a Series A Preferred Limited Partner Contribution made
at the time such Series A Preferred Interests were issued in payment of Series
A Allocated Preferred Return.
5. Subordination. The Series A Preferred Interests shall be
subordinated in right of payment to all indebtedness of the Partnership.
6. Payment Only Upon Dissolution. Except for the Optional
Redemption provided for in Section 9, the Series A Preferred Interests,
together with any Series A Allocated Preferred Return that has not yet been
paid by the issuance of additional Series A Preferred Interests as provided in
Section 4 hereof, are payable in cash only upon dissolution of the Partnership.
7. Preference on Liquidation. Upon dissolution of the
Partnership, the Series A Preferred Interests shall have the priority
established in Section 6.2 of the Agreement and shall be pari passu with the
Series B, C, D and E Preferred Interests and any other series that ranks pari
passu with the Series A Preferred Interests.
8. Voting Rights. No holder of Series A Preferred Interests
shall have voting rights or any right to participate in the management of the
Partnership by reason of holding Series A Preferred Interests.
9. Optional Redemption. Subject to the terms and provisions of
any financing arrangements set forth in any agreement to which the Partnership
is a party, the Series A Preferred Interests are redeemable in cash, at the
option of the Partnership, in whole or in part from time to time, at the Call
Price (as defined below).
(a) Redemption Price. The redemption price for
the Series A Preferred Interests (the "Call Price") shall be
the stated amount of the Series A Preferred Interests plus all
Unpaid Series A Preferred Return plus all Unallocated Series A
Preferred Return.
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(b) Redemption Procedure.
(i) Notice of any redemption pursuant to
this Section 9 (a "Call Notice") of Series A Preferred
Interests will be given by the Partnership by mail to each
record holder to be redeemed not fewer than 30 nor more than
60 days prior to the date fixed for redemption thereof. For
purposes of the calculation of the date of redemption and the
dates on which the Call Notice is given, a Call Notice shall
be deemed to be given on the day such notice is first mailed
by first-class mail, postage prepaid, to such holders of
Series A Preferred Interests. Each Call Notice shall be
addressed to such holders of Series A Preferred Interests at
the address of the holder appearing in the books and records
of the Partnership. No defect in the Call Notice or in the
mailing thereof or publication of its contents shall affect
the validity of the redemption proceedings.
(ii) In the event that fewer than all the
outstanding Series A Preferred Interests are to be redeemed,
the Series A Preferred Interests to be redeemed will be
selected at the Partnership's discretion.
(iii) If the Partnership gives a Call
Notice in respect of Series A Preferred Interests, then upon
the date fixed for redemption of the Series A Preferred
Interests, all rights of the holders of the Series A Preferred
Interests so called for redemption will cease, except the
right of the holders of such securities to receive the Call
Price. In the event that any date fixed for redemption of
Series A Preferred Interests is not a business day, then
payment of the Call Price payable on such date will be made on
the next succeeding day which is a business day (and without
any interest or other payment in respect of any such delay),
except that, if such business day falls in the next calendar
year, such payment will be made on the immediately preceding
business day.
10. Effective Date and Transition. The amendment and restatement
of the designation of the Original Series A Preferred Interests shall be
effective as of 3:00 p.m. on September 3, 1997 (the "Effective Time").
Preferred Return shall continue to accrue and cumulate on the Series A
Preferred Interests from and after the Effective Time as provided herein. Any
Undistributed Preferred Return, as defined in the Amended and Restated
Agreement, due with respect to the Series A Preferred Interests as of the
Effective Time shall not be paid in cash as provided in the Amended and
Restated Agreement, but instead the following transition provisions shall
apply:
(a) The excess of (i) the cumulative Preferred Return on
the Series A Preferred Capital Interest, over (ii) the cumulative Net
Profits allocated with respect thereto, determined under the Amended
and Restated Agreement and measured as of the Effective Time, shall be
treated as Unallocated Series A Preferred Return as of such date, and
Series A Preferred Return shall continue to accrue with respect to
such Unallocated Series A Preferred Return as provided herein.
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(b) The excess of (i) aggregate accumulated Net Profits
allocated with respect to the Series A Preferred Capital Interest,
over (ii) all prior distributions of cash with respect to Preferred
Returns on the Series A Preferred Capital Interest, determined under
the Amended and Restated Agreement and measured as of the Effective
Time, shall be treated as Unpaid Series A Preferred Return as of such
date and shall be paid as provided in Section 4 hereof (on the dates
specified in such Section 4 hereof) by issuing additional Series A
Preferred Interests in a stated amount equal to such Unpaid Series A
Preferred Return.
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EXHIBIT 3
DESIGNATION OF
SERIES B 10% PAYMENT-IN-KIND PREFERRED LIMITED PARTNER INTERESTS
This Exhibit 3 constitutes a designation in accordance with Section
2.4 of the Second Amended and Restated Agreement of Limited Partnership (the
"Agreement"). This designation authorizes the issuance of Series B 10%
Payment- in-Kind Preferred Limited Partner Interests of the Partnership under
the terms set forth below. The defined terms used but not defined in this
Exhibit 3 shall have the meaning ascribed thereto in the Agreement.
1. Designation. The Partnership hereby designates and authorizes
the issuance of Series B 10% Payment-In- Kind Preferred Limited Partner
Interests ("Series B Preferred Interests"). Series B Preferred Interests may
not be issued by the Partnership in excess of an original stated amount of
$90,000,000, except that an unlimited stated amount of Series B Preferred
Interests may be issued by the Partnership in payment of Series B Preferred
Return in accordance with Section 4.
2. Ranking. So long as Series B Preferred Interests are
outstanding the Partnership will not issue any securities or interests ranking,
as to participation in the profits or assets of the Partnership, senior to the
Series B Preferred Interests other than in accordance with the Agreement and
with the unanimous written consent of all holders of Series B Preferred
Interests. The issuance of securities or interests ranking senior to the
Series B Preferred Interests shall be deemed to adversely affect the rights of
the Series B Preferred Interests under the Agreement. The Series B Preferred
Interests shall rank pari passu with the Series A, C, D and E Preferred
Interests and any other series that ranks pari passu with the Series B
Preferred Interests; provided, however, the Preferred Return on the Series D
Preferred Interests may, under certain conditions, be paid in cash prior to
dissolution of the Partnership.
3. Preferred Return and Allocation of Net Profits.
(a) Definitions. For purposes of determining the
Preferred Return on the Series B Preferred Interests and the
allocation of Net Profits with respect thereto, the following
definitions shall apply.
(i) "Allocated Preferred Return" means the amount
of aggregate accumulated Net Profits allocated with respect to
Preferred Return on the various series of Preferred Limited Partner
Interests issued by the Partnership.
(ii) "Allocation Period" means a period for which
an allocation of Net Profits is being determined.
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(iii) "Series B Preferred Return" means a return
calculated to provide a cumulative, semi- annually compounded return
in an amount equal to ten percent (10%) per annum determined on the
basis of a year of 365 or 366 days, as the case may be, for the actual
number of days occurring in the period for which the Series B
Preferred Return is being determined, of the average daily balance of
the sum of (a) the Series B Unreturned Preferred Limited Partner
Balance outstanding, if any, from time to time during the period to
which the Preferred Return relates, plus (b) the Unallocated Series B
Preferred Return outstanding, if any, from time to time during the
period to which the Preferred Return relates (excluding from such
calculation, however, the Preferred Return for the period for which
such calculation is being made), commencing on the date on which the
applicable Series B Preferred Limited Partner Capital Contribution was
made by the contributing Preferred Limited Partner. The Series B
Preferred Return shall be calculated for each semi-annual period as of
June 30 and December 31 and, to the extent not paid for any such
period, the Series B Preferred Return shall cumulate on each June 30
and December 31 as provided herein and the amounts which so cumulate
shall be added to the Series B Preferred Return as described above.
(iv) "Series B Allocated Preferred Return" means
the Allocated Preferred Return on the Series B Preferred Interests,
consisting of the aggregate accumulated Net Profits that are allocated
with respect to Series B Preferred Returns as provided in Section 3(b)
hereof and to be paid as provided in Section 4 hereof by the issuance
of additional Series B Preferred Interests.
(v) "Series B Net Profits" means for any
Allocation Period the Net Profits of the Partnership multiplied by the
fraction equal to (a) the Unallocated Series B Preferred Return,
divided by (b) the aggregate of the Unallocated Preferred Returns of
all series of Preferred Interests issued by the Partnership.
(vi) "Series B Unreturned Preferred Limited
Partner Balance" means the Unreturned Preferred Limited Partner
Balance for the Series B Preferred Interests.
(vii) "Unallocated Preferred Return" means with
reference to any series of Preferred Limited Partner Interests issued
by the Partnership, the excess of (a) the aggregate accumulated
Preferred Return on such series of Preferred Limited Partner Interests
(the "Accumulated Preferred Return"), over (b) the aggregate
accumulated amount of Allocated Preferred Return on such series of
Preferred Limited Partner Interests.
(viii) "Unallocated Series B Preferred Return" means
the Unallocated Preferred Return on the Series B Preferred Interests.
(ix) "Unpaid Series B Preferred Return" means the
excess of (a) the Series B Allocated Preferred Return, over (b) the
aggregate accumulated amount of Series B Allocated Preferred Return
paid as provided in Section 4 hereof by the issuance of additional
Series B Preferred Interests.
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(b) The Series B Preferred Interests shall receive an
allocation of Net Profits, for purposes of Section A.4.1(b) of the
Appendix, for each Allocation Period equal to the lesser of (i) the
amount of Unallocated Series B Preferred Return measured as of the
close of the Allocation Period, and (ii) the Series B Net Profits for
such Allocation Period.
4. Payment of Preferred Return. Except as provided in Sections 6
and 9, the Partnership shall not pay the Series B Allocated Preferred Return on
Series B Preferred Interests in cash, but instead such Series B Allocated
Preferred Return shall be paid by the issuance of additional Series B Preferred
Interests in a stated amount equal to the Unpaid Series B Preferred Return.
Such Series B Allocated Preferred Return shall be paid as of each June 30 and
December 31. The Series B Preferred Interests issued in payment of the Series
B Allocated Preferred Return shall be entitled to receive a Series B Preferred
Return from the date of their issuance. Solely for purposes of determining
such Series B Preferred Return, the stated amount of any Series B Preferred
Interests previously issued in payment of Series B Allocated Preferred Return
shall be considered as a Series B Preferred Limited Partner Contribution made
at the time such Series B Preferred Interests were issued in payment of Series
B Allocated Preferred Return.
5. Subordination. The Series B Preferred Interests shall be
subordinated in right of payment to all indebtedness of the Partnership.
6. Payment Only Upon Dissolution. Except for the Optional
Redemption provided for in Section 9, the Series B Preferred Interests,
together with any Series B Allocated Preferred Return that has not yet been
paid by the issuance of additional Series B Preferred Interests as provided in
Section 4 hereof, are payable in cash only upon dissolution of the Partnership.
7. Preference on Liquidation. Upon dissolution of the
Partnership, the Series B Preferred Interests shall have the priority
established in Section 6.2 of the Agreement and shall be pari passu with the
Series A, C, D and E Preferred Interests and any other series that ranks pari
passu with the Series B Preferred Interests.
8. Voting Rights. No holder of Series B Preferred Interests
shall have voting rights or any right to participate in the management of the
Partnership by reason of holding Series B Preferred Interests.
9. Optional Redemption. Subject to the terms and provisions of
any financing arrangements set forth in any agreement to which the Partnership
is a party, the Series B Preferred Interests are redeemable in cash, at the
option of the Partnership, in whole or in part from time to time, at the Call
Price (as defined below).
(a) Redemption Price. The redemption price for
the Series B Preferred Interests (the "Call Price") shall be
the stated amount of the Series B Preferred Interests plus all
Unpaid Series B Preferred Return plus all Unallocated Series B
Preferred Return.
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(b) Redemption Procedure.
(i) Notice of any redemption pursuant to
this Section 9 (a "Call Notice") of Series B Preferred
Interests will be given by the Partnership by mail to each
record holder to be redeemed not fewer than 30 nor more than
60 days prior to the date fixed for redemption thereof. For
purposes of the calculation of the date of redemption and the
dates on which the Call Notice is given, a Call Notice shall
be deemed to be given on the day such notice is first mailed
by first-class mail, postage prepaid, to such holders of
Series B Preferred Interests. Each Call Notice shall be
addressed to such holders of Series B Preferred Interests at
the address of the holder appearing in the books and records
of the Partnership. No defect in the Call Notice or in the
mailing thereof or publication of its contents shall affect
the validity of the redemption proceedings.
(ii) In the event that fewer than all the
outstanding Series B Preferred Interests are to be redeemed,
the Series B Preferred Interests to be redeemed will be
selected at the Partnership's discretion.
(iii) If the Partnership gives a Call
Notice in respect of Series B Preferred Interests, then upon
the date fixed for redemption of the Series B Preferred
Interests, all rights of the holders of the Series B Preferred
Interests so called for redemption will cease, except the
right of the holders of such securities to receive the Call
Price. In the event that any date fixed for redemption of
Series B Preferred Interests is not a business day, then
payment of the Call Price payable on such date will be made on
the next succeeding day which is a business day (and without
any interest or other payment in respect of any such delay),
except that, if such business day falls in the next calendar
year, such payment will be made on the immediately preceding
business day.
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EXHIBIT 4
DESIGNATION OF
SERIES C 10% PAYMENT-IN-KIND PREFERRED LIMITED PARTNER INTERESTS
This Exhibit 4 constitutes a designation in accordance with Section
2.4 of the Second Amended and Restated Agreement of Limited Partnership (the
"Agreement"). This designation authorizes the issuance of Series C 10%
Payment- in-Kind Preferred Limited Partner Interests of the Partnership under
the terms set forth below. The defined terms used but not defined in this
Exhibit 4 shall have the meaning ascribed thereto in the Agreement.
1. Designation. The Partnership hereby designates and authorizes
the issuance of Series C 10% Payment-in- Kind Preferred Limited Partner
Interests ("Series C Preferred Interests"). Series C Preferred Interests may
not be issued by the Partnership in excess of an original stated amount of
$15,000,000 except that an unlimited stated amount of Series C Preferred
Interests may be issued by the Partnership in payment of Series C Preferred
Return in accordance with Section 4.
2. Ranking. So long as Series C Preferred Interests are
outstanding the Partnership will not issue any securities or interests ranking,
as to participation in the profits or assets of the Partnership, senior to the
Series C Preferred Interests other than in accordance with the Agreement and
with the unanimous written consent of all holders of Series C Preferred
Interests. The issuance of securities or interests ranking senior to the
Series C Preferred Interests shall be deemed to adversely affect the rights of
the Series C Preferred Interests under the Agreement. The Series C Preferred
Interests shall rank pari passu with the Series A, B, D and E Preferred
Interests and any other series that ranks pari passu with the Series C
Preferred Interests; provided, however, the Preferred Return on the Series D
Preferred Interests may, under certain conditions, be paid in cash prior to
dissolution of the Partnership.
3. Preferred Return and Allocation of Net Profits.
(a) Definitions. For purposes of determining the
Preferred Return on the Series C Preferred Interests and the
allocation of Net Profits with respect thereto, the following
definitions shall apply.
(i) "Allocated Preferred Return" means the amount
of aggregate accumulated Net Profits allocated with respect to
Preferred Return on the various series of Preferred Limited Partner
Interests issued by the Partnership.
(ii) "Allocation Period" means a period for which
an allocation of Net Profits is being determined.
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(iii) "Series C Preferred Return" means a return
calculated to provide a cumulative, semi- annually compounded return
in an amount equal to ten percent (10%) per annum determined on the
basis of a year of 365 or 366 days, as the case may be, for the actual
number of days occurring in the period for which the Series C
Preferred Return is being determined, of the average daily balance of
the sum of (a) the Series C Unreturned Preferred Limited Partner
Balance outstanding, if any, from time to time during the period to
which the Preferred Return relates, plus (b) the Unallocated Series C
Preferred Return outstanding, if any, from time to time during the
period to which the Preferred Return relates (excluding from such
calculation, however, the Preferred Return for the period for which
such calculation is being made), commencing on the date on which the
applicable Series C Preferred Limited Partner Capital Contribution was
made by the contributing Preferred Limited Partner. The Series C
Preferred Return shall be calculated for each semi-annual period as of
June 30 and December 31 and, to the extent not paid for any such
period, the Series C Preferred Return shall cumulate on each June 30
and December 31 as provided herein and the amounts which so cumulate
shall be added to the Series C Preferred Return as described above.
(iv) "Series C Allocated Preferred Return" means
the Allocated Preferred Return on the Series C Preferred Interests,
consisting of the aggregate accumulated Net Profits that are allocated
with respect to Series C Preferred Returns as provided in Section 3(b)
hereof and to be paid as provided in Section 4 hereof by the issuance
of additional Series C Preferred Interests.
(v) "Series C Net Profits" means for any
Allocation Period the Net Profits of the Partnership multiplied by the
fraction equal to (a) the Unallocated Series C Preferred Return,
divided by (b) the aggregate of the Unallocated Preferred Returns of
all series of Preferred Interests issued by the Partnership.
(vi) "Series C Unreturned Preferred Limited
Partner Balance" means the Unreturned Preferred Limited Partner
Balance for the Series C Preferred Interests.
(vii) "Unallocated Preferred Return" means with
reference to any series of Preferred Limited Partner Interests issued
by the Partnership, the excess of (a) the aggregate accumulated
Preferred Return on such series of Preferred Limited Partner Interests
(the "Accumulated Preferred Return"), over (b) the aggregate
accumulated amount of Allocated Preferred Return on such series of
Preferred Limited Partner Interests.
(viii) "Unallocated Series C Preferred Return" means
the Unallocated Preferred Return on the Series C Preferred Interests.
(ix) "Unpaid Series C Preferred Return" means the
excess of (a) the Series C Allocated Preferred Return, over (b) the
aggregate accumulated amount of Series C Allocated Preferred Return
paid as provided in Section 4 hereof by the issuance of additional
Series C Preferred Interests.
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(b) The Series C Preferred Interests shall receive an
allocation of Net Profits, for purposes of Section A.4.1(b) of the
Appendix, for each Allocation Period equal to the lesser of (i) the
amount of Unallocated Series C Preferred Return measured as of the
close of the Allocation Period, and (ii) the Series C Net Profits for
such Allocation Period.
4. Payment of Preferred Return. Except as provided in Sections 6
and 9, the Partnership shall not pay the Series C Allocated Preferred Return on
Series C Preferred Interests in cash, but instead such Series C Allocated
Preferred Return shall be paid by the issuance of additional Series C Preferred
Interests in a stated amount equal to the Unpaid Series C Preferred Return.
Such Series C Allocated Preferred Return shall be paid as of each June 30 and
December 31. The Series C Preferred Interests issued in payment of the Series
C Allocated Preferred Return shall be entitled to receive a Series C Preferred
Return from the date of their issuance. Solely for purposes of determining
such Series C Preferred Return, the stated amount of any Series C Preferred
Interests previously issued in payment of Series C Allocated Preferred Return
shall be considered as a Series C Preferred Limited Partner Contribution made
at the time such Series C Preferred Interests were issued in payment of Series
C Allocated Preferred Return.
5. Subordination. The Series C Preferred Interests shall be
subordinated in right of payment to all indebtedness of the Partnership.
6. Payment Only Upon Dissolution. Except for the Optional
Redemption provided for in Section 9, the Series C Preferred Interests,
together with any Series C Allocated Preferred Return that has not yet been
paid by the issuance of additional Series C Preferred Interests as provided in
Section 4 hereof, are payable in cash only upon dissolution of the Partnership.
7. Preference on Liquidation. Upon dissolution of the
Partnership, the Series C Preferred Interests shall have the priority
established in Section 6.2 of the Agreement and shall be pari passu with the
Series A, B, D and E Preferred Interests and any other series that ranks pari
passu with the Series C Preferred Interests.
8. Voting Rights. No holder of Series C Preferred Interests
shall have voting rights or any right to participate in the management of the
Partnership by reason of holding Series C Preferred Interests.
9. Optional Redemption. Subject to the terms and provisions of
any financing arrangements set forth in any agreement to which the Partnership
is a party, the Series C Preferred Interests are redeemable in cash, at the
option of the Partnership, in whole or in part from time to time, at the Call
Price (as defined below).
(a) Redemption Price. The redemption price for
the Series C Preferred Interests (the "Call Price") shall be
the stated amount of the Series C Preferred Interests plus all
Unpaid Series C Preferred Return plus all Unallocated Series C
Preferred Return.
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19
(b) Redemption Procedure.
(i) Notice of any redemption pursuant to
this Section 9 (a "Call Notice") of Series C Preferred
Interests will be given by the Partnership by mail to each
record holder to be redeemed not fewer than 30 nor more than
60 days prior to the date fixed for redemption thereof. For
purposes of the calculation of the date of redemption and the
dates on which the Call Notice is given, a Call Notice shall
be deemed to be given on the day such notice is first mailed
by first-class mail, postage prepaid, to such holders of
Series C Preferred Interests. Each Call Notice shall be
addressed to such holders of Series C Preferred Interests at
the address of the holder appearing in the books and records
of the Partnership. No defect in the Call Notice or in the
mailing thereof or publication of its contents shall affect
the validity of the redemption proceedings.
(ii) In the event that fewer than all the
outstanding Series C Preferred Interests are to be redeemed,
the Series C Preferred Interests to be redeemed will be
selected at the Partnership's discretion.
(iii) If the Partnership gives a Call
Notice in respect of Series C Preferred Interests, then upon
the date fixed for redemption of the Series C Preferred
Interests, all rights of the holders of the Series C Preferred
Interests so called for redemption will cease, except the
right of the holders of such securities to receive the Call
Price. In the event that any date fixed for redemption of
Series C Preferred Interests is not a business day, then
payment of the Call Price payable on such date will be made on
the next succeeding day which is a business day (and without
any interest or other payment in respect of any such delay),
except that, if such business day falls in the next calendar
year, such payment will be made on the immediately preceding
business day.
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EXHIBIT 5
DESIGNATION OF SERIES D 9 1/2% PREFERRED LIMITED PARTNER INTERESTS
This Exhibit 5 constitutes a designation in accordance with Section
2.4 of the Second Amended and Restated Agreement of Limited Partnership (the
"Agreement"). This designation authorizes the issuance of Series D 9 1/2%
Preferred Limited Partner Interests of the Partnership under the terms set
forth below. The defined terms used but not defined in this Exhibit 5 shall
have the meaning ascribed thereto in the Agreement.
1. Designation. The Partnership hereby designates and authorizes
the issuance of Series D 9 1/2% Preferred Limited Partner Interests ("Series D
Preferred Interests"). Series D Preferred Interests may not be issued by the
Partnership in excess of an original stated amount of $30,000,000 except that
an unlimited stated amount of Series D Preferred Interests may be issued by the
Partnership in payment of Series D Preferred Return in accordance with Section
4.
2. Ranking. So long as Series D Preferred Interests are
outstanding the Partnership will not issue any securities or interests ranking,
as to participation in the profits or assets of the Partnership, senior to the
Series D Preferred Interests other than in accordance with the Agreement and
with the unanimous written consent of all holders of Series D Preferred
Interests. The issuance of securities or interests ranking senior to the
Series D Preferred Interests shall be deemed to adversely affect the rights of
the Series D Preferred Interests under the Agreement. The Series D Preferred
Interests shall rank pari passu with the Series A, B, C and E Preferred
Interests and any other series that ranks pari passu with the Series D
Preferred Interests; provided, however, the Preferred Return on the Series D
Preferred Interests may, under certain conditions, be paid in cash prior to
dissolution of the Partnership.
3. Preferred Return and Allocation of Net Profits.
(a) Definitions. For purposes of determining the
Preferred Return on the Series D Preferred Interests and the
allocation of Net Profits with respect thereto, the following
definitions shall apply.
(i) "Allocated Preferred Return" means
the amount of aggregate accumulated Net Profits allocated with
respect to the various series of Preferred Limited Partner
Interests issued by the Partnership.
(ii) "Allocation Period" means a period
for which an allocation of Net Profits is being determined.
(iii) "Series D Preferred Return" means a
return calculated to provide a cumulative, semi-annually
compounded return in an amount equal to nine and one-half
percent (9 1/2%) per annum determined on the basis of a year
of 365 or 366 days, as the case may be, for the actual number
of days occurring in the
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period for which the Series D Preferred Return is being
determined, of the average daily balance of the sum of (a) the
Series D Unreturned Preferred Limited Partner Balance
outstanding, if any, from time to time during the period to
which the Preferred Return relates, plus (b) the Unallocated
Series D Preferred Return outstanding, if any, from time to
time during the period to which the Preferred Return relates
(excluding from such calculation, however, the Preferred
Return for the period for which such calculation is being
made), commencing on the date on which the Series D Preferred
Limited Partner Capital Contribution was made by the
contributing Preferred Limited Partner. The Series D Preferred
Return shall be calculated for each semi-annual period as of
June 30 and December 31 and, to the extent not paid for any
such period within 45 days after the close of such period, the
Series D Preferred Return shall cumulate on each June 30 and
December 31 as provided herein and the amounts which so
cumulate shall be added to the Series D Preferred Return as
described above.
(iv) "Series D Allocated Preferred
Return" means the Allocated Preferred Return on the Series D
Preferred Interests, consisting of the aggregate accumulated
Net Profits that are allocated with respect to Series D
Preferred Returns as provided in Section 3(b) hereof and to be
paid as provided in Section 4 hereof by the issuance of
additional Series D Preferred Interests.
(v) "Series D Net Profits" means for any
Allocation Period the Net Profits of the Partnership
multiplied by the fraction equal to (a) the Unallocated Series
D Preferred Return, divided by (b) the aggregate of the
Unallocated Preferred Returns of all series of Preferred
Interests issued by the Partnership.
(vi) "Series D Unreturned Preferred
Limited Partner Balance" means the Unreturned Preferred
Limited Partner Balance for the Series D Preferred Interests.
(vii) "Unallocated Preferred Return" means
with reference to any series of Preferred Limited Partner
Interests issued by the Partnership, the excess of (a) the
aggregate accumulated Preferred Return on such series of
Preferred Limited Partner Interests (the "Accumulated
Preferred Return"), over (b) the aggregate accumulated amount
of Allocated Preferred Return on such series of Preferred
Limited Partner Interests.
(viii) "Unallocated Series D Preferred
Return" means the Unallocated Preferred Return on the Series D
Preferred Interests.
(ix) "Unpaid Series D Preferred Return"
means the excess of (a) the Series D Allocated Preferred
Return, over (b) the aggregate accumulated amount of Series D
Allocated Preferred Return paid as provided in Section 4
hereof either by payment in cash or by the issuance of
additional Series D Preferred Interests.
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(b) The Series D Preferred Interests shall receive an
allocation of Net Profits, for purposes of Section A.4.1(b) of the
Appendix, for each Allocation Period equal to the lesser of (i) the
amount of Unallocated Series D Preferred Return measured as of the
close of the Allocation Period, and (ii) the Series D Net Profits for
such Allocation Period.
4. Payment of Preferred Return. The Series D Allocated Preferred
Return on the Series D Preferred Interests shall be paid in cash within 45 days
of each June 30 and December 31, unless, at the time of such distribution, cash
distributions are not permitted pursuant to the terms of any agreement to which
the Partnership is a party. If payment of the Series D Allocated Preferred
Return in cash is so prohibited, the Partnership shall pay the Series D
Allocated Preferred Return in additional Series D Preferred Interests in a
stated amount equal to the Unpaid Series D Preferred Return as of such payment
date. The Series D Preferred Interests issued in payment of the Series D
Allocated Preferred Return shall be entitled to receive a Series D Preferred
Return from the date of their issuance. Solely for purposes of determining
such Series D Preferred Return, the stated amount of any Series D Preferred
Interests previously issued in payment of Series D Allocated Preferred Return
shall be considered as a Series D Preferred Limited Partner Contribution made
at the time such Series D Preferred Interests were issued in payment of Series
D Allocated Preferred Return.
5. Subordination. The Series D Preferred Interests shall be
subordinated in right of payment to all indebtedness of the Partnership.
6. Payment Only Upon Dissolution. Except as provided in Sections
4 and 9, the Series D Preferred Interests, together with all Series D Allocated
Preferred Returns not previously paid in cash or in Series D Preferred
Interests, are payable in cash only upon dissolution of the Partnership.
7. Preference on Liquidation. Upon dissolution of the
Partnership, the Series D Preferred Interests shall have the priority
established in Section 6.2 of the Agreement and shall be pari passu with the
Series A, B, C and E Preferred Interests and any other series that ranks pari
passu with the Series D Preferred Interests.
8. Voting Rights. No holder of Series D Preferred Interests
shall have voting rights or any right to participate in the management of the
Partnership by reason of holding Series D Preferred Interests.
9. Optional Redemption. Subject to the terms and provisions of
any financing arrangements set forth in any agreement to which the Partnership
is a party, the Series D Preferred Interests are redeemable in cash, at the
option of the Partnership, in whole or in part from time to time, at the Call
Price (as defined below).
(a) Redemption Price. The redemption price for
the Series D Preferred Interests (the "Call Price") shall be
the stated amount of the Series D Preferred Interests plus all
Unpaid Series D Preferred Return plus all Unallocated Series D
Preferred Return.
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(b) Redemption Procedure.
(i) Notice of any redemption pursuant to
this Section 9 (a "Call Notice") of Series D Preferred
Interests will be given by the Partnership by mail to each
record holder to be redeemed not fewer than 30 nor more than
60 days prior to the date fixed for redemption thereof. For
purposes of the calculation of the date of redemption and the
dates on which the Call Notice is given, a Call Notice shall
be deemed to be given on the day such notice is first mailed
by first-class mail, postage prepaid, to such holders of
Series D Preferred Interests. Each Call Notice shall be
addressed to such holders of Series D Preferred Interests at
the address of the holder appearing in the books and records
of the Partnership. No defect in the Call Notice or in the
mailing thereof or publication of its contents shall affect
the validity of the redemption proceedings.
(ii) In the event that fewer than all the
outstanding Series D Preferred Interests are to be redeemed,
the Series D Preferred Interests to be redeemed will be
selected at the Partnership's discretion.
(iii) If the Partnership gives a Call
Notice in respect of Series D Preferred Interests, then upon
the date fixed for redemption of the Series D Preferred
Interests, all rights of the holders of the Series D Preferred
Interests so called for redemption will cease, except the
right of the holders of such securities to receive the Call
Price. In the event that any date fixed for redemption of
Series D Preferred Interests is not a business day, then
payment of the Call Price payable on such date will be made on
the next succeeding day which is a business day (and without
any interest or other payment in respect of any such delay),
except that, if such business day falls in the next calendar
year, such payment will be made on the immediately preceding
business day.
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EXHIBIT 6
DESIGNATION OF
SERIES E 10% PAYMENT-IN-KIND PREFERRED LIMITED PARTNER INTERESTS
This Exhibit 6 constitutes a designation in accordance with Section
2.4 of the Second Amended and Restated Agreement of Limited Partnership (the
"Agreement"). This designation authorizes the issuance of Series E 10%
Payment- in-Kind Preferred Limited Partner Interests of the Partnership under
the terms set forth below. The defined terms used but not defined in this
Exhibit 6 shall have the meaning ascribed thereto in the Agreement.
1. Designation. The Partnership hereby designates and authorizes
the issuance of an unlimited amount of Series E 10% Payment-in-Kind Preferred
Limited Partner Interests ("Series E Preferred Interests").
2. Ranking. So long as Series E Preferred Interests are
outstanding the Partnership will not issue any securities or interests ranking,
as to participation in the profits or assets of the Partnership, senior to the
Series E Preferred Interests other than in accordance with the Agreement and
with the unanimous written consent of all holders of Series E Preferred
Interests. The issuance of securities or interests ranking senior to the
Series E Preferred Interests shall be deemed to adversely affect the rights of
the Series E Preferred Interests under the Agreement. The Series E Preferred
Interests shall rank pari passu with the Series A, B, C, and D Preferred
Interests and any other series that ranks pari passu with the Series E
Preferred Interests; provided, however, the Preferred Return on the Series D
Preferred Interests may, under certain conditions, be paid in cash prior to
dissolution of the Partnership.
3. Preferred Return and Allocation of Net Profits.
(a) Definitions. For purposes of determining the
Preferred Return on the Series E Preferred Interests and the
allocation of Net Profits with respect thereto, the following
definitions shall apply.
(i) "Allocated Preferred Return" means the amount
of aggregate accumulated Net Profits allocated with respect to
Preferred Return on the various series of Preferred Limited Partner
Interests issued by the Partnership.
(ii) "Allocation Period" means a period for which
an allocation of Net Profits is being determined.
(iii) "Series E Preferred Return" means a return
calculated to provide a cumulative, semi- annually compounded return
in an amount equal to ten percent (10%) per annum determined on the
basis of a year of 365 or 366 days, as the case may be, for the actual
number of days occurring in the period for which the Series E
Preferred Return is
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being determined, of the average daily balance of the sum of (a) the
Series E Unreturned Preferred Limited Partner Balance outstanding, if
any, from time to time during the period to which the Preferred Return
relates, plus (b) the Unallocated Series E Preferred Return
outstanding, if any, from time to time during the period to which the
Preferred Return relates (excluding from such calculation, however,
the Preferred Return for the period for which such calculation is
being made), commencing on the date on which the applicable Series E
Preferred Limited Partner Capital Contribution was made by the
contributing Preferred Limited Partner. The Series E Preferred Return
shall be calculated for each semi-annual period as of June 30 and
December 31 and, to the extent not paid for any such period, the
Series E Preferred Return shall cumulate on each June 30 and December
31 as provided herein and the amounts which so cumulate shall be added
to the Series E Preferred Return as described above.
(iv) "Series E Allocated Preferred Return" means
the Allocated Preferred Return on the Series E Preferred Interests,
consisting of the aggregate accumulated Net Profits that are allocated
with respect to Series E Preferred Returns as provided in Section 3(b)
hereof and to be paid as provided in Section 4 hereof by the issuance
of additional Series E Preferred Interests.
(v) "Series E Net Profits" means for any
Allocation Period the Net Profits of the Partnership multiplied by the
fraction equal to (a) the Unallocated Series E Preferred Return,
divided by (b) the aggregate of the Unallocated Preferred Returns of
all series of Preferred Interests issued by the Partnership.
(vi) "Series E Unreturned Preferred Limited
Partner Balance" means the Unreturned Preferred Limited Partner
Balance for the Series E Preferred Interests.
(vii) "Unallocated Preferred Return" means with
reference to any series of Preferred Limited Partner Interests issued
by the Partnership, the excess of (a) the aggregate accumulated
Preferred Return on such series of Preferred Limited Partner Interests
(the "Accumulated Preferred Return"), over (b) the aggregate
accumulated amount of Allocated Preferred Return on such series of
Preferred Limited Partner Interests.
(viii) "Unallocated Series E Preferred Return" means
the Unallocated Preferred Return on the Series E Preferred Interests.
(ix) "Unpaid Series E Preferred Return" means the
excess of (a) the Series E Allocated Preferred Return, over (b) the
aggregate accumulated amount of Series E Allocated Preferred Return
paid as provided in Section 4 hereof by the issuance of additional
Series E Preferred Interests.
(b) The Series E Preferred Interests shall receive an
allocation of Net Profits, for purposes of Section A.4.1(b) of the
Appendix, for each Allocation Period equal to the
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26
lesser of (i) the amount of Unallocated Series E Preferred Return
measured as of the close of the Allocation Period, and (ii) the Series
E Net Profits for such Allocation Period.
4. Payment of Preferred Return. Except as provided in Sections 6
and 9, the Partnership shall not pay the Series E Allocated Preferred Return on
Series E Preferred Interests in cash, but instead such Series E Allocated
Preferred Return shall be paid by the issuance of additional Series E Preferred
Interests in a stated amount equal to the Unpaid Series E Preferred Return.
Such Series E Allocated Preferred Return shall be paid as of each June 30 and
December 31. The Series E Preferred Interests issued in payment of the Series
E Allocated Preferred Return shall be entitled to receive a Series E Preferred
Return from the date of their issuance. Solely for purposes of determining
such Series E Preferred Return, the stated amount of any Series E Preferred
Interests previously issued in payment of Series E Allocated Preferred Return
shall be considered as a Series E Preferred Limited Partner Contribution made
at the time such Series E Preferred Interests were issued in payment of Series
E Allocated Preferred Return.
5. Subordination. The Series E Preferred Interests shall be
subordinated in right of payment to all indebtedness of the Partnership.
6. Payment Only Upon Dissolution. Except for the Optional
Redemption provided for in Section 9, the Series E Preferred Interests,
together with any Series E Allocated Preferred Return that has not yet been
paid by the issuance of additional Series E Preferred Interests as provided in
Section 4 hereof, are payable in cash only upon dissolution of the Partnership.
7. Preference on Liquidation. Upon dissolution of the
Partnership, the Series E Preferred Interests shall have the priority
established in Section 6.2 of the Agreement and shall be pari passu with the
Series A, B, C and D Preferred Interests and any other series that ranks pari
passu with the Series E Preferred Interests.
8. Voting Rights. No holder of Series E Preferred Interests
shall have voting rights or any right to participate in the management of the
Partnership by reason of holding Series E Preferred Interests.
9. Optional Redemption. Subject to the terms and provisions of
any financing arrangements set forth in any agreement to which the Partnership
is a party, the Series E Preferred Interests are redeemable in cash, at the
option of the Partnership, in whole or in part from time to time, at the Call
Price (as defined below).
(a) Redemption Price. The redemption price for
the Series E Preferred Interests (the "Call Price") shall be
the stated amount of the Series E Preferred Interests plus all
Unpaid Series E Preferred Return plus all Unallocated Series E
Preferred Return.
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(b) Redemption Procedure.
(i) Notice of any redemption pursuant to
this Section 9 (a "Call Notice") of Series E Preferred
Interests will be given by the Partnership by mail to each
record holder to be redeemed not fewer than 30 nor more than
60 days prior to the date fixed for redemption thereof. For
purposes of the calculation of the date of redemption and the
dates on which the Call Notice is given, a Call Notice shall
be deemed to be given on the day such notice is first mailed
by first-class mail, postage prepaid, to such holders of
Series E Preferred Interests. Each Call Notice shall be
addressed to such holders of Series E Preferred Interests at
the address of the holder appearing in the books and records
of the Partnership. No defect in the Call Notice or in the
mailing thereof or publication of its contents shall affect
the validity of the redemption proceedings.
(ii) In the event that fewer than all the
outstanding Series E Preferred Interests are to be redeemed,
the Series E Preferred Interests to be redeemed will be
selected at the Partnership's discretion.
(iii) If the Partnership gives a Call
Notice in respect of Series E Preferred Interests, then upon
the date fixed for redemption of the Series E Preferred
Interests, all rights of the holders of the Series E Preferred
Interests so called for redemption will cease, except the
right of the holders of such securities to receive the Call
Price. In the event that any date fixed for redemption of
Series E Preferred Interests is not a business day, then
payment of the Call Price payable on such date will be made on
the next succeeding day which is a business day (and without
any interest or other payment in respect of any such delay),
except that, if such business day falls in the next calendar
year, such payment will be made on the immediately preceding
business day.
10. Additional Issuance of Series E Preferred Interests
Authorized. The Partnership shall be authorized to issue additional Series E
Preferred Interests under the circumstances specified in Sections 5.6 and 5.7
of the Agreement. The Partnership shall also issue additional Series E
Preferred Interests to DFA if it shall pay to Xxxxxx any additional amounts
relating to employee benefit plans in connection with the transactions
contemplated by that certain Stock Purchase and Merger Agreement among Mid-Am
(now DFA), Xxxxxx, Inc., BDH Two, Inc. and Xxxxxx/Meadow Gold Dairies Holdings,
Inc., dated May 22, 1997. In that event, additional Series E Preferred
Interests in a stated amount of the amount paid to Xxxxxx shall be issued to
DFA as of the date of the payment to Xxxxxx.
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