Exhibit 4(b)
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
TXU EUROPE FUNDING I, L.P.
Dated as of ________ __, 1999
TABLE OF CONTENTS
Page
TABLE OF CONTENTS..............................................................I
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF TXU
EUROPE FUNDING I, L.P. ________ __, 1998......................................4
ARTICLE I.DEFINED TERMS.......................................................2
SECTION 1.1 DEFINITIONS....................................................2
ARTICLE II....................................................................9
ARTICLE II.CONTINUATION OF THE PARTNERSHIP; ADMISSION OF PREFERRED
PARTNERSHIP SECURITIES HOLDERS; WITHDRAWAL OF INITIAL LIMITED
PARTNER.......................................................................9
SECTION 2.1 CONTINUATION OF THE PARTNERSHIP................................9
SECTION 2.2 NAME...........................................................9
SECTION 2.3 PURPOSES OF THE PARTNERSHIP....................................9
SECTION 2.4 TERM..........................................................10
SECTION 2.5 REGISTERED AGENT AND OFFICE...................................10
SECTION 2.6 PRINCIPAL PLACE OF ACTIVITY...................................10
SECTION 2.7 NAME AND ADDRESS OF GENERAL PARTNER...........................10
SECTION 2.8 QUALIFICATION TO CONDUCT ACTIVITIES...........................10
SECTION 2.9 ADMISSION OF HOLDERS OF PREFERRED PARTNERSHIP SECURITIES;
WITHDRAWAL OF INITIAL LIMITED PARTNER.....................................10
ARTICLE XXX.XXXXXXX CONTRIBUTIONS; REPRESENTATION OF PREFERRED PARTNERSHIP
SECURITY HOLDER'S INTEREST; CAPITAL ACCOUNTS..................................11
SECTION 3.1 CAPITAL CONTRIBUTIONS..........................................11
SECTION 3.2 PREFERRED PARTNERSHIP SECURITY HOLDER'S INTEREST
REPRESENTED BY PREFERRED PARTNERSHIP SECURITIES............................11
SECTION 3.3 CAPITAL ACCOUNTS...............................................11
SECTION 3.4 INTEREST ON CAPITAL CONTRIBUTIONS..............................12
SECTION 3.5 WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS.................12
ARTICLE IV.ALLOCATIONS........................................................12
SECTION 4.1 PROFITS AND LOSSES.............................................12
SECTION 4.2 SPECIAL ALLOCATION.............................................13
SECTION 4.3 WITHHOLDING....................................................14
ARTICLE V.DISTRIBUTIONS.......................................................14
SECTION 5.1 DISTRIBUTIONS..................................................14
SECTION 5.2 LIMITATIONS ON DISTRIBUTIONS...................................15
ARTICLE VI.ISSUANCE OF PREFERRED PARTNERSHIP SECURITIES.......................15
SECTION 6.1 GENERAL PROVISIONS REGARDING PREFERRED PARTNERSHIP
SECURITIES.................................................................15
SECTION 6.2 PREFERRED PARTNERSHIP SECURITIES...............................16
ARTICLE VII.PARTNERSHIP INVESTMENTS...........................................24
SECTION 7.1 INITIAL AFFILIATE INVESTMENT INSTRUMENTS.......................24
SECTION 7.2 REINVESTMENT OF PAYMENTS RECEIVED BY THE PARTNERSHIP...........25
-i-
ARTICLE VIII.BOOKS OF ACCOUNT, RECORDS AND REPORTS............................26
SECTION 8.1 BOOKS AND RECORDS..............................................26
SECTION 8.2 ACCOUNTING METHOD..............................................26
SECTION 8.3 ANNUAL AUDIT...................................................27
ARTICLE IX.PAYMENT OF EXPENSES................................................27
SECTION 9.1 PAYMENT OF TRUST EXPENSES AND PARTNERSHIP TAXES................27
SECTION 9.2 PAYMENT OF OTHER PARTNERSHIP EXPENSES..........................27
ARTICLE X.XXXXXX, RIGHTS AND DUTIES OF THE LIMITED PARTNERS...................28
SECTION 10.1 LIMITATIONS...................................................28
SECTION 10.2.LIABILITY.....................................................28
SECTION 10.3.PRIORITY......................................................28
ARTICLE XI.POWERS, RIGHTS AND DUTIES OF THE GENERAL PARTNER...................28
SECTION 11.1 AUTHORITY.....................................................28
SECTION 11.2 POWERS AND DUTIES OF GENERAL PARTNER..........................28
SECTION 11.3.OBLIGATIONS AND EXPENSES PAYABLE BY GENERAL PARTNER...........30
SECTION 11.4 LIABILITY.....................................................31
SECTION 11.5 OUTSIDE ACTIVITIES............................................31
SECTION 11.6 LIMITS ON GENERAL PARTNER'S POWERS............................31
SECTION 11.7 EXCULPATION...................................................32
SECTION 11.8 FIDUCIARY DUTY................................................32
SECTION 11.9 INDEMNIFICATION...............................................33
SECTION 11.10 TAX MATTERS .................................................34
SECTION 11.11 CONSOLIDATION, MERGER OR SALE OF ASSETS......................34
ARTICLE XII.TRANSFERS OF INTERESTS BY PARTNERS................................35
SECTION 12.1 TRANSFER OF INTERESTS.........................................35
SECTION 12.2 TRANSFER OF L.P.CERTIFICATES..................................36
SECTION 12.3DEFINITIVE L.P. CERTIFICATES; PERSONS DEEMED PREFERRED
PARTNERSHIP SECURITY HOLDERS...............................................37
SECTION 12.4 BOOK ENTRY PROVISIONS.........................................37
SECTION 12.5 REGISTRAR, TRANSFER AGENT AND PAYING AGENT....................39
ARTICLE XIII.WITHDRAWAL, DISSOLUTION; LIQUIDATION AND DISTRIBUTION
OF ASSETS.....................................................................39
SECTION 13.1 WITHDRAWAL OF PARTNERS........................................39
SECTION 13.2 DISSOLUTION OF THE PARTNERSHIP................................39
SECTION 13.3 LIQUIDATION...................................................40
SECTION 13.4 DISTRIBUTION IN LIQUIDATION...................................41
SECTION 13.5 RIGHTS OF LIMITED PARTNERS....................................41
SECTION 13.6 TERMINATION...................................................41
ARTICLE XIV.AMENDMENTS AND MEETINGS...........................................42
SECTION 14.1 AMENDMENTS....................................................42
SECTION 14.2 AMENDMENT OF CERTIFICATE......................................42
SECTION 14.3 MEETINGS OF PARTNERS..........................................42
ARTICLE XV.MISCELLANEOUS......................................................43
SECTION 15.1 NOTICES.......................................................43
SECTION 15.2 POWER OF ATTORNEY.............................................44
SECTION 15.3 ENTIRE AGREEMENT..............................................44
SECTION 15.4 GOVERNING LAW.................................................44
SECTION 15.5 EFFECT........................................................45
SECTION 15.6 PRONOUNS AND NUMBER...........................................45
SECTION 15.7 CAPTIONS......................................................45
SECTION 15.8 PARTIAL ENFORCEABILITY........................................45
SECTION 15.9 COUNTERPARTS..................................................45
SECTION 15.10 WAIVER OF PARTITION..........................................45
SECTION 15.11 REMEDIES.....................................................45
SCHEDULE 1....................................................................48
ANNEX A FORM OF L.P. CERTIFICATE.............................................1
[ ] CERTIFICATE EVIDENCING PREFERRED PARTNERSHIP
SECURITIES OF TXU EUROPE FUNDING I, L.P. % PREFERRED PARTNERSHIP SECURITIES
(liquidation preference $25 per Preferred Partnership Security)................1
[FORM OF REVERSE OF SECURITY]..................................................3
___________________________ ASSIGNMENT........................................5
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
TXU EUROPE FUNDING I, L.P.
-------- --, ----
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of TXU
Europe Funding I, L.P., a Delaware limited partnership (the "Partnership"),
dated as of ________ __, ____, among TXU Europe Limited, a private limited
company incorporated under the laws of England and Wales (the "Company"), as the
general partner, and TXU Europe Capital I, a business trust formed pursuant to
the laws of the state of Delaware (the "Trust"), as the limited partner.
WHEREAS, the Company and the Limited Partner entered into an
Agreement of Limited Partnership of the Partnership dated as of_____________
(the "Original Partnership Agreement"), and the Partners (as defined herein)
desire to continue the Partnership under the Act (as defined herein) and to
amend and restate the Original Partnership Agreement in its entirety;
WHEREAS, the Certificate of Limited Partnership of the
Partnership was filed with the Office of the Secretary of State of the State of
Delaware on _____________________;
NOW, THEREFORE, in consideration of the agreements and
obligations set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree to amend and restate the Original Partnership Agreement as follows:
ARTICLE I.
DEFINED TERMS
Section 1.1 ____ DEFINITIONS. Unless the context otherwise requires,
the terms defined in this Article I shall, for the purposes of this Agreement,
have the meanings herein specified. Terms used in this Agreement and not
otherwise defined herein shall have the meanings ascribed to such terms in the
Trust Agreement.
"1940 Act" means the Investment Company Act of 1940, as amended.
"Administrative Trustees" has the meaning set forth in Section 1.1 of
the Trust Agreement. "
"Affiliate" has the meaning set forth in Section 1.01 of the Trust
Agreement.
"Affiliate Investment Instruments" has the meaning set forth in
Section 7.1 of this Agreement.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership, as it may be amended or supplemented from time to time.
"Beneficiaries" has the meaning set forth in Section 11.3 of this
Agreement.
"Book-Entry Interest" means a beneficial interest in the L.P.
Certificates, ownership and transfers of which shall be maintained and made
through book entries of a Clearing Agency as set forth in Section 12.4 of this
Agreement.
"Business Day" means any day other than a day on which banking
institutions in The City of New York are authorized or required by law to close.
"Capital Account" has the meaning set forth in Section 3.3 of this
Agreement.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware on
__________________, as it may be amended and restated from time to time.
"Change in 1940 Act Law" has the meaning set forth in Section 1.01 of
the Trust Agreement.
"Closing Date" has the meaning set forth in Section 1.01 of the Trust
Agreement.
"Code" means the Internal Revenue Code of 1986, as amended.
"Common Trust Securities" has the meaning specified in Section 8.01 of
the Trust Agreement.
"Common Trust Securities Guarantee" means the Common Trust Securities
Guarantee Agreement dated as of ________ __, ____, entered into by the Company,
as Guarantor, for the benefit of the holders of the Common Trust Securities.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"Compounded Preferred Entitlements" has the meaning set forth in
Section 6.2(b)(i) of this Agreement.
"Definitive L.P. Certificates" has the meaning set forth in Section
12.4(a) of this Agreement.
"Delaware Partnership Act" or "Act" means the Revised Uniform Limited
Partnership Act of the State of Delaware (6 Del. C. Section 17-101, et seq.).
"Delaware Trustee" has the meaning set forth in Section 6.02 of the
Trust Agreement.
"Distribution Payment Date" has the meaning set forth in Section
6.2(b)(i) of this Agreement.
"Distributions" means the cumulative cash distributions payable by the
Partnership with respect to the Interests represented by the Preferred
Partnership Securities, which amounts are payable quarterly in accordance with
Sections 5.1 and 6.2(b) of this Agreement.
"DTC" means the Depository Trust Company, the initial Clearing Agency.
"Eligible Debt Securities" means cash or book-entry securities,
negotiable instruments, or other securities of entities not affiliated with the
Company represented by instruments in registered form which evidence any of the
following: (a) any security issued or guaranteed as to principal or interest by
the United States, or by a person controlled or supervised by and acting as an
instrumentality of the Government of the United States pursuant to authority
granted by the Congress of the United States, or any certificate of deposit for
any of the foregoing; (b) commercial paper issued pursuant to Section 3(a)(3) of
the Securities Act of 1933 (the "Securities Act") and having, at the time of the
investment or contractual commitment to invest therein, a rating from each of
S&P and Moody's in the highest rating category granted by such rating agency and
having a maturity not in excess of nine months; (c) demand deposits, time
deposits and certificates of deposit which are fully insured by the FDIC, in no
case having a maturity greater than nine months; (d) repurchase obligations,
having a maturity of no greater than nine months; with respect to any security
that is a direct obligation of, or fully guaranteed by, the Government of the
United States of America or any agency or instrumentality thereof, the
obligations of which are backed by the full faith and credit of the United
States of America, in either case entered into with a depository institution or
trust company which is an Eligible Institution and the deposits of which are
insured by the FDIC; and (e) any other security which is identified as a
permitted investment of a finance subsidiary pursuant to Rule 3a-5 under the
1940 Act at the time it is acquired by the Partnership.
"Eligible Institution" means a depository institution organized under
the laws of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank), (1)(i) which
has either (A) a long-term unsecured debt rating of AA or better by S&P and Aa
or better by Moody's or (B) a short-term unsecured debt rating or a certificate
of deposit rating of A-1+ or better by S&P and P-1 or better by Moody's and (ii)
whose deposits are insured by the FDIC or (2)(i) the parent of which has a
long-term or short-term unsecured debt rating which signifies investment grade
and (ii) whose deposits are insured by the FDIC.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Finance Subsidiary" means any wholly-owned subsidiary of the
Company the principal purpose of which is to raise capital for the Company by
issuing securities that are guaranteed by the Company and the proceeds of which
are loaned to or invested in the Company or one or more of its affiliates.
"Fiscal Period" means each calendar quarter.
"Fiscal Year" means the calendar year.
"General Partner" means the Company, in its capacity as the general
partner of the Partnership, its permitted successors, or any successor general
partner in the Partnership admitted as such pursuant to the terms of this
Agreement.
"General Partner Capital Contribution" means the contribution by the
General Partner to the Partnership made contemporaneous with the issuance of the
Preferred Partnership Securities.
"General Partner Interest" means the Interest of the General Partner
in the
Partnership.
"Holder" or "Preferred Partnership Security Holder" means a Limited
Partner in whose name an L.P. Certificate representing Preferred Partnership
Securities is registered.
"Indentures" means the Indentures between the Company and certain of
its subsidiaries, and The Bank of New York, as Indenture Trustee, dated as of
_________________, forms of which are attached hereto as Exhibit A.
"Independent Financial Adviser" shall mean a nationally recognized
accounting firm, bank or investment banking firm which shall be designated by
the Company and which firm does not (and whose directors, officers, employees
and affiliates do not) have a direct or indirect material equity interest in the
Company or any of its subsidiaries.
"Initial Debentures" has the meaning set forth in Section 7.1(b) of
this
Agreement.
"Initial Partnership Proceeds" means the aggregate proceeds received
by the Partnership from the sale of the Preferred Partnership Securities and the
General Partner Capital Contribution.
"Interest" means the entire ownership interest of a Partner in the
Partnership at any particular time, including, without limitation, its interest
in the capital, profits, and losses of, and distributions from, the Partnership.
"Investment Affiliate" means that any corporation, partnership,
limited liability company or other entity (other than the Partnership or the
Trust) that (i) is controlled by the Company and (ii) is not an investment
company by reason of Section 3(a) or 3(b) of the 1940 Act or is otherwise an
eligible recipient of funds directly or indirectly from the Trust pursuant to an
order issued by the Securities and Exchange Commission.
"Investment Event of Default" means an event of default under any
Affiliate Investment Instrument or any Investment Guarantee.
"Investment Guarantee" has the meaning specified in Section 1.01 of
the Trust Agreement.
"Investment Offer" has the meaning specified in Section 7.2(b) of this
Agreement.
"Limited Partner" means the Trust, in its capacity as the limited
partner of the Partnership, and any Person who is admitted to the Partnership as
a limited partner pursuant to the terms of this Agreement, in such Person's
capacity as a limited partner of the Partnership.
"Liquidator" has the meaning specified in Section 13.3 of this
Agreement.
"L.P. Certificate" means a certificate substantially in the form
attached hereto as Annex A, evidencing the Preferred Partnership Securities held
by a Limited Partner.
"Majority in Liquidation Preference" means Holder(s) of Preferred
Partnership Securities who are the record owners of Preferred
Partnership Securities whose aggregate liquidation preferences represent more
than 50% of the aggregate liquidation preference of all Preferred Partnership
Securities then outstanding.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Net Income" and "Net Loss", respectively, for any Fiscal Period
mean the income and loss, respectively, of the Partnership for such Fiscal
Period as determined in accordance with the method of accounting followed by the
Partnership for United States federal income tax purposes, including any income
exempt from tax and any noncapital, nondeductible expenditures of the
Partnership which are described in the Code.
"Original Partnership Agreement" has the meaning set forth in the
recitals to this Agreement.
"Partners" means the General Partner and the Limited Partner,
collectively.
"Partnership Covered Person" means any Partner, any Affiliate of a
Partner or any officers, directors, shareholders, partners, members, employees,
representatives or agents of a Partner or its respective Affiliates, or any
employee or agent of the Partnership or its Affiliates or any Special
Representative.
"Partnership Enforcement Event" has the meaning set forth in Section
6.2(h)(i) of this Agreement.
"Partnership Guarantee" means the Partnership Guarantee Agreement
dated as of ________ __, ____ by the Company in favor of the Preferred
Partnership Security Holders with respect to the Preferred Partnership
Securities, as amended or supplemented from time to time.
"Partnership Indemnified Person" means the General Partner, any
Special Representative, any Affiliate of the General Partner or any Special
Representative or any officers, directors, shareholders, members, partners,
employees, representatives or agents of the General Partner or any Special
Representative, or any of their respective Affiliates, or any employee or agent
of the Partnership or its Affiliates.
"Partnership Investment Company Event" means that the General Partner
shall have requested and received an opinion of nationally recognized
independent legal counsel experienced in such matters to the effect that as a
result of the occurrence on or after the date hereof of a Change in 1940 Act
Law, the Partnership is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Partnership Liquidation Distribution" has the meaning set forth in
Section 6.2(g) of this Agreement.
"Partnership Special Event" means either a Partnership Tax Event or a
Partnership Investment Company Event.
"Partnership Tax Event" means that the General Partner shall have
requested and received an opinion of nationally recognized independent tax
counsel experienced in such matters to the effect that there has been a Tax
Action which affects any of the events described in (i) through (iv) below and
that there is more than an insubstantial risk that (i) the Partnership is, or
will be, subject to United States federal or United Kingdom corporate income tax
with respect to income accrued or received on the Affiliate Investment
Instruments or the Eligible Debt Securities, (ii) the Partnership is, or will
be, subject to more than a de minimis amount of other taxes, duties or other
governmental charges, (iii) interest payable by an Investment Affiliate with
respect to the Affiliate Investment Instruments is not, or will not be,
deductible by such Investment Affiliate for United States federal or United
Kingdom corporate income tax purposes, or (iv) Additional Amounts (as defined in
the Indentures, the Partnership Guarantee and the Trust Guarantee) are payable
in respect of Affiliate Investment Instruments, any Investment Guarantee, the
Partnership Guarantee or any Trust Guarantee.
"Paying Agent" shall have the meaning set forth in Section 12.5
of this Agreement.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, association, joint stock company, limited
liability company, trust, unincorporated association, or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Power of Attorney" means the Power of Attorney granted pursuant to
Section 15.2 of this Agreement.
"Preferred Entitlement" shall have the meaning set forth in section
6.2(b)(I) of this Agreement.
"Preferred Partnership Securities" represent the Interests of Limited
Partners and have the preference and designation set forth in Section 6.2(a) of
this Agreement.
"Preferred Partnership Securities Purchase Agreement" means the
partnership purchase agreement between the Trust and the Partnership providing
for the purchase of the Preferred Partnership Securities.
"Preferred Partnership Security Owner" means, with respect to a Book
Entry Interest, a Person who is the beneficial owner of such Book Entry Interest
as reflected on the books of DTC, or on the books of a Person maintaining an
account with DTC (directly as a participant or as an indirect participant, in
each case in accordance with the rules of DTC or such participant).
"Preferred Return" means an amount equal to % per annum, of the stated
liquidation preference of a Preferred Partnership Security, calculated on the
basis of a 360-day year consisting of twelve 30-day months, or, for any period
shorter that a full 90-day quarter, on the basis of the actual number of days
elapsed in such quarter. The Preferred Return shall be calculated on the basis
of quarterly periods ending on , , , and , and shall accumulate and be
cumulative from the date of original issue.
"Preferred Trust Securities" has the meaning specified in Section 8.01
of the Trust Agreement.
"Preferred Trust Securities Guarantee" means the Preferred Trust
Securities Guarantee Agreement dated as of ________ __, ____, entered into by
the Company, as Guarantor, for the benefit of the holders of the Preferred Trust
Securities.
"Property Trustee" has the meaning set forth in Section 1.01 of the
Trust Agreement.
"Record Date" means (i) as long as the Preferred Trust Securities
remain (or, in the event that the Trust is liquidated in connection with a
Special Trust Event, as long as the Preferred Partnership Securities remain) in
book-entry only form, one Business Day prior to the relevant payment dates and
(ii) in the event that the Preferred Trust Securities (or in the event that the
Trust is liquidated in connection with a Special Trust Event, the Preferred
Partnership Securities) shall not continue to remain in book-entry only form,
the 15th day of the month of the relevant payment date.
"Redemption Notice" has the meaning set forth in Section 6.2(e) of
this Agreement.
"Redemption Price" has the meaning set forth in Section 6.2(c) of this
Agreement.
"Registrar" has the meaning set forth in Section 12.5 of this
Agreement.
"Reinvestment Criteria" has the meaning specified in Section 7.2(c) of
this Agreement.
"S&P" means Standard & Poor's Ratings Services or any successor
thereof.
"Securities Act" means the Securities Act of 1933, as amended.
"Special Representative" has the meaning set forth in Section
6.2(h)(i) of this Agreement.
"Successor Partnership Securities" has the meaning set forth in
Section 11.11 of this Agreement.
"Tax Action" has the meaning set forth in Section 1.01 of the Trust
Agreement.
"Tax Matters Partner" means the General Partner designated as such in
Section 11.10 of this Agreement.
"10% in Liquidation Preference" means Holder(s) of the Preferred
Partnership Securities voting together as a single class representing 10% of the
aggregate liquidation amount of the Preferred Partnership Securities.
"Treasury Regulations" means the income tax regulations, including
temporary and property regulations, promulgated under the Code by the United
States Treasury Department, as such regulations may be amended from time to time
(including corresponding provisions of succeeding regulations).
"Trust" has the meaning set forth in the first paragraph of this
Agreement.
"Trust Agreement" means the Amended and Restated Trust Agreement of
the Trust among the Company, as Depositor, the Property Trustee, the Delaware
Trustee, and the Administrative Trustees, dated as of ________ __, ____, as
amended from time to time in accordance with its terms.
"Trust Guarantees" means the Common Trust Securities Guarantee and the
Preferred Trust Securities Guarantee.
"Underwriting Agreement" means the Underwriting Agreement dated
________ __, ____ among the Company, the Trust, the Partnership and the
underwriters named in Schedule _ thereto.
ARTICLE II.
CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PREFERRED PARTNERSHIP SECURITIES HOLDERS
Section 2.1 ____ CONTINUATION OF THE PARTNERSHIP. The parties hereto
agree to continue the Partnership in accordance with the terms of this
Agreement. The General Partner, for itself and as agent for the Limited
Partners, shall make every reasonable effort to assure that all certificates and
documents are properly executed and shall accomplish all filing, recording,
publishing and other acts necessary or appropriate for compliance with all the
requirements for the continuation of the Partnership as a limited partnership
under the Act and under all other laws of the State of Delaware or such other
jurisdictions in which the General Partner determines that the Partnership may
conduct activities. The rights and duties of the Partners shall be as provided
herein and, subject to the terms hereof, under the Act.
Section 2.2 ____ NAME. The name of the Partnership is "TXU Europe
Funding I, L.P.", as such name may be modified from time to time by the General
Partner following written notice to the Limited Partners.
Section 2.3 ____ PURPOSES OF THE PARTNERSHIP. The purpose of the
Partnership is to carry on the business of making and managing investments with
a view to the realization of profit to be shared between the Limited Partners
and the General Partner as set forth herein, and to that intent: (a) to issue
limited partnership interests in the Partnership in the form of Preferred
Partnership Securities, (b) to receive the General Partner Capital Contribution,
(c) to use substantially all of the Initial Partnership Proceeds to purchase, as
an investment, beneficial interests in the Initial Debentures, (d) to invest, at
all times, an amount equal to at least __% of the Initial Partnership Proceeds
in Eligible Debt Securities, (e) to receive interest and other payments on the
Affiliate Investment Instruments and the Eligible Debt Securities held by the
Partnership from time to time, (f) to make Distributions on the Preferred
Partnership Securities and distributions on the General Partner Interest if, as
and when declared by the General Partner in its sole discretion, (g) subject to
the restrictions and conditions contained in this Agreement, to make additional
investments in Affiliate Investment Instruments and Eligible Debt Securities and
to dispose of any such investments and (h) except as otherwise limited herein,
to enter into, make and perform all contracts and other undertakings, and engage
in those activities and transactions as the General Partner may reasonably deem
necessary or advisable for the carrying out of the foregoing purposes of the
Partnership. The Partnership may not engage in any other activities or
operations except as contemplated by the preceding sentence.
Section 2.4 ____ TERM. The term of the Partnership commenced upon the
filing of the Certificate in the Office of the Secretary of State of the State
of Delaware and shall continue until the Partnership is dissolved in accordance
with the provisions of this Agreement.
Section 2.5 ____ REGISTERED AGENT AND OFFICE. The Partnership's
registered agent and office in Delaware shall be
_____________________________________. At any time, the General Partner may
designate another registered agent and/or registered office.
Section 2.6 ____ PRINCIPAL PLACE OF ACTIVITY. The principal place of
activity of the Partnership shall be c/o [TXU Business Services Company, Energy
Plaza, 0000 Xxxxx Xxxxxx, Xxxxxx, Xxxxx 00000] [U.S. address required?]. Upon
ten days' written notice to the Partners, the General Partner may change the
location of the Partnership's principal place of activity, provided that such
change has no material adverse effect upon any Partner.
Section 2.7 NAME AND ADDRESS OF GENERAL PARTNER. The name and address
of the General Partner are as follows:
TXU Europe Limited
The Adelphi
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx
XX0X 0XX
Attn: Treasurer
The General Partner may change its name or address from time to time, in which
event the General Partner shall promptly notify the Limited Partners of any such
change.
Section 2.8 ____ QUALIFICATION TO CONDUCT ACTIVITIES. The General
Partner shall cause the Partnership to become qualified, formed or registered
under the applicable qualification, fictitious name or similar laws of any
jurisdiction in which the Partnership conducts activities.
Section 2.9 ADMISSION OF HOLDERS OF PREFERRED PARTNERSHIP SECURITIES.
(a) _____ Without execution of this Agreement, upon the receipt of an
L.P. Certificate by a Person, whether by purchase, gift, devise or other valid
transfer, which receipt shall be deemed to constitute a request by such Person
that the books and records of the Partnership reflect such Person's admission as
a Limited Partner, such Person shall be admitted to the Partnership as a Limited
Partner and shall become bound by this Agreement.
(b) _____ The name and mailing address of each Partner and the amount
contributed by such Partner to the capital of the Partnership shall be listed on
the books and records of the Partnership. The General Partner shall be required
to update the books and records from time to time as necessary to accurately
reflect such information.
ARTICLE III.
CAPITAL CONTRIBUTIONS; REPRESENTATION OF
PREFERRED PARTNERSHIP SECURITY
HOLDER'S INTEREST; CAPITAL ACCOUNTS
Section 3.1 ____ CAPITAL CONTRIBUTIONS.
(a) _____ The General Partner has, prior to the date hereof,
contributed an aggregate of $15.00 to the capital of the Partnership, which
amount is equal to at least 15% of the total capital contributions to the
Partnership, after taking into account the contribution of the Limited Partner
referred to in Section 3.1(b). Contemporaneous with the issuance of the
Preferred Partnership Securities, the General Partner shall make the General
Partner Capital Contribution.
(b) _____ The Limited Partner has, prior to the date hereof,
contributed the amount of $85.00 to the capital of the Partnership.
(c) _____ On the Closing Date, the Limited Partner shall, in exchange
for a definitive L.P. Certificate, contribute to the capital of the Partnership
on behalf of the Trust an amount in cash equal to the gross proceeds from the
sale of the Preferred Trust Securities.
(d) _____ No Limited Partner shall at any time be required to make any
additional capital contributions to the Partnership, except as may be required
by law.
Section 3.2 ____ PREFERRED PARTNERSHIP SECURITY HOLDER'S INTEREST
REPRESENTED BY PREFERRED PARTNERSHIP SECURITIES. A Preferred Partnership
Security Holder's Interest shall be represented by the Preferred Partnership
Securities held by or on behalf of such Partner. Each Preferred Partnership
Security Holder's respective ownership of Preferred Partnership Securities shall
be set forth on the books and records of the Partnership. Each Partner hereby
agrees that its Interest in the Partnership shall for all purposes be personal
property. No Partner shall have an interest in specific Partnership property.
Section 3.3 ____ CAPITAL ACCOUNTS.
(a) _____ Establishment and Maintenance of Capital Accounts. The
Partnership shall establish and maintain a separate account (the "Capital
Account") for each Partner. The initial balance of the Capital Account for each
Partner shall be the amount as set out opposite the name of each of the Partners
on Schedule 1 attached hereto. The Capital Account of each Partner shall be
increased by (i) the dollar amount of any additional contributions made by such
Partner and (ii) allocations to such Partner of income and gain (including
income exempt from tax). The Capital Account of each Partner shall be decreased
by (i) the dollar amount of any distributions made to such Partner, and (ii)
allocations to such Partner of loss and deduction (including noncapital,
nondeductible expenditures not deductible in computing the Partnership's income
or loss for United States federal income tax purposes).
(b) _____ Compliance with Regulations. Notwithstanding any other
provision of this Agreement to the contrary, the provisions of Section 3.3(a)
regarding the maintenance of Capital Accounts shall be construed so as to comply
with the Treasury Regulations promulgated under section 704 of the Code. The
General Partner, in its sole discretion, is authorized to modify such provisions
to the minimum extent necessary to comply with such Treasury Regulations.
Section 3.4 ____ INTEREST ON CAPITAL CONTRIBUTIONS. Except as provided
herein, no Partner shall be entitled to interest on or with respect to any
capital contribution to the Partnership.
Section 3.5 ____ WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS.
Subject to Section 3.1(b) hereof, no Partner shall be entitled to withdraw any
part of such Partner's capital contribution to the Partnership. No Partner shall
be entitled to receive any distributions from the Partnership, except as
provided in this Agreement.
ARTICLE IV.
ALLOCATIONS
Section 4.1 ____ NET INCOME AND NET LOSSES. After giving effect to the
special allocation provisions set forth in Section 4.2, which special
allocations shall take precedence over any allocations made pursuant to this
Section 4.1,
(a) _____ the Partnership's Net Income for each Fiscal Period of the
Partnership shall be allocated as follows:
(i) First, to each Holder of a Preferred Partnership
Security in an amount equal to the excess, if any, of (x) all Net
Losses, if any, allocated to each such Holder from the date of
issuance of the Preferred Partnership Security through and including
the close of such Fiscal Period pursuant to Section 4.1(b)(ii) below
over (y) the amount of Net Income, if any, allocated to each such
Holder pursuant to this Section 4.1(a)(i) in all prior Fiscal Periods.
(ii) Second, to the Holders of the Preferred Partnership
Securities, an amount of Net Income equal to the excess of (x) the
Preferred Return accumulated on the Preferred Partnership Securities
from the date of their issuance through and including the last day of
such Fiscal Year, over (y) the amount of Net Income allocated to the
Holders of the Preferred Partnership Securities pursuant to this
Section 4.1(a)(ii) in all prior Fiscal Periods. Amounts allocated to
all Preferred Partnership Security Holders shall be allocated among
such Holders in proportion to the number of Preferred Partnership
Securities held by such Holders.
(iii) Any remaining Net Income shall be allocated to the
General Partner.
(b) _____ The Partnership's Net Loss for any Fiscal Period shall be
allocated as follows:
(i) First, to the General Partner until the balance of the
General Partner's Capital Account is reduced to zero, provided,
however, that the aggregate amount of Net Losses allocated to the
General Partner pursuant to this Section 4.1(b)(i) shall not exceed
the sum of 14% of the total capital contributions of all Partners plus
the aggregate Net Income allocated to the General Partner pursuant to
this Section 4.1.
(ii) Second, among the Holders of Preferred Partnership
Securities in proportion to their respective aggregate Capital Account
balances, until the Capital Account balances of such Holders are
reduced to zero.
(iii) Any remaining Net Loss shall be allocated to the
General Partner.
(c) _____ DAILY DETERMINATION. For purposes of determining the
profits, losses or any other items allocable to any period, profits, losses and
any such other items shall be determined on a daily basis, unless the General
Partner determines that another method is permissible under Section 704 of the
Code and the Treasury Regulations promulgated thereunder. Unless otherwise
specified, such profits, losses or other items shall be determined for each
Fiscal Period.
Section 4.2 ____ SPECIAL ALLOCATIONS.
(a) _____ All expenditures that are (i) incurred by, or on behalf of,
the Partnership and (ii) paid, or otherwise reimbursed, by the General Partner
out of its own funds shall be allocated entirely to the General Partner.
(b) _____ In the event any Partner unexpectedly receives any
adjustments, allocations or distributions described in Treasury Regulation
Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of the Partnership's income
(including gross income) shall be specially allocated to such Partner in a
manner sufficient to eliminate the deficit, if any, in the balance of the
Capital Account of such Partner as quickly as possible. The foregoing is
intended to be a "qualified income offset" provision as described in Treasury
Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in
all respects in accordance with such Treasury Regulation.
(c) _____ SECTION 704 COMPLIANCE. While this Agreement does not
specifically provide for certain provisions required by Treasury Regulation
Sections 1.704-1(b) and 1.704-2 because those provisions apply to transactions
that are not expected to occur as regards the Partnership, the Partners intend
that the allocations under Section 4.1 conform to Treasury Regulations Sections
1.704-1(b) and 1.704-2 (including, without limitation, the minimum gain
chargeback, chargeback of partner nonrecourse debt minimum gain and partner
nonrecourse debt provisions of such Treasury Regulations), and, to the extent
necessary due to the occurrence of unexpected events, the General Partner shall
make such changes in the allocations under Section 4.1 as it believes are
reasonably necessary to meet the requirements of such Treasury Regulations.
(d) _____ ADJUSTMENT OF ALLOCATIONS. If the allocations set forth in
this Article IV are adjusted by the Internal Revenue Service and the Tax Matters
Partner agrees to such adjustments, such allocations shall be amended to the
minimum extent necessary to conform with such adjustments.
(e) _____ ADDITIONAL ALLOCATIONS. Notwithstanding the foregoing, if,
upon the final dissolution and termination of the Partnership and after taking
into account all allocations of Net Income and Net Losses (and other tax items)
under this Article IV, the distributions to be made in accordance with positive
Capital Account balance would not result in a return of the liquidation
preference of the Preferred Partnership Securities plus the accumulated and
unpaid Preferred Return, then gross items of income and gain (and other tax
items) for the taxable year of the final dissolution and termination (and, to
the extent permitted under section 761(c) of the Code, gross items of income and
gain, and other tax items, for the immediately preceding taxable year) shall be
allocated to the Partners to increase or decrease their respective Capital
Account balances so that the final distribution will be result in a an amount
equal to the aggregate liquidation preference of the Preferred Partnership
Securities plus the amount of accumulated and unpaid Preferred Return being
distributed to the Limited Partners.
Section 4.3 ____ WITHHOLDING. The Partnership shall comply with
withholding requirements under Federal, state and local law and shall remit
amounts withheld to and file required forms with applicable jurisdictions. To
the extent that the Partnership is required to withhold and pay over any amounts
to any authority with respect to distributions or allocations to any Partner,
the amount withheld shall be deemed to be a distribution in the amount of the
withholding to the Partner. In the event of any claimed over-withholding,
Partners shall be limited to an action against the applicable jurisdiction. If
the amount withheld was not withheld from actual distributions, the Partnership
may reduce subsequent distributions by the amount of such withholding. Each
Partner agrees to furnish the Partnership with any representations and forms as
shall reasonably be requested by the Partnership to assist it in determining the
extent of, and in fulfilling, its withholding obligations.
ARTICLE V.
DISTRIBUTIONS
Section 5.1 ____ DISTRIBUTIONS. The Limited Partners shall receive
periodic Distributions with respect to Preferred Entitlements, redemption
payments and liquidation distributions in accordance with the terms of the
Preferred Partnership Securities set forth in Article VI. The General Partner
shall in its sole discretion determine whether and when Distributions shall be
payable; provided, however, that if the General Partner shall determine a
Distribution will not be paid on a scheduled Distribution Payment Date, the
General Partner shall give notice of its determination not to pay such
Distribution to Limited Partners of record as of the Record Date for the payment
of such Distribution; provided, further, however, that the General Partner shall
not declare Distributions, and no Distributions shall be payable by the
Partnership to the General Partner in respect of its General Partner Interest
unless all Distributions in respect of accumulated and unpaid Preferred
Entitlements, including any Distributions in respect of Compounded Preferred
Entitlements, have been paid in full for all prior Fiscal Periods. Subject to
the immediately preceding sentence, to the extent that the aggregate payments of
interest (or dividends) received by the Partnership in respect of Affiliate
Investment Instruments and Eligible Debt Securities for each Fiscal Period
exceed the amount of Distributions in respect of Preferred Entitlements,
including any Distributions in respect of Compounded Preferred Entitlements,
paid on the Preferred Partnership Securities for such Fiscal Period, the General
Partner, in its sole discretion may declare and distribute such excess funds to
the General Partner in respect of its General Partner Interest.
Section 5.2 ____ LIMITATIONS ON DISTRIBUTIONS. The Partnership shall
not make a Distribution to any Partner on account of such Partner's Interest if
such Distribution would violate Section 17-607 of the Act or other applicable
law.
ARTICLE VI.
ISSUANCE OF PREFERRED PARTNERSHIP SECURITIES
Section 6.1 GENERAL PROVISIONS REGARDING PREFERRED PARTNERSHIP
SECURITIES.
(a) _____ There is hereby authorized for issuance and sale Preferred
Partnership Securities having an aggregate liquidation preference outstanding
not greater than $___________ and having the designation, annual distribution
rate, liquidation preference, redemption terms, and other powers, preferences
and special rights and limitations set forth in this Article VI.
(b) _____ The payment of Distributions (including payments of
distributions by the Partnership in liquidation or on redemption in respect of
Preferred Partnership Securities) shall be guaranteed by the Company pursuant to
and to the extent set forth in the Partnership Guarantee. The Preferred
Partnership Security Holders hereby authorize the General Partner to hold the
Partnership Guarantee on behalf of the Preferred Partnership Security Holders.
In the event of an appointment of a Special Representative pursuant to Section
6.2(i), among other things, to enforce the Partnership Guarantee, the Special
Representative may take possession of the Partnership Guarantee for such
purpose. If no Special Representative has been appointed to enforce the
Partnership Guarantee, the General Partner has the right to enforce the
Partnership Guarantee on behalf of the Preferred Partnership Security Holders.
The Preferred Partnership Security Holders, by acceptance of such Preferred
Partnership Securities, acknowledge and agree to the subordination provisions
in, and other terms of, the Partnership Guarantee.
(c) _____ The Partnership may not issue any interests in the
Partnership other than the Preferred Partnership Securities and the General
Partner Interest, provided that the Partnership may accept additional capital
contributions from the General Partner with respect to the General Partner
Interest. All Preferred Partnership Securities shall rank senior to all other
Interests in the Partnership in respect of the right to receive Distributions.
All Preferred Partnership Securities redeemed, purchased or otherwise acquired
by the Partnership shall be canceled. The Preferred Partnership Securities will
be issued in registered form only.
(d) _____ No Holder shall be entitled as a matter of right to
subscribe for or purchase, or have any preemptive right with respect to, any
part of any new or additional limited partnership interests, or of securities
convertible into any Preferred Partnership Securities or other limited
partnership interests, whether now or hereafter authorized and whether issued
for cash or other consideration or by way of a distribution.
(e) _____ Any of the Preferred Partnership Securities that are owned
by the Company or by any entity directly or indirectly controlled by, or under
direct or indirect common control with, the Company, shall not be entitled to
vote or consent with respect to any Preferred Partnership Security owned by it,
and shall, for purposes of such vote or consent, be treated as if they were not
outstanding; provided, however, that persons (other than affiliates of the
Company) to whom the Company or any of its subsidiaries have pledged Preferred
Partnership Securities may vote or consent with respect to such pledged
Preferred Partnership Securities under any of the circumstances described in
Section 6.2.
Section 6.2 PREFERRED PARTNERSHIP SECURITIES.
(a) _____ DESIGNATION. A total of _________________ Preferred
Partnership Securities, liquidation preference $25 per Preferred Partnership
Security, are hereby designated as "___% Preferred Partnership Securities".
(b) PREFERRED ENTITLEMENTS AND DISTRIBUTIONS.
(i) Preferred Entitlements. Preferred Partnership Security
Holders shall be entitled to share in the profits of the Partnership
to the extent of amounts (Preferred Entitlements") determined at a
rate per annum of % of the stated liquidation preference of $25 per
Preferred Partnership Security, calculated on the basis of a 360-day
year consisting of twelve 30-day months, and computed by reference to
quarterly periods ____________ ending ____________ on ____________ ,
____________ , , and of each year ("Distribution Payment Dates"). For
any period shorter than a full 90-day quarter, Preferred Entitlements
will be computed on the basis of the actual number of days elapsed in
such 90-day quarter. Preferred Entitlements shall, from the date of
original issue, accumulate and be cumulative. Preferred Entitlements
not distributed on the scheduled Distribution Payment Date will
accumulate and compound quarterly at the rate of __% per annum
("Compounded Preferred Entitlements"). Preferred Entitlements and
Compounded Preferred Entitlements (if any) shall be cumulative from
the Closing Date. The relevant Distribution Payment Date in respect of
any Preferred Entitlement shall be the last day of the quarter in
respect of which the Preferred Entitlement is computed. In the event
that the last day of any such quarter is not a Business Day, then the
relevant Distribution Payment Date shall be the next succeeding day
which is a Business Day (and without any interest or other payment in
respect of distribution subject to the delay) except that, if such
Business Day is in the next succeeding calendar year, such relevant
Distribution Payment Date shall be the immediately preceding Business
Day (without any reduction in interest or other payments in respect of
such early payment).
(ii) Distributions. Distributions in respect of Preferred
Entitlements on the Preferred ------------- Partnership Securities
will be payable if, as and when, declared by the General Partner in
its sole discretion, out of the assets of the Partnership legally
available therefor. Distributions will be payable to the Holders as
they appear on the books and records of the Partnership on the
relevant Record Date. If the Trust or the Property Trustee is the
Holder of the Preferred Partnership Securities, all Distributions of
cash shall be made by wire transfer of same day funds to such Holder
by 10:00 a.m., New York City time, on the applicable Distribution
Payment Date or the Business Day specified in section 6.2(b)(i).
Distributions payable in respect of Preferred Entitlements on any
Preferred Partnership Securities that are not punctually paid on any
Distribution Payment Date or the Business Day specified in section
6.2(b)(i) will not to be payable to the Person in whose name such
Preferred Partnership Securities are registered on the relevant record
date, and such Distribution will instead be payable to the Person in
whose name such Preferred Partnership Securities are registered on the
special record date or other specified date for payment of such
Distribution.
(c) _____ OPTIONAL REDEMPTION. Preferred Partnership Securities shall
be redeemable at the option of the General Partner, in whole or in part, from
time to time, on or after ________ __, ____, upon not less than 30 nor more than
60 days notice, at an amount per Preferred Partnership Securities equal to $25
plus accumulated and unpaid Distributions thereon, including any Compounded
Distributions (the "Redemption Price"). The Partnership may not redeem the
Preferred Partnership Securities in part unless all accumulated and unpaid
Distributions, including any Compounded Distributions, have been paid in full on
all Preferred Partnership Securities for all Fiscal Periods terminating on or
prior to the date of redemption. If a partial redemption of the Preferred
Partnership Securities would result in the delisting of the Preferred Trust
Securities (or, if the Trust is liquidated in connection with a Special Trust
Event, or if a partial redemption would result in the delisting of the Preferred
Partnership Securities), the Partnership may only redeem the Preferred
Partnership Securities in whole but not in part.
(d) _____ SPECIAL EVENT REDEMPTIONS. If, at any time, a Partnership
Special Event shall occur and be continuing, the General Partner shall, within
90 days following the occurrence of such Partnership Special Event, elect to
either (i) redeem the Preferred Partnership Securities in whole (but not in
part), upon not less than 30 or more than 60 days notice at the Redemption
Price, provided that if at the time there is available to the Partnership the
opportunity to eliminate, within such 90-day period, the Partnership Special
Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable measure that in the sole
judgment of the General Partner has or will cause no adverse effect on the
Partnership, the Trust, or the Company, the General Partner will pursue such
measure in lieu of redemption; or (ii) cause the Preferred Partnership
Securities to remain outstanding, provided that in the case of this clause (ii),
the General Partner shall pay any and all costs and expenses incurred by or
payable by the Partnership which are attributable to the Partnership Special
Event.
(e) REDEMPTION PROCEDURES.
(i) Notice of any redemption of Preferred Partnership
Securities (a "Redemption Notice") will be given by the Partnership by
mail to each Holder of Preferred Partnership Securities to be redeemed
not fewer than 30 nor more than 60 days before the date fixed for
redemption. For purposes of the calculation of the date of redemption
and the dates on which notices are given pursuant to this Section
6.2(e)(i), a Redemption Notice shall be deemed to be given on the day
such notice is first mailed, by first-class mail, postage prepaid, to
Holders of Preferred Partnership Securities. Each Redemption Notice
shall be addressed to the Holders of Preferred Partnership Securities
at the address of each such Holder appearing in the books and records
of the Partnership. No defect in the Redemption Notice or in the
mailing thereof with respect to any Holder shall affect the validity
of the redemption proceedings with respect to any other Holder.
(ii) In the event that fewer than all the outstanding
Preferred Partnership Securities are to be redeemed, the Preferred
Partnership Securities to be redeemed shall be redeemed pro rata
provided, that, in the event Preferred Partnership Securities are held
in book-entry only form by DTC or its nominee (or any successor
Clearing Agency or its nominee), DTC will reduce, in accordance with
DTC's customary procedures, the amount of the interest of each
Clearing Agency Participant in the Preferred Partnership Securities to
be redeemed; provided, that if, as a result of such pro rata
redemption, Holders would hold fractional interests in the Preferred
Partnership Securities, the General Partner may adjust the amount of
the interest of each Holder to be redeemed to avoid such fractional
interests.
(iii) If the Partnership gives a Redemption Notice (which
notice will be irrevocable), then by 12:00 noon, New York City time,
on the redemption date, the Partnership (A) if the Preferred
Partnership Securities are in book-entry only form with DTC, will
deposit irrevocably with DTC funds sufficient to pay the applicable
Redemption Price and will give DTC irrevocable instructions and
authority to pay the Redemption Price in respect of the Preferred
Partnership Securities held through DTC in global form or (B) if the
Preferred Partnership Securities are held in certificated form, will
deposit with the Paying Agent, funds sufficient to pay the applicable
Redemption Price of the amount of any such Preferred Partnership
Securities and will give to the Paying Agent irrevocable instructions
and authority to pay such amounts to the Holders of Preferred
Partnership Securities, upon surrender of their certificates, by
check, mailed to the address of the relevant Holder appearing on the
books and records of the Partnership on the redemption date; provided,
however, that for so long as the Trust or the Property Trustee of the
Trust shall hold the Preferred Partnership Securities, payment of cash
shall be made by wire in same day funds to the Holder by 12:00 Noon,
New York City time, on the redemption date. [For these purposes, the
applicable Redemption Price shall not include Distributions which are
being paid to Holders who were Holders on a relevant record date.]
Upon satisfaction of the foregoing conditions, then immediately prior
to the close of business on the date of such deposit or payment, all
rights of Holders of such Preferred Partnership Securities so called
for redemption will cease, except the right of the Holders to receive
the Redemption Price, but without interest on such Redemption Price,
and from and after the date fixed for redemption, such Preferred
Partnership Securities will not accumulate Distributions or bear
interest. In the event that any date fixed for redemption of Preferred
Partnership Securities is not a Business Day, then payment of the
Redemption Price payable on such date will be made on the next
succeeding Business Day (and without any interest 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 in each case, with the same force and effect as if made
on such date fixed for redemption. In the event that payment of the
Redemption Price is improperly withheld or refused and not paid by
either the Partnership or the Company pursuant to the Partnership
Guarantee, Distributions on the Preferred Partnership Securities
called for Redemption will continue to accumulate, to the extent that
payment of such interest is legally available, from the original
redemption date until the Redemption Price is actually paid. The
Partnership shall not be required to register or cause to be
registered the transfer of any Preferred Partnership Securities which
have been called for redemption.
(f) COMPANY PURCHASES. Subject to the provisions of this Section
6.2 and applicable law (including, without limitation, Federal securities laws),
if Preferred Partnership Securities have been distributed to the Holders (as
defined in the Trust Agreement) of Preferred Trust Securities, the Company or
any of its subsidiaries may at any time and from time to time purchase
outstanding Preferred Partnership Securities by tender, in the open market, or
by private agreement.
(g) LIQUIDATION DISTRIBUTION UPON DISSOLUTION. In the event of any
voluntary or involuntary liquidation, dissolution, winding-up or termination of
the Partnership, the Holders of Preferred Partnership Securities at the time
outstanding will be entitled to receive out of the assets of the Partnership
such amount as is determined in accordance with Section 13.4 (the "Partnership
Liquidation Distribution") payable in cash.
(h) VOTING RIGHTS.
(i) SPECIAL REPRESENTATIVE.
(A) If one or more of the following events shall occur and
be continuing (each a "Partnership Enforcement Event"): (i) arrearages
on distributions on the Preferred Partnership Securities shall exist
for ___ consecutive quarterly distribution periods, (ii) the Company
is in default on any of its obligations under the Partnership
Guarantee or (iii) an Investment Event of Default on any Affiliate
Investment Instrument or a default under any Investment Guarantee, as
the case may be, occurs and is continuing then the Property Trustee,
for so long as the Preferred Partnership Securities are held by the
Property Trustee, will have the right, or the Holders of the Preferred
Partnership Securities, upon the affirmative vote of at least a
Majority in Liquidation Preference of the Preferred Partnership
Securities, shall have the right, to the exclusion of the General
Partner, (a) to appoint and authorize a special representative of the
Partnership and the Limited Partners (a "Special Representative") to
enforce (1) to the maximum extent permitted by applicable law, the
Partnership's creditors' rights and other rights, including the right
to receive payments under, with respect to the Affiliate Investment
Instruments and the Investment Guarantees, (2) the rights of the
Holders of the Preferred Partnership Securities under the Partnership
Guarantee, and (3) the rights of the Holders of the Preferred
Partnership Securities to receive Distributions (only if, and to the
extent, declared by the General Partner, in its sole discretion, out
of funds legally available therefor) on the Preferred Partnership
Securities, and (b) under the Partnership Guarantee to enforce the
terms of the Partnership Guarantee, including the right to enforce the
covenant restricting certain payments of the Company and Finance
Subsidiaries. Under no circumstances, however, shall the Special
Representative have authority to cause the General Partner to declare
Distributions on the Preferred Partnership Securities nor to have any
authority concerning the selection of Partnership Investments. When
the Special Representative acts to enforce the Partnership's
creditors' rights and other rights with respect to the Affiliate
Investment Instruments and the Investment Guarantees, the Special
Representative acts as an agent of the Partnership. When the Special
Representative acts to enforce the rights of the Holders of the
Preferred Partnership Securities under the Partnership Guarantee or
their rights to receive Distributions on the Preferred Partnership
Securities, the Special Representative acts as an agent of the Holders
of the Preferred Partnership Securities. In addition, the Special
Representative shall not, by virtue of acting in such capacity, be
admitted as a general or limited partner in the Partnership or
otherwise be deemed to be a general or limited partner in the
Partnership and shall have no liability for the debts, obligations, or
liabilities of the Partnership.
(B) In furtherance of the foregoing, and without limiting
the powers of any Special Representative so appointed and to avoid any
doubt concerning the powers of the Special Representative, any Special
Representative, in its own name, in the name of the Partnership, in
the name of the Limited Partners, or otherwise, may institute, or
cause to be instituted, a proceeding, including, without limitation,
any suit in equity, an action at law or other judicial or
administrative proceeding, to enforce on behalf of the Partnership the
Partnership's rights directly against the Company or any other obligor
in connection with its obligations to the Partnership, and may
prosecute such proceeding to judgment or final decree, and enforce the
same against the Company or any other obligor in connection with such
obligations and collect, out of the property, wherever situated, of
the Company or any such other obligor upon such obligations, the
monies adjudged or decreed to be payable in the manner provided by
law. The General Partner agrees to execute and deliver such documents
as may be necessary, appropriate or convenient for the Special
Representative to enforce the foregoing rights and obligations on
behalf and in the name of the Partnership.
(C) If the Special Representative fails to enforce its
rights under any Affiliate Investment Instrument or any Investment
Guarantee after a holder of Preferred Partnership Securities has made
a written request, such holder of record of Preferred Partnership
Securities may to the fullest extent permitted by law directly
institute a legal proceeding against the issuer of that Affiliate
Investment Instrument or the Company to enforce the rights of the
Special Representative and the Partnership under that Affiliate
Investment Instrument or any Investment Guarantee without first
instituting any legal proceeding against the Special Representative,
the Partnership or any other person or entity. In any event, if a
Partnership Enforcement Event has occurred and is continuing and such
event is attributable to the failure of an Investment Affiliate to
make any required payment when due on any Affiliate Investment
Instrument, or of the Company to make any required payment when due on
any Investment Guarantee, then a holder of Preferred Partnership
Securities may to the fullest extent permitted by law on behalf of the
Partnership directly institute a proceeding against such Investment
Affiliate or the Company with respect to such Affiliate Investment
Instrument or Investment Guarantee, as the case may be, for
enforcement of payment. In addition, the Partnership acknowledges
that, for so long as the Trust holds any Preferred Partnership
Securities, if the Special Representative fails to enforce its rights
on behalf of the Partnership under any Affiliate Investment Instrument
or Investment Guarantee, as the case may be, after a holder of Trust
Securities has made a written request, a holder of record of Trust
Securities may to the fullest extent permitted by law on behalf of the
Partnership directly institute a legal proceeding against the
Investment Affiliate under the Affiliate Investment Instrument or the
Company under the Investment Guarantee, without first instituting any
legal proceeding against the Property Trustee, the Trust, the Special
Representative or the Partnership. In any event, for so long as the
Trust is the holder of any Preferred Partnership Securities, if a
Trust Enforcement Event has occurred and is continuing and such event
is attributable to the failure of an Investment Affiliate to make any
required payment when due on any Affiliate Investment Instrument or
the failure of the Company to make any required payment when due on
any Investment Guarantee, then the Partnership acknowledges that a
holder of Trust Securities may to the fullest extent permitted by law
on behalf of the Partnership directly institute a proceeding against
such Investment Affiliate with respect to such Affiliate Investment
Instrument or against the Company with respect to any such Investment
Guarantee, in each case for enforcement of payment. Under no
circumstances shall the Special Representative, any holder of
Preferred Partnership Securities or any holder of Preferred Trust
Securities have authority to cause the General Partner to declare
distributions on the Preferred Partnership Securities.
(D) For purposes of determining whether the Partnership has
deferred payment of Distributions for ____ consecutive quarters,
Distributions shall be deemed to remain in arrears, notwithstanding
any payments in respect thereof, until full cumulative Distributions,
including Compounded Distributions, have been or contemporaneously are
paid with respect to all quarterly Distribution periods terminating on
or prior to the date of payment of such full cumulative Distributions.
Not later than 30 days after such right to appoint a Special
Representative arises, the General Partner will convene a meeting for
election of a Special Representative. If the General Partner fails to
convene such meeting within such 30-day period, the Holders of not
less than 10% in Liquidation Preference of the Outstanding Preferred
Partnership Securities will be entitled to convene such meeting. The
provisions of Section 14.3 relating to the convening and conduct of
meetings of the Partners will apply with respect to any such meeting.
In the event that, at any such meeting, Holders of less than a
Majority in Liquidation Preference of Preferred Partnership Securities
entitled to vote for the appointment of a Special Representative vote
for such appointment, no Special Representative shall be appointed.
Any Special Representative appointed shall cease to be a Special
Representative of the Partnership and/or the Limited Partners if (x)
the Partnership (or the Company pursuant to the Partnership Guarantee)
shall have paid in full all accumulated and unpaid Distributions on
the Preferred Partnership Securities, (y) the relevant Investment
Event of Default shall have been cured, and (z) the Company is in
compliance with all its obligations under the Partnership Guarantee,
and the Company, in its capacity as the General Partner, shall
continue the activities of the Partnership without dissolution.
Notwithstanding the appointment of any such Special Representative,
the Company shall continue as General Partner and shall retain all
rights under this Agreement, including the right to determine whether
to declare, in its sole discretion, the payment of Distributions on
the Preferred Partnership Securities.
(ii) CERTAIN AMENDMENTS; WAIVER. (1) If any proposed
amendment of this Agreement provides for, or the General Partner
otherwise proposes to effect, (x) any action that would materially
adversely affect the powers, preferences or special rights of the
Holders of the Preferred Partnership Securities, whether by way of
amendment of this Agreement or otherwise (including, without
limitation, the authorization or issuance of any limited partnership
interests in the Partnership ranking, as to participation in profits
or distributions, or in the assets of the Partnership, senior to the
Preferred Partnership Securities); or (y) the dissolution, winding-up
or termination of the Partnership, other than (1) in connection with
the occurrence of a Partnership Special Event or (2) as described
under Sections 11.11 and 13.2 of this Agreement, then the Holders of
outstanding Preferred Partnership Securities will be entitled to vote
on such amendment or proposal of the General Partner (but not on any
other amendment or proposal) as a class and such amendment or proposal
shall not be effective except with the approval of Holders of a
Majority in Liquidation Preference of such outstanding Preferred
Partnership Securities having a right to vote on the matter; provided,
however, that if the Property Trustee on behalf of the Trust is the
Holder of the Preferred Partnership Securities, any such amendment or
proposal not excepted by (1) or (2) above shall not be effective
without the prior or concurrent approval of the Holders of a majority
in liquidation preference of the outstanding Preferred Trust
Securities having a right to vote on such matters; provided, further,
that no such approval shall be required if the dissolution, winding-up
or termination of the Partnership is proposed or initiated upon the
initiation of proceedings, or after proceedings have been initiated,
for the dissolution, winding-up, liquidation or termination of the
Company.
(2) The Holders of a Majority in Liquidation Preference of Preferred
Partnership Securities may, by vote, on behalf of the Holders of all of the
Preferred Partnership Securities, waive any past Partnership Enforcement Event
with respect to the Preferred Partnership Securities and its consequences;
provided, that if the underlying Investment Event of Default:
(A) is not waivable under the related Affiliate Investment
Instrument or Investment Guarantee, such Partnership Enforcement Event
shall also not be waivable; or
(B) requires the consent or vote of the Holders of greater
than a majority in principal amount of the related Affiliate
Investment Instrument (a "Super Majority") to be waived under the
related Affiliate Investment Instrument or Investment Guarantee, the
Partnership Enforcement Event may only be waived by the vote of the
Holders of the relevant Super Majority in liquidation preference of
the Preferred Partnership Securities.
Upon such waiver, any such Partnership Enforcement Event shall cease
to exist, and shall be deemed to have been cured, for every purpose of
this Agreement, but no such waiver shall extend to any subsequent or
other Partnership Enforcement Event or impair any right consequent
thereon.
(3) A waiver of an Investment Event of Default by the Special
Representative, acting at the direction of the Holders of the Preferred
Partnership Securities, constitutes a waiver of the corresponding Partnership
Enforcement Event.
(iii) GENERAL VOTING. (1) The General Partner shall not (i)
direct the time, method and place of conducting any proceeding for any
remedy available, (ii) waive any Investment Event of Default that is
waivable under the Affiliate Investment Instruments or Investment
Guarantees, [(iii) exercise any right to rescind or annul a Trust
Agreement that the principal of any Affiliate Investment Instruments
shall be due and payable,] (iv) waive the breach of the covenant by
the Company in the Partnership Guarantee to restrict certain payments
by the Company, or Finance Subsidiaries, or (v) consent to any
amendment, modification or termination of any Affiliate Investment
Instrument or Investment Guarantee, where such consent shall be
required from the investor, without, in each case, obtaining the prior
approval of the Holders of at least a Majority in Liquidation
Preference of the Preferred Partnership Securities; provided, however,
that if the Property Trustee on behalf of the Trust is the Holder of
the Preferred Partnership Securities, such waiver, consent or
amendment or other action shall not be effective without the prior or
concurrent approval of at least a majority in liquidation amount of
the outstanding Preferred Trust Securities having a right to vote on
such matters. The General Partner shall not revoke any action
previously authorized or approved by a vote of the Holders of the
Preferred Partnership Securities without the approval of a Majority in
Liquidation Preference of the Preferred Partnership Securities. The
General Partner shall notify all Holders of the Preferred Partnership
Securities of any notice of an Investment Event of Default received
with respect to any Affiliate Investment Instrument or Investment
Guarantee.
(2) Any required approval of Holders of Preferred Partnership
Securities may be given at a separate meeting of such Holders convened for such
purpose or pursuant to written consent. The General Partner will cause a notice
of any meeting at which Holders of Preferred Partnership Securities are entitled
to vote, or of any matter upon which the action by written consent of such
Holders is to be taken, to be mailed to each Holder of record of Preferred
Partnership Securities. Each such notice will include a statement setting forth
(x) the date of such meeting or the date by which such action is to be taken,
(y) a description of any matter proposed for adoption at such meeting on which
such Holders are entitled to vote or of such matters upon which written consent
is sought and (z) instructions for the delivery of proxies or consents. No vote
or consent of the Holders of Preferred Partnership Securities will be required
for the Partnership to redeem and cancel Preferred Partnership Securities in
accordance with this Agreement.
(3) Notwithstanding that Holders of Preferred Partnership Securities
are entitled to vote or consent under any of the circumstances described above,
any of the Preferred Partnership Securities at such time that are beneficially
owned by the Company or by any entity directly or indirectly controlled by, or
under direct or indirect common control with, the Company, shall not be entitled
to vote or consent and shall, for purposes of such vote or consent, be treated
as if they were not outstanding; provided, however, that persons (other than
affiliates of the Company) to whom the Company or any of its subsidiaries have
pledged Preferred Partnership Securities may vote or consent with respect to
such pledged Preferred Partnership Securities pursuant to the terms of such
pledge.
(4) Holders of the Preferred Partnership Securities shall have no
rights to remove or replace the General Partner.
(5) _____ Holders of Preferred Partnership Securities shall have no
preemptive rights.
ARTICLE VII.
PARTNERSHIP INVESTMENTS
Section 7.1 INITIAL AFFILIATE INVESTMENT INSTRUMENTS.
(a) _____ All Partnership funds will be invested in the subordinated
debt securities of Investment Affiliates (the "Affiliate Investment
Instruments") and Eligible Debt Securities. No more than __% of the Initial
Partnership Proceeds will be used by the Partnership to purchase the Initial
Debentures meeting the criteria set forth in this Section 7.1. The remaining
funds from the Initial Partnership Proceeds will be used to purchase Eligible
Debt Securities in accordance with the terms of this Agreement.
(b) _____ The Partnership shall apply approximately __% of the Initial
Partnership Proceeds to purchase subordinated debt instruments of one or more
eligible controlled affiliates of the Company (such debt instruments
collectively referred to as the "Initial Debentures"). The Initial Debentures
may each contain a provision that allows an affiliate of the issuer of such
Debenture to assume the obligations of such issuer subject to certain
conditions. The Partnership may purchase the Initial Debentures only upon
receipt of an opinion of the Independent Financial Advisor to the effect that
(i) if such Initial Debentures were to be rated, at least one Rating Agency
would rate all the Initial Debentures investment grade at the time such Initial
Debentures are purchased by the Partnership, (ii) the Company and each
Investment Affiliate which is a subsidiary of the Company would have been
capable of issuing and selling debt instruments with the same terms and
conditions as the applicable Initial Debentures to unrelated third party
investors, (iii) the terms and conditions of the Initial Debentures are
consistent with the terms and conditions of a public offering or a private
placement pursuant to Rule 144A under the Securities Act of such Initial
Debentures and are no more favorable to the relevant Investment Affiliate than
could have been obtained by such Investment Affiliate from unrelated third party
investors pursuant to such a public offering or private placement of such
Initial Debentures. On the Closing Date, the Partnership shall invest at least
__% of such Initial Partnership Proceeds in Eligible Debt Securities. The terms
of the Initial Debentures will be as set forth in the Indenture attached hereto
as Exhibits A.
Section 7.2 REINVESTMENT OF PAYMENTS RECEIVED BY THE PARTNERSHIP.
(a) The Partnership must at all times invest an amount equal to at
least __% of the Initial Partnership Proceeds in Eligible Debt Securities.
(b) The Partnership may reinvest any payments it receives in respect
of its investments in (i) Eligible Debt Securities without limitation and (ii)
additional Affiliate Investment Instruments but only upon (A) the acceptance of
a written offer setting forth the terms and conditions on which an Investment
Affiliate would be willing to issue an Affiliate Investment Instrument to the
Partnership (an "Investment Offer") and (B) the receipt of an opinion of the
Independent Financial Advisor that the terms of such Affiliate Investment
Instrument set forth in such Investment Offer satisfy the Reinvestment Criteria.
(c) If the Independent Financial Advisor determines that the terms of
an Affiliate Investment Instrument (as set forth in the Investment Offer) do not
satisfy the Reinvestment Criteria, the Partnership shall be prohibited from
making any investment in such Affiliate Investment Instrument.
(d) Each Affiliate Investment Instrument shall satisfy the following
criteria (the "Reinvestment Criteria"): (i) the economic terms of each Affiliate
Investment Instrument shall be no less favorable to the Partnership than terms
that would otherwise be obtainable through a public offering or private
placement under Rule 144A of the Securities Act of securities by the requesting
Investment Affiliate and the other terms and conditions of each Affiliate
Reinvestment Instrument are substantially similar to the terms and conditions of
similar securities and guarantees, if any, included therein, that are offered to
the public in a public offering or private placement under Rule 144A of the
Securities Act of such securities; (ii) the Partnership shall not have held any
Affiliate Investment Instruments of the Investment Affiliate submitting the
Investment Offer within the three-year period ending on the date of the
Investment Offer other than Funding; (iii) there shall not have been a default
on any debt obligation of the Investment Affiliate submitting the Investment
Offer that was owned by the Partnership; (iv) no dividend arrearages shall have
existed on any preferred shares of the Investment Affiliate submitting the
Investment Offer that was owned by the Partnership; and (v) the Investment
Affiliate submitting the Investment Offer shall not be deemed to be an
investment company by reason of Section 3(a) or 3(b) of the 1940 Act or is
otherwise an eligible recipient of funds directly or indirectly from the Trust
pursuant to an order issued by the Securities and Exchange Commission.
(e) Any payments received by the Partnership in respect of its
investments that are not invested in additional Affiliate Investment
Instruments, may be reinvested only in Eligible Debt Securities (subject to
restrictions of applicable law, including the 1940 Act).
ARTICLE VIII.
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 8.1 BOOKS AND RECORDS.
(a) Proper and complete records and books of account of the
Partnership shall be kept by the General Partner, in which shall be entered
fully and accurately all transactions and other matters relative to the
Partnership's investments. The books and records of the Partnership, together
with a certified copy of this Agreement and of the Certificate, shall at all
times be maintained at the principal office of the General Partner and shall be
open to the inspection and examination of the Partners or their duly authorized
representatives for any proper purpose reasonably related to its Interest during
reasonable business hours.
(b) Notwithstanding any other provision of this Agreement to the
contrary, the General Partner may, to the maximum extent permitted by applicable
law, keep confidential from the Partners any information with respect to the
Partnership, the disclosure of which the General Partner reasonably believes is
not in the best interests of the Partnership, or is adverse to the interests of
the Partnership, or which the Partnership or the General Partner is required by
law or by an agreement with any Person to keep confidential.
(c) (i) For so long as the Preferred Partnership Securities are held
by the Property Trustee on behalf of the Trust, within one month after the close
of each Fiscal Year, the General Partner shall transmit to each Partner a
statement indicating such Partner's share of each item of Partnership income,
gain, loss, deduction or credit, for United States federal income tax purposes,
for such Fiscal Year.
(ii) In the event that the Preferred Partnership Securities are no
longer held by the Property Trustee on behalf of the Trust, as soon as
reasonably possible after the close of the Fiscal Year, the General Partner
shall transmit to each Partner the statement referred to in Section 8.1(c)(i)
hereof.
Section 8.2 ACCOUNTING METHOD. For both financial and tax reporting
purposes, the books and records of the Partnership shall be kept on the accrual
method of accounting applied on a consistent basis and shall reflect all
Partnership transactions.
Section 8.3 ANNUAL AUDIT. As soon as practical after the end of each
Fiscal Year, but not later than 90 days after such end, the financial statements
of the Partnership shall be audited by a firm of independent certified public
accountants selected by the General Partner in accordance with applicable law.
The cost of such audits will be an expense of the Partnership and shall be paid
by the General Partner.
ARTICLE IX.
PAYMENT OF EXPENSES
Section 9.1 PAYMENT OF TRUST EXPENSES AND PARTNERSHIP TAXES.
Since the Trust is being formed solely to facilitate a direct investment in the
Preferred Partnership Securities, the Partnership hereby agrees, at any time
while the Property Trustee is the Holder of any Preferred Partnership
Securities, to pay all the expenses of the Trust, including, but not limited to,
any taxes, duties, assessments or governmental charges of whatever nature (other
than withholding taxes) imposed on the Trust by the United States, or any other
domestic taxing authority, so that the net amounts received and retained by the
Trust and the Property Trustee after paying such expenses will be equal to the
amounts the Trust and the Property Trustee would have received had no such costs
or expenses been incurred by or imposed on the Trust. The General Partner shall
be liable for, and shall pay all such expenses solely out of its own funds. In
addition, if the Partnership is required to pay any taxes, duties, assessments
or governmental charges of whatever nature (other than withholding taxes)
imposed by the United States, or any other domestic taxing authority, then, in
any case, the General Partner will pay such taxes, duties, assessments or other
governmental charges out of its own funds.
Section 9.2 PAYMENT OF OTHER PARTNERSHIP EXPENSES. In connection
with the offering, sale and issuance of the Preferred Partnership Securities by
the Partnership, the General Partner shall:
(a) pay all costs and expenses of the Partnership (including,
but not limited to, costs and expenses relating to the organization of the
Partnership, the offering, sale and issuance of the Preferred Partnership
Securities (including commissions to the underwriters in connection therewith),
the fees and expenses of the Special Representatives (if any), and the costs and
expenses relating to the operation of the Partnership, including, without
limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services, expenses for printing and engraving and computing or
accounting equipment, paying agent(s), registrar(s), transfer agent(s),
duplicating, travel and telephone and other telecommunications expenses; and
(b) be primarily and fully liable for any indemnification
obligations arising with respect to this Agreement.
ARTICLE X.
XXXXXX, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS
Section 10.1 LIMITATIONS. The Limited Partners shall not participate
in the management or control of the Partnership's investment activity, property
or other assets, nor shall the Limited Partners engage in any activities for the
Partnership, nor shall the Limited Partners have the power to act for or bind
the Partnership, such powers being vested solely and exclusively in the General
Partner (and, upon appointment, and to the extent set forth herein, the Special
Representative). The Limited Partners shall have such rights as are set forth
herein and in the Partnership Guarantee. The Limited Partners shall have no
interest in the properties or assets of the General Partner, or any equity
therein, or in any proceeds of any sales thereof (which sales shall not be
restricted in any respect), by virtue of acquiring or owning an Interest in the
Partnership.
Section 10.2 LIABILITY. Subject to the provisions of the Act, no
Limited Partner shall be liable for the repayment, satisfaction or discharge of
any debts or other obligations of the Partnership in excess of the Capital
Account balance of such Limited Partner.
Section 10.3 PRIORITY. No Limited Partner shall have priority over any
other Limited Partner as to Partnership allocations or distributions.
ARTICLE XI.
POWERS, RIGHTS AND DUTIES
OF THE GENERAL PARTNER
Section 11.1 AUTHORITY. Subject to the provisions of Section 6.2(h)(i)
with respect to the Special Representative, the General Partner shall have
exclusive and complete authority and discretion to manage the operations and
affairs of the Partnership and to make all decisions regarding the investment
activity of the Partnership. Any action taken by the General Partner shall
constitute the act of and serve to bind the Partnership. In dealing with the
General Partner acting on behalf of the Partnership no Person shall be required
to inquire into the authority of the General Partner to bind the Partnership.
Persons dealing with the Partnership are entitled to rely conclusively on the
power and authority of the General Partner as set forth in this Agreement.
Section 11.2 POWERS AND DUTIES OF GENERAL PARTNER. (a) Subject to the
provisions of Section 6.2(h)(i) with respect to the Special Representative, the
General Partner shall have all rights and powers of a general partner under the
Act, and shall have all authority, rights and powers in the management of the
Partnership's investment activity to do any and all other acts and things
necessary, proper, convenient or advisable to effectuate the purposes of this
Agreement, including by way of illustration but not by way of limitation, the
following:
(i) to secure the necessary goods and services required in
performing the General Partner's duties for the Partnership;
(ii) to exercise all powers of the Partnership, on behalf of
the Partnership, in connection with enforcing the Partnership's rights
under the Affiliate Investment Instruments, Investment Guarantees and
the Partnership Guarantee;
(iii) to issue Preferred Partnership Securities and to admit
Limited Partners in connection therewith in accordance with this
Agreement;
(iv) to act as registrar and transfer agent for the
Preferred Partnership Securities or designate an entity to act as
registrar and transfer agent;
(v) to establish a record date with respect to all actions
to be taken hereunder that require a record date be established,
including with respect to Distributions and voting rights and to make
determinations as to the payment of Distributions, and make or cause
to be made all other required payments to Holders of the Preferred
Partnership Securities and to the General Partner;
(vi) to open, maintain and close bank accounts and to draw
checks and other orders for the payment of money;
(vii) to bring or defend, pay, collect, compromise,
arbitrate, resort to legal action, or otherwise adjust claims or
demands of or against the Partnership;
(viii) to deposit, withdraw, invest, pay, retain and
distribute the Partnership's funds in a manner consistent with the
provisions of this Agreement;
(ix) to take all action that may be necessary or appropriate
for the preservation and the continuation of the Partnership's valid
existence, rights, franchises and privileges as a limited partnership
under the laws of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the limited liability
of the Limited Partners or to enable the Partnership to invest in the
Affiliate Investment Instruments and Eligible Debt Securities;
(x) to take all action not inconsistent with applicable law,
the Certificate or this Agreement, that the General Partner or, upon
appointment pursuant to Section 6.2(h)(i), the Special Representative
determines in its sole discretion to be necessary or desirable to
ensure, as long as such action does not materially adversely affect
the interests of the Preferred Partnership Security Holders, or cause
(i) the Partnership to be deemed to be an "investment company"
required to be registered under the 1940 Act, (ii) any Initial
Debenture (or any subsequent Affiliate Investment Instrument) to not
be treated as indebtedness for United States federal or United Kingdom
corporate income tax purposes, or (iii) the Partnership to be treated
as an association, or as a publicly traded partnership, taxable as a
corporation for United States federal income tax purpose[ or to be
treated as a company for United Kingdom corporate income tax
purposes];
(xi) to cause the Partnership to enter into and perform the
Underwriting Agreement and the Preferred Partnership Securities
Purchase Agreement and to purchase Eligible Debt Securities and
Affiliate Investment Instruments, as the case may be, without any
further act, vote or approval of any Partner; and
(xii) to execute and deliver any and all documents or
instruments, perform all duties and powers and do all things for and
on behalf of the Partnership in all matters necessary or desirable or
incidental to the foregoing.
(b) For so long as any Preferred Partnership Securities remain
outstanding, the General Partner covenants and agrees (i) subject to Section
12.1(b) hereof, to remain the sole general partner of the Partnership and to
maintain directly 100% ownership of the General Partner's interest in the
Partnership, which interest will at all times represent at least 1% of the total
capital of the Partnership, (ii) to cause the Partnership to remain a limited
partnership and not to voluntarily dissolve, liquidate, wind-up or be
terminated, except as permitted by the Limited Partnership Agreement and (iii)
to use its commercially reasonable efforts to ensure that the Partnership will
not be (A) an "investment company" for purposes of the 1940 Act or (B) an
association or a publicly traded partnership taxable as a corporation for United
States federal income tax purposes or[ as a company for United Kingdom corporate
income tax purposes].
Section 11.3 OBLIGATIONS AND EXPENSES PAYABLE BY GENERAL PARTNER. (a)
The General Partner hereby assumes and shall be liable for the debts,
obligations and liabilities of the Partnership, including, but not limited to,
any liabilities arising under the Securities Act or the Exchange Act and all
costs and expenses relating to the investment by the Partnership in any
Affiliate Investment Instruments (but not any losses related to any non-payment
with respect to such investments), and agrees to pay to each Person to whom the
Partnership is now or hereafter becomes indebted or liable (the
"Beneficiaries"), whether such indebtedness, obligations or liabilities arise in
contract, tort or otherwise (excluding payment obligations of the Company to
Holders of the Preferred Partnership Securities in such Holders' capacities as
Holders of such Preferred Partnership Securities, such obligations being
separately guaranteed under the Partnership Guarantee), the full payment of such
indebtedness and any and all liabilities, when and as due. This Agreement is
intended to be for the benefit of and to be enforceable by all such
Beneficiaries whether or not such Beneficiaries have received notice hereof.
(b) The General Partner agrees to pay and be responsible for:
(i) all costs and expenses of the Partnership including, but
not limited to, costs and expenses relating to the organization of the
Partnership, the offering, sale and issuance of Preferred Partnership
Securities, the costs and expenses relating to the operation of the
Partnership (including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services, expenses
for printing and engraving and computing or accounting equipment,
paying agent(s), registrar(s), transfer agents, duplicating, travel
and telephone and other telecommunications expenses) and costs and
expenses incurred in connection with the acquisition, financing, and
disposition of the Partnership's assets; and (ii) any and all taxes
(other than Federal, state and local withholding taxes) and all
liabilities, costs and expenses with respect to such taxes of the
Partnership.
Section 11.4 LIABILITY. Except as expressly set forth in this
Agreement, (a) the General Partner shall not be personally liable for the return
of any portion of the capital contributions (or any return thereon) of the
Limited Partners; (b) the return of such capital contributions (or any return
thereon) shall be made solely from assets of the Partnership; and (c) the
General Partner shall not be required to pay to the Partnership or to any
Limited Partner any deficit in any Limited Partner's Capital Account upon
dissolution, winding up or otherwise. Other than as expressly provided in this
Agreement or under the Act, no Limited Partner shall have the right to demand or
receive property other than cash for its respective Interest in the Partnership.
The General Partner shall be liable to an unlimited extent for the debts and
other obligations of the Partnership.
Section 11.5 OUTSIDE ACTIVITIES. Any Partner or Affiliate thereof may
engage in or possess an interest in other ventures of any nature or description,
independently or with others, similar or dissimilar to the activities of the
Partnership, and the Partnership and the Partners shall have no rights by virtue
of this Agreement in and to such independent ventures or the income or profits
derived therefrom, and the pursuit of any such venture, even if competitive with
the activities of the Partnership, shall not be deemed wrongful or improper. No
Partner or Affiliate thereof shall be obligated to present any particular
investment opportunity to the Partnership even if such opportunity is of a
character that, if presented to the Partnership, could be taken by the
Partnership, and any Partner or Affiliate thereof shall have the right to take
for its own account (individually or as a partner or fiduciary) or to recommend
to others any such particular investment opportunity.
Section 11.6 LIMITS ON GENERAL PARTNER'S POWERS. Anything in this
Agreement to the contrary notwithstanding, the General Partner shall not cause
or permit the Partnership to:
(i) acquire any assets other than as expressly provided
herein;
(ii) do any act which would make it impractical or
impossible to carry on the ordinary activity of the Partnership as set
forth in Section 2.3;
(iii) possess Partnership property for other than a
Partnership purpose;
(iv) admit a Person as a Partner, except as expressly
provided in this Agreement;
(v) make any advances of funds to the General Partner or its
Affiliates, other than such as represented by the Affiliate Investment
Instruments;
(vi) perform any act that would subject any Limited Partner
to liability as a general partner in any jurisdiction;
(vii) engage in any activity that is not consistent with the
purposes of the Partnership, as set forth in Section 2.3;
(viii) without the written consent of the Holders of 66-2/3%
in liquidation preference of the Preferred Partnership Securities,
have an order for relief entered with respect to the Partnership or
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect, or consent to the
entry of an order for relief in an involuntary case under any such
law, or consent to the appointment of or taking possession by a
receiver, trustee or other custodian for all or a substantial part of
the Partnership's property, or make any assignment for the benefit of
creditors of the Partnership; or
(ix) borrow money or become liable for the borrowings of any
third party or to engage in any financial or other trade or business.
Section 11.7 EXCULPATION. (a) No Partnership Indemnified Person shall
be liable, responsible or accountable in damages or otherwise to the Partnership
or any Partnership Covered Person for any loss, damage or claim incurred by
reason of any act or omission performed or omitted by such Partnership
Indemnified Person in good faith on behalf of the Partnership and in a manner
such Partnership Indemnified Person reasonably believed to be within the scope
of the authority conferred on such Partnership Indemnified Person by this
Agreement or by law, except that a Partnership Indemnified Person shall be
liable for any such loss, damage or claim incurred by reason of such Partnership
Indemnified Person's negligence or willful misconduct with respect to such acts
or omissions.
(b) A Partnership Indemnified Person shall be fully protected in
relying in good faith upon the records of the Partnership and upon such
information, opinions, reports or statements presented to the Partnership by any
Person as to matters the Partnership Indemnified Person reasonably believes are
within such other Person's professional or expert competence and who has been
selected with reasonable care by or on behalf of the Partnership, including
information, opinions, reports or statements as to the value and amount of the
assets, liabilities, profits, losses, or any other facts pertinent to the
existence and amount of assets from which distributions to Partners might
properly be paid.
Section 11.8 FIDUCIARY DUTY. (a) To the extent that, at law or in
equity, a Partnership Indemnified Person has duties (including fiduciary duties)
and liabilities relating thereto to the Partnership or to any other Partnership
Covered Person, a Partnership Indemnified Person acting under this Agreement
shall not be liable to the Partnership or to any other Partnership Covered
Person for its good faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they restrict the duties and
liabilities of a Partnership Indemnified Person otherwise existing at law or in
equity, are agreed by the parties hereto to replace such other duties and
liabilities of such Partnership Indemnified Person.
(b) Unless otherwise expressly provided herein, (i) whenever a
conflict of interest exists or arises between Partnership Covered Persons, or
(ii) whether this Agreement or any other agreement contemplated herein or
therein provides that a Partnership Indemnified Person shall act in a manner
that is, or provides terms that are, fair and reasonable to the Partnership or
any Partner, the Partnership Indemnified Person shall resolve such conflict of
interest, take such action or provide such terms, considering in each case the
relative interest of each party (including its own interest) to such conflict,
agreement, transaction or situation and the benefits and burdens relating to
such interests, any customary or accepted industry practices, and any applicable
generally accepted accounting practices or principles. In the absence of bad
faith by the Partnership Indemnified Person, the resolution, action or term so
made, taken or provided by the Partnership Indemnified Person shall not
constitute a breach of this Agreement or any other agreement contemplated herein
or of any duty or obligation of the Partnership Indemnified Person at law or in
equity or otherwise.
(c) Whenever in this Agreement a Partnership Indemnified Person is
permitted or required to make a decision (i) in its "discretion" or under a
grant of similar authority, the Partnership Indemnified Person shall be entitled
to consider such interests and factors as it desires, including its own
interest, and shall have no duty or obligation to give any consideration to any
interest of or factors affecting the Partnership or any other Person, or (ii) in
its "good faith" or under another express standard, the Partnership Indemnified
Person shall act under such express standard and shall not be subject to any
other or different standard imposed by this Agreement or by applicable law.
Section 11.9 INDEMNIFICATION. (a) To the fullest extent permitted by
applicable law, the Partnership shall indemnify and hold harmless each
Partnership Indemnified Person from and against any loss, damage or claim
incurred by such Partnership Indemnified Person by reason of any act or omission
performed or omitted by such Partnership Indemnified Person in good faith on
behalf of the Partnership and in a manner such Partnership Indemnified Person
reasonably believed to be within the scope of authority conferred on such
Partnership Indemnified Person by this Agreement, except that no Partnership
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Partnership Indemnified Person by reason of
negligence or willful misconduct with respect to such acts or omissions;
provided, however, that any indemnity under this Section 11.9 shall be provided
out of and to the extent of Partnership assets only, and no Partnership Covered
Person shall have any personal liability on account thereof.
(b) To the fullest extent permitted by applicable law, expenses
(including legal fees) incurred by a Partnership Indemnified Person in defending
any claim, demand, action, suit or proceeding shall, from time to time, be
advanced by the Partnership prior to the final disposition of such claim,
demand, action, suit or proceeding upon receipt by the Partnership of an
undertaking by or on behalf of the Partnership Indemnified Person to repay such
amount if it shall be determined that the Partnership Indemnified Person is not
entitled to be indemnified as authorized in Section 11.9(a).
Section 11.10 TAX MATTERS
(a) For purposes of section 6231(a)(7) of the Code, the "Tax Matters
Partner" shall be the Company as long as it remains the general partner of the
Partnership. The Tax Matters Partner shall keep the Limited Partners fully
informed of any inquiry, examination or proceeding.
(b) Neither the Partnership, nor the Tax Matters Partner on behalf of
the Partnership, shall make an election under section 754 of the Code.
(c) The General Partner and the Preferred Partnership Security Holders
acknowledge that they intend, for United States federal and United Kingdom
corporate income tax purposes, that the Partnership shall be treated as a
"partnership" (other than a publicly traded partnership taxable as a
corporation) and that the General Partner and the Preferred Partnership Security
Holders shall be treated as "partners" of the Partnership.
[(d) The General Partner shall retain, at the expense of the
Partnership and at its sole discretion, a nationally recognized firm of
certified public accountants which shall prepare all United States federal,
state, local or other tax and information returns of the Partnership, as
required by law, and the Schedule K-1's or any successor or similar forms or
schedules.] [Does TXU do this in-house?]
Section 11.11 CONSOLIDATION, MERGER OR SALE OF ASSETS. The Partnership
may not consolidate, amalgamate, merge with or into, or be replaced by, or
convey, transfer or lease its properties and assets substantially as an entirety
to, any corporation or other body, except as permitted pursuant to this Section
11.11. The Partnership may, without the consent of the Holders of the Preferred
Partnership Securities, consolidate, amalgamate, merge with or into, or be
replaced by a limited partnership, limited liability company or trust organized
as such under the laws of any state of the United States of America, provided
that (i) such successor entity either (x) expressly assumes all of the
obligations of the Partnership under the Preferred Partnership Securities or (y)
substitutes for the Preferred Partnership Securities other securities having
substantially the same terms as the Preferred Partnership Securities (the
"Successor Partnership Securities") so long as the Successor Partnership
Securities are not junior to any other equity securities of the successor
entity, with respect to participation in the profits and distributions, and in
the assets, of the successor entity, (ii) the Investment Affiliates expressly
acknowledge such successor entity as the holder of the Affiliate Investment
Instruments, (iii) the Preferred Partnership Securities continue to be or any
Successor Partnership Securities are or will be listed, upon notification of
issuance, on any national securities exchange or other organization on which the
Preferred Partnership Securities, if so listed, are then listed, (iv) such
merger, consolidation, amalgamation or replacement does not cause the Preferred
Trust Securities (or, in the event that the Trust is liquidated in connection
with a Special Trust Event, the Preferred Partnership Securities (including any
Successor Partnership Securities)) to be downgraded by any nationally recognized
statistical securities rating organization, (v) such merger, consolidation,
amalgamation or replacement does not adversely affect the powers, preferences
and other special rights of the holders of the Preferred Trust Securities or the
Holders of the Preferred Partnership Securities (including any Successor
Partnership Securities)) in any material respect (other than, in the case of the
Preferred Partnership Securities, with respect to any dilution of the Holders'
interest in the new resulting entity), (vi) such successor entity has a purpose
substantially identical to that of the Partnership, (vii) prior to such merger,
consolidation, amalgamation or replacement, the Company has received an opinion
of nationally recognized independent counsel to the Partnership experienced in
such matters to the effect that (A) such successor entity will be treated as a
"partnership" for United States federal [and United Kingdom corporate] income
tax purposes and not as an association or a publicly traded partnership taxable
as a corporation, (B) such merger, consolidation, amalgamation or replacement
will not cause the Trust to be classified as an association or a publicly traded
partnership taxable as a corporation for United States federal income tax
purposes or as __________________ for United Kingdom corporate income tax
purposes, (C) following such merger, consolidation, amalgamation or replacement,
the Company and such successor entity will be in compliance with the 1940 Act
without registering thereunder as an investment company, and (D) such merger,
consolidation, amalgamation or replacement will not adversely affect the limited
liability of the Holders of the Preferred Partnership Securities (viii)
following the merger, consolidation or replacement, the Trust will not be
classified other than a transparent entity for the United Kingdom income tax
purposes and (ix) the Company or a successor permitted by the Partnership
Guarantee guarantees the obligations of such successor entity under the
Successor Partnership Securities at least to the extent provided by the
Partnership Guarantee.
ARTICLE XII.
TRANSFERS OF INTERESTS BY PARTNERS
Section 12.1 TRANSFER OF INTERESTS.
(a) Preferred Partnership Securities shall be freely transferable by a
Holder.
(b) Except as provided in the next sentence, the General Partner may
not assign or transfer its Interest in the Partnership in whole or in part
unless, prior to such assignment or transfer, the General Partner has obtained
the consent of the Holders of not less than 66-2/3% in Liquidation Preference of
the Preferred Partnership Securities. The General Partner may assign or transfer
its Interest in the Partnership without such consent to an entity that is the
survivor of a merger or consolidation of the General Partner in a transaction
that meets the requirements of Section 11.11 and only if prior to such
assignment or transfer the Company has received an opinion of nationally
recognized independent tax counsel to the Partnership experienced in such
matters to the effect that after such assignment or transfer the Partnership
will continue to be treated as a partnership for United States federal [and
United Kingdom corporate] income tax purposes and will not be treated as an
association or a publicly traded partnership taxable as a corporation. The
General Partner may transfer its Interest to a wholly-owned direct or indirect
subsidiary of the Company provided that (i) such entity expressly accepts such
transfer of the obligations as General Partner and (ii) prior to such transfer,
the Company has received an opinion of nationally recognized independent counsel
to the Partnership experienced in such matters to the effect that (A) the
Partnership will be treated as a partnership for United States federal [and
United Kingdom corporate] income tax purposes, (B) such transfer would not cause
the Trust to be classified as an association taxable as a corporation for United
States federal [and United Kingdom corporate] income tax purposes, (C) following
such transfer, the Company and such successor entity will be in compliance with
the 1940 Act without registering thereunder as an investment company, and (D)
such transfer will not adversely affect the limited liability of the holders of
the Preferred Partnership Securities. "Permitted Successor" shall mean an entity
that is an assignee or transferee of the Interest of the General Partner as
permitted by this Section 12.1(b). The admission of a Permitted Successor as a
general partner of the Partnership shall be effective upon the filing of an
amendment to the Certificate with the Secretary of State of the State of
Delaware which indicates that the Permitted Successor has been admitted as a
general partner of the Partnership. If the General Partner assigns its entire
Interest, the General Partner shall cease to be a general partner of the
Partnership simultaneously with the admission of the Permitted Successor as a
general partner of the Partnership. Any such Permitted Successor is hereby
authorized to and shall continue the business of the Partnership without
dissolution.
(c) Except as provided above, no Interest shall be transferred, in
whole or in part, except in accordance with the terms and conditions set forth
in this Agreement. Any transfer or purported transfer of any Interest not made
in accordance with this Agreement shall be null and void.
Section 12.2 TRANSFER OF L.P. CERTIFICATES. The General Partner shall
provide for the registration of L.P. Certificates and of transfers of L.P.
Certificates. Upon surrender for registration of transfer of any L.P.
Certificate, the General Partner shall cause one or more new L.P. Certificates
to be issued in the name of the designated transferee or transferees. Every L.P.
Certificate surrendered for registration of transfer shall be accompanied by a
written instrument of transfer in form satisfactory to the General Partner duly
executed by the Preferred Partnership Security Holder or his or her attorney
duly authorized in writing. Each L.P. Certificate surrendered for registration
of transfer shall be cancelled by the General Partner. A transferee of an L.P.
Certificate shall be admitted to the Partnership as a Limited Partner, shall
become bound by this Agreement and shall be entitled to the rights and subject
to the obligations of a Preferred Partnership Security Holder hereunder upon the
receipt by the transferee of an L.P. Certificate, which receipt shall be deemed
to constitute a request by such transferee that the books and records of the
Partnership reflect such transferee's admission as a limited partner. The
transferor of an L.P. Certificate, in whole, shall cease to be a Limited Partner
at the time that the transferee of such L.P. Certificate is admitted to the
Partnership as a Limited Partner in accordance with this Section 12.2.
Section 12.3 DEFINITIVE L.P. CERTIFICATES; PERSONS DEEMED PREFERRED
PARTNERSHIP SECURITY HOLDERS. Unless and until the Partnership issues a global
L.P. Certificate pursuant to Section 12.4, .the Partnership shall only issue
definitive L.P. Certificates to the Preferred Partnership Security Holders.
(b) The Partnership may treat the Person in whose name any L.P.
Certificate shall be registered on the books and records of the Partnership as
the sole holder of such L.P. Certificate and of the Preferred Partnership
Securities represented by such L.P. Certificate for purposes of receiving
Distributions and for all other purposes whatsoever (including without
limitation, tax returns and information reports) and, accordingly, shall not be
bound to recognize any equitable or other claim to or interest in such L.P.
Certificate or in the Preferred Partnership Securities represented by such L.P.
Certificate on the part of any other Person, whether or not the Partnership
shall have actual or other notice thereof.
Section 12.4 BOOK ENTRY PROVISIONS.
(a) General. The provisions of this Section 12.4 shall apply only in
the event that the Preferred Partnership Securities are distributed to the
Holders of Trust Securities in connection with the involuntary or voluntary
dissolution, winding up or liquidation of the Trust as a result of the
occurrence of a Special Trust Event. Upon the occurrence of such event, a global
L.P. Certificate representing the Book-Entry Interests shall be delivered to
DTC, the initial Clearing Agency, by, or on behalf of, the Partnership and any
previously issued and still outstanding definitive L.P. Certificates shall be of
no further force and effect. The global L.P. Certificate shall initially be
registered on the books and records of the Partnership in the name of Cede &
Co., the nominee of DTC, and no Holder of a Preferred Partnership Security will
receive a new definitive L.P. Certificate representing such Holder's interests
in such L.P. Certificate, except as provided in Section 12.4(c). In connection
with the involuntary or voluntary dissolution, winding up or liquidation of the
Trust as a result of the occurrence of a Special Trust Event, Cede & Co., the
nominee of DTC, shall automatically be admitted to the Partnership as a Limited
Partner. Receipt of the global L.P. Certificate shall be deemed to constitute a
request by Cede & Co., the nominee of DTC, that the books and records of the
Partnership reflect its admission as a Limited Partner. Unless and until new
definitive, fully registered L.P. Certificates (the "Definitive L.P.
Certificates") have been issued to the Preferred Partnership Security Owners
pursuant to Section 12.4(c):
(i) The provisions of this Section shall be in full force
and effect;
(ii) The Partnership, the General Partner and any Special
Representative shall be entitled to deal with the Clearing Agency for
all purposes of this Agreement (including the payment of
Distributions, Redemption Price and liquidation proceeds on the L.P.
Certificates and receiving approvals, votes or consents hereunder) as
the Preferred Partnership Security Holder and the sole holder of the
L.P. Certificates and shall have no obligation to the Preferred
Partnership Security Owners;
(iii) None of the Partnership, the Trust, the General
Partner, any Special Representative or any agents of any of the
foregoing shall have any liability or responsibility for any aspect of
the records relating to or payments made on account of beneficial
ownership interests in a global L.P. Certificate for such beneficial
ownership interests or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests; and
(iv) Except as provided in Section 12.4(c) below, the
Preferred Partnership Security Owners will not be entitled to receive
physical delivery of the Preferred Partnership Securities in
definitive form and will not be considered Holders thereof for any
purpose under this Agreement, and no global L.P. Certificate
representing Preferred Partnership Securities shall be exchangeable,
except for another global L.P. Certificate of like denomination and
tenor to be registered in the name of DTC or Cede & Co., or to a
successor Depositary or its nominee. Accordingly, each Preferred
Partnership Security Owner must rely on the procedures of DTC or if
such person is not a Participant, on the procedures of the Participant
through which such person owns its interest to exercise any rights of
a Holder under the Agreement.
(b) NOTICES TO CLEARING AGENCY. Whenever a notice or other
communication to the Preferred Partnership Security Holders is required under
this Agreement, unless and until Definitive L.P. Certificates shall have been
issued to the Preferred Partnership Security Owners pursuant to Section 12.4(c),
the General Partner and any Special Representative shall give all such notices
and communications specified herein to be given to the Preferred Partnership
Security Holders to the Clearing Agency, and shall have no obligations to the
Preferred Partnership Security Owners.
(c) DEFINITIVE L.P. CERTIFICATES. Definitive L.P. Certificates shall
be prepared by the Partnership and exchangeable for the global L.P. Certificate
or L.P. Certificates if and only if (i) the Depositary notifies the Company that
it is unwilling or unable to continue its services as a securities depositary
and no successor depositary shall have been appointed, (ii) the Depositary, at
any time, ceases to be a clearing agency registered under the Exchange Act at
such time as the Depositary is required to be so registered to act as such
depositary and no successor depositary shall have been appointed, or (iii) the
Company, in its sole discretion, determines that such global L.P. Certificate
shall be so exchangeable. Upon surrender of the global L.P. Certificate or L.P.
Certificates representing the Book-Entry Interests by the Clearing Agency,
accompanied by registration instructions, the General Partner shall cause
Definitive L.P. Certificates to be delivered to Preferred Partnership Security
Owners in accordance with the instructions of the Clearing Agency. Neither the
General Partner nor the Partnership shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Any Person receiving a Definitive L.P.
Certificate in accordance with this Section 12.4 shall be admitted to the
Partnership as a Limited Partner upon receipt of such Definitive L.P.
Certificate and shall be registered on the books and records of the Partnership
as a Preferred Partnership Security Holder. The Clearing Agency or the nominee
of the Clearing Agency, as the case may be, shall cease to be a Limited Partner
under this Section 12.4(c) at the time that at least one additional Person is
admitted to the Partnership as a Limited Partner in accordance herewith. The
Definitive L.P. Certificates shall be printed, lithographed or engraved or may
be produced in any other manner as may be required by any national securities
exchange on which Preferred Partnership Securities may be listed and is
reasonably acceptable to the General Partner, as evidenced by its execution
thereof.
Section 12.5 REGISTRAR, TRANSFER AGENT AND PAYING AGENT.
(a) The General Partner will act as Registrar, Transfer Agent and
Paying Agent for the Preferred Partnership Securities for so long as the
Preferred Partnership Securities are held by the Trust or, if the Trust is
liquidated in connection with a Special Trust Event, for so long as the
Preferred Partnership Securities remain in book-entry only form.
(b) Except in such case where the General Partner shall act as
Registrar or Paying Agent pursuant to Section 12.5(a) hereof, the Partnership
shall maintain in the Borough of Manhattan, City of New York, State of New York
(i) an office or agency where Preferred Partnership Securities may be presented
for registration of transfer or for exchange ("Registrar") and (ii) an office or
agency where Preferred Partnership Securities may be presented for payment
("Paying Agent"). The Registrar shall keep a register of the Preferred
Partnership Securities and of their transfer and exchange. The Partnership may
appoint the Registrar and the Paying Agent and may appoint one or more
co-registrars and one or more additional paying agents in such other locations
as it shall determine. The term "Paying Agent" includes any additional paying
agent. The Partnership may change any Paying Agent, Registrar or co-registrar
without prior notice to any Holder. If the Partnership fails to appoint or
maintain another entity as Registrar or Paying Agent, the General Partner shall
act as such.
(c) Registration of transfers of Preferred Partnership Securities
shall be effected without charge by or on behalf of the Partnership, but upon
payment (with the giving of such indemnity as the Partnership or the General
Partner may require) in respect of any tax or other governmental charges that
may be imposed.
(d) The Partnership will not be required to register or cause to be
registered the transfer of Preferred Partnership Securities after such Preferred
Partnership Securities have been called for redemption.
ARTICLE XIII.
WITHDRAWAL, DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS
Section 13.1 WITHDRAWAL OF PARTNERS. The General Partner shall not at
any time retire or withdraw from the Partnership except as otherwise permitted
hereunder. If the General Partner retires or withdraws in contravention of this
Section 13.1, it shall indemnify, defend and hold harmless the Partnership and
the other Partners from and against any losses, expenses, judgments, fines,
settlements or damages suffered or incurred by the Partnership or such other
Partners arising out of or resulting from such retirement or withdrawal.
Section 13.2 DISSOLUTION OF THE PARTNERSHIP.
(a) The Partnership shall not be dissolved by the admission of
Partners in accordance with the terms of this Agreement. The death, withdrawal,
bankruptcy or dissolution of a Limited Partner, or the occurrence of any other
event which terminates the Interest of a Limited Partner in the Partnership,
shall not, in and of itself, cause the Partnership to be dissolved and its
affairs wound up. To the fullest extent permitted by applicable law, upon the
occurrence of any such event, the General Partner may, without any further act,
vote on approval of any Partner, admit any Person to the Partnership as an
additional or substitute limited partner in the Partnership, which admission
shall be effective as of the date of the occurrence of such event, and the
business of the Partnership shall be continued without dissolution.
(b) The Partnership shall be dissolved and its affairs shall be wound
up upon the earliest to occur of any of the following events:
(i) upon the bankruptcy or insolvency of the General
Partner;
(ii) upon the assignment by the General Partner of its
entire interest in the Partnership when the assignee is not admitted
to the Partnership as a general partner of the Partnership in
accordance with this Agreement, or the filing of a certificate of
dissolution or its equivalent with respect to the General Partner, or
the revocation of the General Partner's charter and the expiration of
90 days after the date of notice to the General Partner of revocation
without a reinstatement of its charter, or if any other event occurs
that causes the General Partner to cease to be a general partner of
the Partnership under the Delaware Partnership Act, unless the
business of the Partnership is continued in accordance with the
Delaware Partnership Act;
(iii) the Partnership has redeemed or otherwise purchased
all of the Preferred Partnership Securities;
(iv) upon the entry of a decree of judicial dissolution
under Section 17-802 of the Delaware Partnership Act; or
(v) the written consent of all Partners.
(c) Upon dissolution of the Partnership, the Liquidator shall promptly
notify the Partners of such dissolution.
Section 13.3 LIQUIDATION.
(a) In the event of the dissolution of the Partnership for any reason,
the General Partner (or, if the Partnership is dissolved pursuant to Section
13.2(b)(i) or (ii), then a liquidating agent appointed by Holders of not less
than 66 2/3% in Liquidation Preference of the Preferred Partnership Securities
(the General Partner or such Person so appointed is hereinafter referred to as
the "Liquidator")) shall commence to wind up the affairs of the Partnership and
to liquidate the Partnership's assets; provided, however, that a reasonable time
shall be allowed for the orderly liquidation of the assets of the Partnership
and the satisfaction of liabilities to creditors so as to enable the Partners to
minimize the normal losses attendant upon liquidation. The Partners shall
continue to share all income, losses and distributions during the period of
liquidation in accordance with Articles IV and V. Subject to the provisions of
this Article XIII, the Liquidator shall have full right and unlimited discretion
to determine the time, manner and terms of any sale or sales of Partnership
property pursuant to such liquidation, giving due regard to the activity and
condition of the relevant market and general financial and economic conditions.
(b) The Liquidator shall have all of the rights and powers with
respect to the assets and liabilities of the Partnership in connection with the
liquidation and termination of the Partnership that the General Partner would
have with respect to the assets and liabilities of the Partnership during the
term of the Partnership, and the Liquidator is hereby expressly authorized and
empowered to execute any and all documents necessary or desirable to effectuate
the liquidation and termination of the Partnership and the transfer of any
assets.
(c) Notwithstanding the foregoing, a Liquidator that is not a General
Partner shall not, by virtue of acting in such capacity, be deemed a Partner in
this Partnership and shall not have any of the economic interests in the
Partnership of a Partner; and such Liquidator may be compensated for its
services to the Partnership at normal customary and competitive rates for its
services to the Partnership as reasonably determined by all the Limited
Partners.
Section 13.4 DISTRIBUTION IN LIQUIDATION. The proceeds of liquidation
shall be applied in the following order of priority (and without regard to the
non-mandatory provisions of Section 17-804 of the Delaware Partnership Act):
(i) first, to creditors of the Partnership, including
Partners who are creditors, to the extent otherwise permitted by law,
in satisfaction of the liabilities of the Partnership (whether by
payment or the making of reasonable provisions for payment thereof),
other than liabilities for distributions (including Distributions) to
Partners;
(ii) second, following any allocations required under
Section 4.2(e) of the Agreement, to the Limited Partners, an amount
equal to and pro rata in proportion with the positive Capital Account
balances of the Limited Partners; and
(iii) thereafter, to the General Partner.
Section 13.5 RIGHTS OF LIMITED PARTNERS. Each Limited Partner shall
look solely to the assets of the Partnership for all distributions with respect
to the Partnership and such Partner's capital contribution (including returns
thereof), and such Partner's share of profits or losses thereof, and shall have
no recourse therefor (upon dissolution or otherwise) against the General
Partner, except under the Partnership Guarantee. No Partner shall have any right
to demand or receive property other than cash upon dissolution and termination
of the Partnership.
Section 13.6 TERMINATION. The Partnership shall terminate when all of
the assets of the Partnership shall have been disposed of and the assets shall
have been distributed as provided in Section 13.4 and the Liquidator has
executed and caused to be filed a certificate of cancellation of the
Partnership.
ARTICLE XIV.
AMENDMENTS AND MEETINGS
Section 14.1 AMENDMENTS. Except as provided by Section 3.3(b) and
Section 6.2(i), this Agreement may be amended by, and only by, a written
instrument executed by the General Partner without the consent of any Limited
Partner; provided, however, that no amendment shall be made, and any such
purported amendment shall be void and ineffective, to the extent the result
thereof would be to (A) cause the Partnership to be treated for United States
federal income tax purposes as an association or a publicly traded partnership
taxable as a corporation or for United Kingdom corporate income tax purposes as
______________, (B) require the Partnership to register under the 1940 Act or
(C) materially adversely affect the rights, privileges or preferences of the
Preferred Partnership Securities. Notwithstanding any provision to the contrary,
in the event of (i) a liquidation of the Trust for any reason or (ii) any other
distribution which effectively causes Preferred Partnership Securities to be
distributed to Holders of Preferred Trust Securities, the General Partner may
amend this Agreement without the consent of the Limited Partners to provide for
(A) orderly dissemination, purchase, sale, exchange and replacement of such
Preferred Partnership Securities, (B) all other matters to the extent required
by or desirable under then applicable law and (C) such other matters reasonably
incidental or related thereto; provided, however, that no such amendment may
materially adversely affect the rights, privileges, or preferences of the
Preferred Partnership Securities without the consent of a majority in interest
of the Partners so effected.
Section 14.2 AMENDMENT OF CERTIFICATE. In the event this Agreement
shall be amended pursuant to Section 14.1, the General Partner shall amend the
Certificate to reflect such change if it deems such amendment of the Certificate
to be necessary or appropriate.
Section 14.3 MEETINGS OF PARTNERS.
(a) Meetings of the Limited Partners who are Holders may be called at
any time by the General Partner to consider and act on any matter on which
Limited Partners are entitled to act under the terms of this Agreement or the
Act. The General Partner shall call a meeting of Holders if directed to do so by
Holders of no less than 10% in Liquidation Preference as permitted by this
Agreement. Such direction shall be given by delivering to the General Partner a
request in writing stating that the signing Limited Partners desire to call a
meeting and indicating the general or specific purpose for which the meeting is
to be called. Any Limited Partners calling a meeting shall specify in writing
the L.P. Certificates held by the Limited Partners exercising the right to call
a meeting and only those specified Interests shall be counted for purposes of
determining whether the required percentage set forth in the second sentence of
this paragraph has been met. Except to the extent otherwise provided in this
Agreement, the following provisions shall apply to meetings of Partners.
(b) Notice of any such meeting shall be given to all Limited Partners
having a right to vote thereat not less than seven Business Days nor more than
60 days prior to the date of such meeting. Each such notice shall set forth the
date, time and place of the meeting, a description of any matter on which
Holders are entitled to vote and instructions for the delivery of proxies or
written consents.
(c) Any action that may be taken at a meeting of the Limited Partners
may be taken without a meeting if a consent in writing setting forth the action
so taken is signed by Limited Partners owning not less than the minimum
Interests that would be necessary to authorize or take such action at a meeting
in which all Limited Partners having a right to vote thereon were present and
voting. Prompt notice of the taking of action without a meeting shall be given
to the Limited Partners entitled to vote who have not consented in writing. The
General Partner may provide that any written ballot submitted to the Limited
Partners for the purpose of taking any action without a meeting shall be
returned to the Partnership within a specified time.
(d) Each Partner may authorize any Person to act for it by proxy on
all matters as to which a Partner is entitled to participate, including waiving
notice of any meeting, or voting or participating at a meeting. Every proxy must
be signed by the Partner or its attorney-in-fact. No proxy shall be valid after
the expiration of 11 months from the date thereof unless otherwise provided in
the proxy. Every proxy shall be revocable at the pleasure of the Partner
executing it. Except as otherwise provided herein, or pursuant to Section
14.3(f), all matters relating to the giving, voting or validity of proxies shall
be governed by the General Corporation Law of the State of Delaware relating to
proxies, and judicial interpretations thereunder, as if the Partnership were a
Delaware corporation and the Limited Partners were stockholders of a Delaware
corporation.
(e) Each meeting of Partners shall be conducted by the General Partner
or by such other Person that the General Partner may designate.
(f) The General Partner may establish all other reasonable procedures
relating to meetings of Limited Partners or the giving of written consents, in
addition to those expressly provided, including notice of time, place or purpose
of any meeting at which any matter is to be voted on by any Partners, waiver of
any such notice, action by consent without a meeting, the establishment of a
record date, quorum requirements, voting in person or by proxy or any other
matter with respect to the exercise of any such right to vote.
ARTICLE XV.
MISCELLANEOUS
Section 15.1 NOTICES. All notices provided for in this Agreement shall
be in writing, and shall be delivered or mailed by first class or registered or
certified mail or, with respect to the Partnership and General Partner,
telecopied, as follows:
(a) if given to the Partnership, in care of the General Partner at the
Partnership's mailing address set forth below:
TXU Corp.
Energy Plaza
0000 Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Treasurer
(b) if given to the General Partner, at its mailing address set forth
below:
TXU Europe Limited
The Adelphi
0-00 Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attention: Treasurer
(c) if given to any other Partner at the address set forth on the
books and records of the Partnership.
Section 15.2 POWER OF ATTORNEY. Each Holder of a Preferred Partnership
Security does hereby constitute and appoint the General Partner, and if
applicable, any Special Representative appointed pursuant to Section 6.2(h)(i)
of this Agreement, as its true and lawful representative and attorney-in-fact,
in its name, place and stead to make, execute, sign, deliver and file (a) any
amendment of the Certificate required because of an amendment of this Agreement
or in order to effect any change in the Partnership, (b) this Agreement, (c) any
amendments to this Agreement and (d) all such other instruments, documents and
certificates which from time to time may be required by the laws of the United
States of America, the State of Delaware or any other jurisdiction, or any
political subdivision or agency thereof, to effectuate, implement and continue
the valid and subsisting existence of the Partnership or to dissolve the
Partnership for any other purpose consistent with this Agreement and the
transactions contemplated hereby.
The power of attorney granted hereby is coupled with an interest
and shall (a) survive and not be affected by the subsequent death, incapacity,
disability, dissolution, termination, or bankruptcy of the Holder granting the
same or the transfer of all or any portion of such Holder's Interest and (b)
extend to such Holder's successors, assigns and legal representatives.
Section 15.3 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties. It supersedes any prior agreement or understandings
among them, and it may not be modified or amended in any manner other than as
set forth herein.
Section 15.4 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE
LAW OF THE STATE OF DELAWARE AND ALL RIGHTS AND REMEDIES SHALL BE GOVERNED BY
SUCH LAWS WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
Section 15.5 EFFECT. Except as herein otherwise specifically provided,
this Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, successors and assigns.
Section 15.6 PRONOUNS AND NUMBER. Wherever from the context it appears
appropriate, each term stated in either the singular or the plural shall include
the singular and the plural, and pronouns stated in either the masculine,
feminine or neuter shall include the masculine, feminine and neuter.
Section 15.7 CAPTIONS. Captions, headings, and subheadings contained
in this Agreement are included for convenience and identification purposes only
and in no way define, limit or extend the scope or intent of this Agreement or
any provision herein.
Section 15.8 PARTIAL ENFORCEABILITY. If any provision of this
Agreement, or the application of such provision to any Person or circumstance,
shall be held invalid, the remainder of this Agreement, or the application of
such provision to persons or circumstances other than those to which it is held
invalid, shall not be affected thereby.
Section 15.9 COUNTERPARTS. This Agreement may contain more than one
counterpart of the signature page and this Agreement may be executed by the
affixing of the signature of each of the Partners to one of such counterpart
signature pages. All of such counterpart signature pages shall be read as though
one, and they shall have the same force and effect as though all of the signers
had signed a single signature page.
Section 15.10 WAIVER OF PARTITION. Each Partner hereby irrevocably
waives any and all rights (if any) that such Partner may have to maintain any
action for partition of any of the Partnership's property.
Section 15.11 REMEDIES. The failure of any party to seek redress for
violation of, or to insist upon the strict performance of, any provision of this
Agreement shall not prevent a subsequent act, which would have originally
constituted a violation, from having the effect of an original violation. The
rights and remedies provided by this Agreement are cumulative and the use of any
one right or remedy by any party shall not preclude or waive its right to use
any or all other remedies. Said rights and remedies are given in addition to any
other rights the parties may have by law, statute, ordinance or otherwise.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above stated.
GENERAL PARTNER:
TXU EUROPE LIMITED.
By:_____________________________________________
Name:
Title:
LIMITED PARTNER:
TXU EUROPE CAPITAL I
By:_____________________________________________
Name:
Title: Administrative Trustee
SCHEDULE 1
ANNEX A
FORM OF L.P. CERTIFICATE
[IF THE PREFERRED PARTNERSHIP SECURITY IS TO BE A GLOBAL
CERTIFICATE INSERT: This Preferred Partnership Security is a Global Certificate
within the meaning of the Partnership Agreement hereinafter referred to and is
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee of the Depositary. This Preferred Partnership Security is exchangeable
for Preferred Partnership Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described
in the Partnership Agreement and no transfer of this Preferred Partnership
Security (other than a transfer of this Preferred Partnership Security as a
whole by the Depositary to a nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Preferred Partnership Security is presented by an
authorized representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx), a New York corporation, to the Partnership or its agent for
registration of transfer, exchange or payment, and any Preferred Partnership
Security issued is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of the Depositary and any payment
hereon is made to Cede & Co. or such other entity as is requested by an
authorized representative of the Depositary, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.]
PS-1
[ ]
CERTIFICATE EVIDENCING PREFERRED PARTNERSHIP SECURITIES
OF
TXU EUROPE FUNDING I, L.P.
__% PREFERRED PARTNERSHIP SECURITIES
(liquidation preference $25 per Preferred Partnership Security)
TXU EUROPE FUNDING I, L.P., a limited partnership formed under
the laws of the State of Delaware (the "Partnership"), hereby certifies that The
Bank of New York, a property trustee pursuant to the Amended and Restated Trust
Agreement of TXU Europe Capital I, dated as of ________ __, ____ (the "Holder")
is the registered owner of preferred securities of the Partnership representing
limited partner interests in the Partnership designated the __% Preferred
Partnership Securities (liquidation preference $25 per Preferred Partnership
Security) (the "Preferred Partnership Securities"). The Preferred Partnership
Securities are freely transferable on the books and records of the Partnership,
in person or by a duly authorized attorney, upon surrender of this certificate
duly endorsed and in proper form for transfer. The designation, rights, powers,
privileges, restrictions, preferences and other terms and provisions of the
Preferred Partnership Securities represented hereby are set forth in, issued
under and shall in all respects be subject to the provisions of the Amended and
Restated Agreement of Limited Partnership dated as of ________ __, ____, as the
same may be amended from time to time (the "Partnership Agreement"). Capitalized
terms used herein but not defined shall have the meaning given them in the
Partnership Agreement. The Holder is entitled to the benefits of the Partnership
Guarantee to the extent provided therein. The Partnership will provide a copy of
the Partnership Agreement and the Partnership Guarantee to a Holder without
charge upon written request to the Partnership at its principal place of
business.
Upon receipt of this certificate, the Holder is admitted to the
Partnership as a Limited Partner, is bound by the Partnership Agreement and is
entitled to the benefits thereunder. Each Holder of a Preferred Partnership
Security, by acceptance of this Certificate and each Certificate owner, by
acquisition of a beneficial interest in a Certificate, agrees to treat the
Initial Debentures, and any other Affiliate Investment Instruments, as
indebtedness for United States federal [and United Kingdom corporate] income tax
purposes.
IN WITNESS WHEREOF, the Partnership has executed this certificate
this __ day of ________, ____.
TXU EUROPE FUNDING I, L.P.
By: TXU EUROPE LIMITED
as General Partner
By: ________________________________
Name:
Title:
(See reverse for additional terms)
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Preferred Partnership Security will
be fixed at a rate per annum of % of the stated liquidation preference of $25
per Preferred Partnership Security. Distributions not paid on the scheduled
payment date will accumulate and compound quarterly (to the extent permitted by
applicable law) at the rate of % per annum. The term "Distributions" as used
herein shall mean ordinary cumulative distributions in respect of each Fiscal
Period together with any such Compounded Distributions. Distributions on the
Preferred Partnership Securities will only be made to the extent that the
Partnership has funds legally available for the payment of such distributions.
Amounts available to the Partnership for Distribution to the holders of the
Preferred Partnership Securities will be limited to payments received by the
Partnership from certain subsidiaries of the Company on the Initial Debentures
and Affiliate Investment Instruments or from the Company on the Partnership
Guarantee or the Investment Guarantees or on the Eligible Debt Securities.
Distributions on the Preferred Partnership Securities will be paid only if, as
and when declared in the sole discretion of the Company, as the General Partner
of the Partnership. The amount of Distributions payable for any period will be
computed for any full quarterly Distribution period on the basis of a 360-day
year of twelve 30-day months, and for any period shorter than a full quarterly
Distribution period on the basis of the actual number of days elapsed in a
90-day quarter.
Except as otherwise described herein, Distributions on the
Preferred Partnership Securities will be cumulative, will accumulate from the
date of initial issuance and will be payable quarterly in arrears, on
____________, _______________, ____________ and ___________________________ of
each year, commencing on ________ __, ____, if, as and when declared by the
General Partner in its sole discretion. If the Preferred Trust Securities (or,
if the Trust is liquidated, the Preferred Partnership Securities) are in
book-entry-only form, Distributions will be payable to the Holders of record of
Preferred Partnership Securities as they appear on the books and records of the
Partnership on the relevant record dates, which will be one Business Day prior
to the relevant payment dates. If the Trust or the Property Trustee is the
Holder of the Preferred Partnership Securities, all Distributions of cash shall
be made by wire transfer of same day funds to such Holder by 10:00 a.m., New
York City time, on the applicable Distribution Payment Date. Distributions
payable on any Preferred Partnership Securities that are not punctually paid on
any Distribution Payment Date will cease to be payable to the Person in whose
name such Preferred Partnership Securities are registered on the relevant record
date, and such Distribution will instead be payable to the Person in whose name
such Preferred Partnership Securities are registered on the special record date
or other specified date for payment of such defaulted or accumulated
Distribution. If the Preferred Trust Securities (or, if the Trust is liquidated,
the Preferred Partnership Securities) are not in book-entry-only form, the
relevant record dates shall be the 15th day of the month of the relevant payment
dates. In the event that any date on which Distributions are payable is not a
Business Day, payment of such Distribution shall be made on the next succeeding
day which is a Business Day (without any interest or other payment in respect of
any such delay) except that, if such Business Day falls in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
The Preferred Partnership Securities shall be redeemable as
provided in the Partnership Agreement.
---------------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Preferred Partnership Security Certificate to:
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(Insert assignee's social security or tax identification number)
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(Insert address and zip code of assignee)
and irrevocably appoints
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agent to
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transfer this Preferred Partnership Security Certificate on the books of
the Partnership. The agent may substitute another to act for him or her.
Date:
-------------------------
Signature:
--------------------
(Sign exactly as your name appears on the other side of this Preferred
Partnership Security Certificate)
