Exhibit 99.4
LIMITED PARTNERSHIP AGREEMENT
OF
[ ] L.P.
A DELAWARE LIMITED PARTNERSHIP
TABLE OF CONTENTS
ARTICLE I -- DEFINITIONS AND USAGE.............................................. 1
1.1 Definitions............................................................ 1
1.2 Construction........................................................... 4
ARTICLE II -- ORGANIZATION...................................................... 5
2.1 Formation.............................................................. 5
2.2 Name................................................................... 5
2.3 Registered Office; Registered Agent; Principal Office.................. 5
2.4 Purposes............................................................... 5
2.5 Foreign Qualification.................................................. 5
2.6 Term................................................................... 6
ARTICLE III -- PARTNERS AND CAPITAL CONTRIBUTIONS............................... 6
3.1 Partners............................................................... 6
3.2 Capital Contributions.................................................. 6
ARTICLE IV -- ALLOCATIONS AND DISTRIBUTIONS..................................... 6
4.1 Allocations............................................................ 6
4.2 Distributions.......................................................... 7
4.3 Capital Accounts....................................................... 7
ARTICLE V -- MANAGEMENT......................................................... 7
5.1 General................................................................ 7
5.2 Powers of the General Partner.......................................... 7
5.3 Limitations on the Partnership's Activities............................ 8
5.4 Conflicts of Interest.................................................. 11
5.5 Rights and Obligations of the Limited Partner.......................... 13
5.6 Exculpation and Indemnification........................................ 14
ARTICLE VI -- BOOKS, RECORDS, ACCOUNTS AND TAX MATTERS.......................... 15
6.1 Maintenance of Books................................................... 15
6.2 Fiscal Year............................................................ 15
6.3 Bank and Investment Accounts........................................... 15
6.4 Tax Reporting and Elections............................................ 15
ARTICLE VII -- TRANSFER OF PARTNERSHIP INTERESTS................................ 15
7.1 General................................................................ 15
7.2 Transfers to Affiliates................................................ 16
7.3 Admission of Transferee as Partner..................................... 16
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Limited Partnership Agreement
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ARTICLE VIII -- DISSOLUTION, LIQUIDATION AND TERMINATION........................ 16
8.1 Dissolution Events..................................................... 16
8.2 Bankruptcy of Partners................................................. 17
8.3 Continuation of Partnership............................................ 17
8.4 Waiver................................................................. 17
8.5 Liquidation............................................................ 18
8.6 Liquidating Distributions to Partners.................................. 18
8.7 Certificate of Cancellation............................................ 19
ARTICLE IX -- GENERAL PROVISIONS................................................ 19
9.1 Notices................................................................ 19
9.2 Amendments............................................................. 20
9.3 Binding Effect......................................................... 20
9.4 Governing Law.......................................................... 20
9.5 Severability........................................................... 20
9.6 Entire Agreement....................................................... 20
9.7 Benefits of Agreement; No Third Party Rights........................... 20
9.8 Limited Liability...................................................... 20
9.9 Waiver of Right of Partition and Dissolution........................... 20
Exhibit A -- Transaction Documents
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LIMITED PARTNERSHIP AGREEMENT
([ ] L.P.)
[ ] L.P.
LIMITED PARTNERSHIP AGREEMENT
This Limited Partnership Agreement of [ ] L.P. is made and entered into,
effective [ ], by and between [ ], a Delaware limited liability company ("[ ]"),
as the General Partner, and [ ], a Delaware limited partnership ("[ ]"), as the
Limited Partner.
ARTICLE I
DEFINITIONS AND USAGE
1.1 DEFINITIONS. As used in this Agreement, the following terms have the
respective meanings specified below:
(a) "Act" means the Delaware Revised Uniform Limited Partnership Act
and any successor statute, as amended from time to time.
(b) "Affiliate" means, when used with reference to a specified
Person, any Person that directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with the
specified Person. As used in this definition, the term "control" means, with
respect to a Person, the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through ownership of voting securities, by contract or otherwise.
(c) "Agreement" means this Limited Partnership Agreement, as
amended, modified, supplemented or restated from time to time in accordance with
the provisions hereof.
(d) "Bankruptcy" means, with respect to any Person, the occurrence
of any of the following events:
(1) Such Person makes an assignment for the benefit of
creditors;
(2) Such Person files a voluntary petition in bankruptcy;
(3) Such Person is adjudged a bankrupt or insolvent or an
order for relief in any bankruptcy or insolvency proceedings is entered
against such Person;
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(4) Such Person files a petition or answer seeking for itself
any reorganization, arrangement, composition, readjustment, liquidation or
similar relief under any statute, law or regulation;
(5) Such Person files an answer or other pleading admitting or
failing to contest the material allegations of a petition filed against it
in any proceeding of this nature;
(6) Such Person seeks, consents to or acquiesces in the
appointment of a trustee, receiver or liquidator of the Person or of all
or any substantial part of its properties;
(7) A proceeding against such Person seeking reorganization,
arrangement, composition, readjustment, liquidation or similar relief
under any statute, law or regulation is commenced and is not dismissed
within 120 days after such commencement; or
(8) A trustee, receiver or liquidator of such Person or of all
or any substantial part of its property is appointed without such Person's
consent or acquiescence and such appointment is not vacated or stayed
within 90 days after such appointment or such appointment is not vacated
within 90 days after the expiration of any such stay.
The foregoing definition of "Bankruptcy" is intended to replace and shall
supersede and replace the definition of "Bankruptcy" set forth in Sections
18-101(1) and 18-304 of the Act.
(e) "Benefit Plan Investor" means (a) any "employee benefit plan" as
defined in Section 3(3) of ERISA, (b) any "plan" as defined in Section 4975 of
the Code, or (c) any entity that is deemed to hold the "plan assets" of any
employee benefit plan or other plan by reason of 29 C.F.R. 2510.3-101 or
otherwise.
(f) "Capital Contribution" means any contribution by a Partner to
the capital of the Partnership.
(g) "Certificate" means the Certificate of Limited Partnership filed
by the General Partner with the Secretary of State of the State of Delaware in
connection with the formation of the Partnership.
(h) "Code" means the Internal Revenue Code of 1986 and any successor
statute, as amended from time to time.
(i) "[ ]" has the meaning given in the introductory paragraph.
(j) "[ ]" has the meaning given in the introductory paragraph.
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(k) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(l) "General Partner" means [ ] or any Transferee of all or part of
the General Partner's Interest that is admitted to the Partnership as a Partner
with respect to the Transferred Interest pursuant to Section 7.3.
(m) "Independent Director" has the meaning given such term in the
Limited Liability Company Agreement of the General Partner.
(n) "Interest" means all of a Partner's rights and interests in the
Partnership in its capacity as a Partner, as provided in this Agreement or the
Act.
(o) "Limited Partner" means [ ] or any Transferee of all or part of
the Limited Partner's Interest that is admitted to the Partnership as a Partner
with respect to the Transferred Interest pursuant to Section 7.3.
(p) "Liquidator" has the meaning specified in Section 8.5.
(q) "Material Action" means any of the following actions:
(1) The institution of proceedings to have the Partnership be
adjudicated Bankrupt or insolvent;
(2) The consent to the institution of Bankruptcy or insolvency
proceedings against the Partnership;
(3) The filing of a petition seeking, or the consent to,
reorganization or relief with respect to the Partnership under any
applicable federal or state law relating to Bankruptcy;
(4) The consent to the appointment of a receiver, liquidator,
assignee, trustee or sequestrator (or other similar official) of the
Partnership or a substantial part of its property;
(5) The making of an assignment for the benefit of creditors
of the Partnership;
(6) The written admission of the Partnership's inability to
pay its debts generally as they become due;
(7) To the fullest extent permitted by law, the taking of any
action in furtherance of any such action described in clauses (1) through
(6) above; or
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(8) To the fullest extent permitted by law, the dissolution or
liquidation of the Partnership or the taking of any action in furtherance
of the dissolution or liquidation of the Partnership.
(r) "Partner" means the General Partner or the Limited Partner or
any other Person hereafter admitted to the Partnership as a Partner pursuant to
Section 7.3, but does not include any Person who has ceased to be a Partner.
(s) "Partnership" means the Delaware limited partnership formed
pursuant to this Agreement.
(t) "Partnership Percentage" means (a) with respect to the General
Partner, 0.01%, and (b) with respect to the Limited Partner, 99.99%.
(u) "Permitted Indemnitee" means (1) any Partner, (2) any Person who
was or is an officer, manager, agent or employee of the Partnership, (3) any
Person who was or is a director, officer, manager, agent or employee of a
Partner (to the extent such Person was properly engaged in activities for and on
behalf of the Partnership) and (4) any Person who was or is serving as a
director, officer, manager, agent, employee, trustee or similar functionary of
another Person at the request of the Partnership or the General Partner (acting
for and on behalf of the Partnership).
(v) "Person" means an individual or a partnership, joint venture,
limited liability company, limited liability partnership, corporation,
cooperative, trust, estate, unincorporated organization, association or other
entity.
(w) "Proceeding" means any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative, arbitrative or
investigative.
(x) "Separateness Provisions" means Sections 2.4, the first sentence
of Section 5.2, 5.3, 9.2 and Article VII of this Agreement.
(y) "Third Party Benefit Provisions" has the meaning specified in
Section 9.7.
(z) "Transaction Documents" means all the contracts and agreements
described in Exhibit A, as they may be amended, modified or restated from time
to time.
(aa) "Transfer" means, when used with respect to an Interest, a
sale, transfer, assignment, gift, donation, exchange, pledge, hypothecation,
mortgage or any other disposition of such Interest (whether voluntary or
involuntary by operation of law, court order, judicial process, foreclosure,
levy, attachment or otherwise); and the terms "Transfer" (when used as a verb),
"Transferred," "Transferee" and "Transferor" shall have correlative meanings.
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1.2 CONSTRUCTION.
(a) Whenever the context permits, the gender of all words used in
this Agreement includes the masculine, feminine and neuter, and words of the
singular number shall be deemed to include the plural number ( and vice versa).
As used in this Agreement, the term "including" shall mean "including, without
limitation."
(b) Unless the context makes clear to the contrary, all references
in this Agreement to an Article or a Section refer to articles and sections of
this Agreement. When used in this Agreement, the words "hereof," "herein" and
"hereunder" and words of similar import refer to this Agreement as a whole and
not to any particular provision of this Agreement.
(c) The captions of the Articles, Sections, subsections and
paragraphs hereof have been inserted as a matter of convenience of reference
only and shall not affect the meaning or construction of any of the terms or
provisions of this Agreement
ARTICLE II
ORGANIZATION
2.1 FORMATION. The Partnership has been formed as a Delaware limited
partnership pursuant to and in accordance with the provisions of the Act.
2.2 NAME. The name of the Partnership is "[ ] L.P.," and all Partnership
business shall be conducted in that name or such other names that comply with
applicable law as the General Partner may select from time to time. The Partners
shall execute, and the General Partner shall cause to be filed with the proper
offices in each jurisdiction in which the Partnership conducts business, any
certificates that may be required by the fictitious or assumed name act or
similar statute in effect with respect to such jurisdiction.
2.3 REGISTERED OFFICE; REGISTERED AGENT; PRINCIPAL OFFICE. The registered
office of the Partnership in the State of Delaware, and the registered agent for
service of process on the Partnership at such registered office, shall be the
office and agent named in the Certificate or such other office or agent as the
General Partner may designate from time to time in the manner provided by law.
The principal office of the Partnership shall be at [ ] or such other place as
the General Partner may designate from time to time. The Partnership may have
such other offices as the General Partner may designate from time to time.
2.4 PURPOSES. The purposes of the Partnership are to engage exclusively in
the following activities: [(a) to purchase, receive contributions of and own
certain motor
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vehicle loan receivables]; [(a) to purchase, receive contributions of and own
beneficial interests in certain motor vehicle lease receivables and the related
leased vehicles;] (b) to borrow funds and issue evidences of indebtedness in
respect thereof in order to finance or facilitate the purchase of such
receivables; (c) to pledge, transfer, finance or sell interests in such property
and (d) to engage in any other transactions, contracts or agreements (including
interest rate hedge agreements) that are necessary, appropriate or desirable to
accomplish the foregoing or are incidental or connected to the foregoing
purposes.
2.5 FOREIGN QUALIFICATION. The General Partner shall cause the Partnership
to comply, to the extent procedures are available and those matters are
reasonably within the control of the General Partner, with all requirements
necessary to qualify the Partnership as a foreign limited partnership in each
jurisdiction other than Delaware in which the Partnership conducts business or
owns or leases property. The Partners shall execute, acknowledge, swear to and
deliver all certificates and other instruments conforming to this Agreement that
are necessary or appropriate to qualify, continue and terminate the Partnership
as a foreign limited partnership in all such jurisdictions.
2.6 TERM. The Partnership shall commence upon the filing of the
Certificate with the Secretary of State of the State of Delaware and shall
continue in existence until terminated pursuant to the provisions of Article
VIII.
ARTICLE III
PARTNERS AND CAPITAL CONTRIBUTIONS
3.1 PARTNERS. The sole initial General Partner of the Partnership is [ ],
and the sole initial Limited Partner of the Partnership is [ ], each of which
shall be admitted to the Partnership as a Partner effective with the
commencement of the Partnership.
3.2 CAPITAL CONTRIBUTIONS.
(a) Each of the Partners shall make an initial Capital Contribution
in an amount equal to the product of $1,000.00 multiplied by such Partner's
Partnership Percentage. The Partners shall make such further Capital
Contributions as are agreed between them from time to time, such agreement to
make additional Capital Contributions being deemed to have been given by the
Partners if cash or other assets are contributed to the Partnership in
accordance with the Transaction Documents. Any such further Capital
Contributions shall be made by the Partners pro rata in accordance with their
respective Partnership Percentages. Notwithstanding the foregoing, for so long
as the Partnership has outstanding debt held by Persons other than Affiliates of
the Partnership, the Partners shall not make significant Capital Contributions
in the form of cash to retire such debt.
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(b) Except as otherwise provided in this Agreement, no Partner shall
be entitled to any interest on its Capital Contributions or the balance in its
capital account, and neither Partner shall have any right to demand or receive
the return of its Capital Contribution or the balance in its capital account.
(c) Except as specifically provided in this Agreement, no Partner
may contribute capital to, or withdraw capital from, the Partnership. To the
extent any money or property that any Partner is entitled to receive pursuant to
any provision of this Agreement would constitute a return of capital, each of
the other Partners consents to the withdrawal of such capital.
(d) Loans by a Partner to the Partnership shall not be considered
Capital Contributions.
ARTICLE IV
ALLOCATIONS AND DISTRIBUTIONS
4.1 ALLOCATIONS. For each fiscal year of the Partnership, the net income
or net loss of the Partnership, and each item of Partnership income, gain, loss,
deduction and credit for federal income tax purposes, shall be allocated to the
Partners pro rata in accordance with their respective Partnership Percentages;
provided, however, that items of income, gain, loss, deduction and credit
associated with any property contributed to the capital of the Partnership
shall, in accordance with Section 704(c) of the Code, be allocated to the
Partners so as to take account of any variation between the adjusted tax basis
and the fair market value of such property at the time of contribution.
4.2 DISTRIBUTIONS. From time to time, the General Partner shall determine
to what extent (if any) the Partnership's cash on hand exceeds its current and
anticipated needs. If such an excess exists, the General Partner may in its sole
discretion cause the Partnership to distribute to the Partners an amount in cash
equal to that excess. Any such distributions shall be made to the Partners pro
rata in accordance with their respective Partnership Percentages.
Notwithstanding any provision in this Agreement to the contrary, the Partnership
shall not make, and the General Partners shall not approve, any distribution to
a Partner on account of its interest in the Partnership if such distribution
would (a) violate the Act or other applicable law or (b) constitute a default or
event of default under the Transaction Documents.
4.3 CAPITAL ACCOUNTS. The Partnership shall compute and maintain a capital
account for each Partner in accordance with the provisions of section
1.704-1(b)(2)(iv) of the Treasury Regulations promulgated under the Code.
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ARTICLE V
MANAGEMENT
5.1 GENERAL. The powers of the Partnership shall be exercised by or under
the authority of, and the business and affairs of the Partnership shall be
managed by or under the direction of, the General Partner. The acts of the
General Partner, taken on behalf of the Partnership, shall be binding on the
Partnership. Any Person dealing with the Partnership may rely on the authority
of the General Partner in taking any action in the name of the Partnership
without inquiry into the provisions of this Agreement or compliance herewith,
regardless whether that action is actually taken in accordance with the
provisions of this Agreement. Except as otherwise provided in this Agreement,
the Limited Partner shall not have any right of control or management power over
the business or affairs of the Partnership.
5.2 POWERS OF THE GENERAL PARTNER. Subject to the limitations set forth in
this Agreement, the General Partner shall have full and exclusive power and
authority to do, on behalf of the Partnership, all things deemed necessary,
appropriate or desirable by it to conduct, direct and manage the business and
affairs of the Partnership and, in connection therewith, shall have all powers,
statutory or otherwise, possessed by general partners of limited partnerships
under the laws of the State of Delaware. To the fullest extent permitted by law,
the Partnership, and the General Partner on behalf of the Partnership, may enter
into and perform the Transaction Documents to which it is a party and all
documents, agreements, certificates or financing statements contemplated thereby
or related thereto, all without any further act, vote or approval of any Partner
or other Person.
5.3 LIMITATIONS ON THE PARTNERSHIP'S ACTIVITIES.
(a) PURPOSE. This Section is being adopted to make remote the
possibility that the Partnership would enter Bankruptcy, either by itself or by
substantive consolidation with the Bankruptcy of other Persons, including [ ],
should such a Bankruptcy occur.
(b) LIMITATION ON AMENDMENTS. Notwithstanding anything in this
Agreement to the contrary, the General Partner shall not amend, alter or change
any portion of the Separateness Provisions (or any of the definitions in Article
I to the extent used in any of the Separateness Provisions) without the consent
of each of the Partners (including all Independent Directors of the General
Partner then serving in such capacity).
(c) LIMITATION ON MATERIAL ACTIONS. Notwithstanding anything in this
Agreement to the contrary (and notwithstanding any provision of law that
otherwise so empowers the Partnership, the General Partner or any other Person),
neither the General Partner nor any other Person shall be authorized or
empowered to cause or
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permit the Partnership to take any Material Action, and the Partnership shall
not take any Material Action, without the prior written consent of the General
Partner, and no such consent shall be effective unless it has been approved by
all Independent Directors of the General Partner then serving in such capacity.
(d) EXISTENCE. The General Partner shall cause the Partnership to do
or cause to be done all things reasonably necessary to preserve and keep in full
force and effect its existence, rights (charter and statutory) and franchises;
provided, however, that the Partnership shall not be required to preserve any
such right or franchise if the General Partner shall determine that the
preservation thereof is no longer desirable for the conduct of its business and
that the loss thereof is not disadvantageous in any material respect to the
Partnership.
(e) OTHER LIMITATIONS.
(1) In order to ensure the separate and distinct identity of
the Partnership, in addition to the other provisions set forth in this
Agreement, the General Partner shall cause the Partnership to:
(A) Maintain its own books of account, bank accounts and
records separate from any other Person;
(B) Have its own business office (which, however, may be
within the premises of and leased from a Partner or the Affiliate of
a Partner) at which its own separate books of account and records
will be held;
(C) Observe all requirements of the Act, the Certificate
and this Agreement;
(D) Pay all liabilities, including payments to
employees, consultants and agents, directly from its own bank
account;
(E) Readily identify and allocate fairly and reasonably
any overhead expenses for shared office space and for services
performed by a Partners or its Affiliates, between the Partnership
and the Partners or their Affiliates, as applicable;
(F) Preserve its limited partnership form and hold
itself out to the public and all other Persons as a separate legal
entity from all other Persons;
(G) Conduct its business in its own name and correct any
know misunderstandings regarding its separate identity;
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(H) Not identify itself as a division of any other
Person;
(I) Strictly observe financial formalities and maintain
separate financial records that are and will continue to be
maintained to reflect its assets and liabilities separate from those
of any other Person and that will be available for audit by
independent public accountants;
(J) Declare and pay all distributions in accordance with
law, the provisions of this Agreement and the provisions of the
Transaction Documents;
(K) Maintain its assets and liabilities in such a manner
that its individual assets and liabilities can be readily and
inexpensively identified from those of any other Person;
(L) Avoid commingling or pooling of its funds or other
assets or liabilities with those of any other Person, except
temporary commingling of its assets and only to the extent that the
provisions of the Transaction Documents permit such temporary
commingling;
(M) Properly reflect in its financial records all
monetary transactions between it and the Partners or their
Affiliates;
(N) Maintain an arm's length relationship with the
Partners and their Affiliates, as applicable;
(O) Not hold out its credit or assets as being available
to satisfy the obligations of any other Person;
(P) Use separate stationery, telephone lines, invoices
and checks (to the extent checks are used) from any other Person;
(Q) Except as contemplated by the Transaction Documents,
not pledge its assets for the benefit of any other Person;
(R) Maintain financial statements that will be used by
it in its ordinary course of business separate from the financial
statements of any other Person, showing its assets and liabilities
separate and apart from those of any other Person, and not have its
assets listed on any financial statement of any other Person;
(S) Except as otherwise permitted or contemplated herein
or in the Transaction Documents, hold title to each of the
Partnership's assets in the Partnership's name;
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(T) File its own tax returns separate from those of any
other Person (except to the extent that the Partnership is treated
as a "disregarded entity" for tax purposes and is not required to
file tax returns under applicable law) and pay any taxes required to
be paid under applicable law;
(U) Not engage in any business other than as required or
permitted to be performed under Section 2.4 or this Section;
(V) Maintain adequate capital in light of its
contemplated business purpose, transactions and liabilities; and
(W) Cause the General Partner, agents and other
representatives of the Partnership to act at all times with respect
to the Partnership consistently and in furtherance of the foregoing
and in the best interests of the Partnership.
Failure of the Partnership, or the General Partner on behalf of the
Partnership, to comply with any of the foregoing covenants or any other
covenants contained in this Agreement shall not affect the status of the
Partnership as a separate legal entity or the limited liability of any
Partner.
(2) The General Partner shall cause the Partnership to refrain
from taking, and the Partnership shall not take, any of the following
actions:
(A) Guaranteeing any obligation of any Person, including
any Partner or Affiliate thereof;
(B) Incurring, creating or assuming any indebtedness
other than as expressly permitted hereunder and under the
Transaction Documents;
(C) Making or permitting to remain outstanding any loan
or advance to, or owning or acquiring any stock or securities of,
any Person, except that the Partnership may (i) invest in those
investments permitted under the Transaction Documents, (ii) make any
advance required or expressly permitted to be made pursuant to any
provisions of the Transaction Documents and (iii) permit the same to
remain outstanding in accordance with such provisions; or
(D) To the fullest extent permitted by law, engaging in
any dissolution, liquidation, consolidation, merger, asset sale or
transfer of Interests other than such activities as are expressly
permitted pursuant to any provision of the Transaction Documents.
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5.4 CONFLICTS OF INTEREST. The Partners at any time and from time to time
may engage in and possess interests in other business ventures of any and every
type and description, independently or with others, with no obligation to offer
to the Partnership or the other Partner the right to participate in any such
ventures. The Partnership may transact business with the Partners.
5.5 RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNER.
(a) NO MANAGEMENT RIGHTS. Except as expressly provided in this
Agreement, the Limited Partner shall not participate in the management or
control of the Partnership's business, be authorized to transact any business
for the Partnership or have the power to act for or bind the Partnership.
(b) LIMITED LIABILITY. Except as provided by the Act or by the terms
of this Agreement or any other agreement with the Partnership, the Limited
Partner shall not have any personal liability for the expenses, liabilities or
obligations of the Partnership and shall have no personal liability or
obligation to make further contributions to the capital of the Partnership.
5.6 EXCULPATION AND INDEMNIFICATION.
(a) EXCULPATION. To the fullest extent permitted by law, no
Permitted Indemnitee shall be liable to the Partnership or any other Person who
has an interest in or claim against the Partnership for any loss, damage or
claim incurred by reason of any act or omission performed or omitted by such
Permitted Indemnitee in good faith on behalf of the Partnership and in a manner
reasonably believed to be within the scope of the authority conferred on such
Permitted Indemnitee by or pursuant to this Agreement.
(b) RIGHT TO INDEMNIFICATION. The Partnership may indemnify any and
all Permitted Indemnitees against any and all liability and reasonable expense
that may be incurred by them in connection with or resulting from any
Proceeding, any appeal in a Proceeding or any inquiry or investigation that
could lead to a Proceeding, all to the fullest extent permitted by applicable
law. The Partnership may pay or reimburse, in advance of the final disposition
of the Proceeding, all reasonable expenses incurred by any Permitted Indemnitee
who was, is or is threatened to be made a named defendant or respondent in a
Proceeding to the fullest extent permitted by applicable law. The rights of
indemnification provided for in this Section shall be in addition to all rights
to which any Permitted Indemnitee may be entitled under any agreement or vote of
Partners or as a matter of law or otherwise. Notwithstanding the foregoing, no
indemnity payment from funds of the Partnership (as distinct from funds from
other sources, such as insurance) of any indemnity under this subsection shall
be payable from amounts allocable to any other Person pursuant to the
Transaction Documents.
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(c) INSURANCE. The Partnership may purchase or maintain insurance on
behalf of any Permitted Indemnitee against any liability asserted against him
and incurred by him as, or arising out of his status as, a Permitted Indemnitee,
whether or not the Partnership would have the power to indemnify him against the
liability under the Act or this Agreement.
(d) SAVINGS CLAUSE. If this Section or any portion hereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Partnership shall nevertheless indemnify and hold harmless each Permitted
Indemnitee as to costs, charges and expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any Proceeding
to the fullest extent permitted by any applicable portion of this Section that
shall not have been invalidated and to the fullest extent permitted by
applicable law.
(e)ACKNOWLEDGEMENT. IT IS EXPRESSLY ACKNOWLEDGED THAT THE
INDEMNIFICATION PROVIDED IN THIS SECTION COULD INVOLVE INDEMNIFICATION OF A
PERSON FOR HIS, HER OR ITS ORDINARY NEGLIGENCE OR UNDER THEORIES OF STRICT
LIABILITY. NOTWITHSTANDING THIS SECTION 5.6, THE OBLIGATIONS OF THE PARTNERSHIP
UNDER THIS SECTION 5.6 SHALL NOT APPLY TO ACTIONS THAT ARE DETERMINED BY A COURT
OF COMPETENT JURISDICTION TO CONSTITUTE GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR
FRAUD.
ARTICLE VI
BOOKS, RECORDS, ACCOUNTS AND TAX MATTERS
6.1 MAINTENANCE OF BOOKS. The General Partner (or such other Person as the
General Partner may designate from time to time) shall cause the Partnership to
keep books and records of account regarding the Partnership's business. The
books of account for the Partnership shall be maintained on the accrual basis.
6.2 FISCAL YEAR. The fiscal year of the Partnership shall be determined by
the General Partner.
6.3 BANK AND INVESTMENT ACCOUNTS. The General Partner shall establish and
maintain on behalf of the Partnership such banking and investment arrangements
(including arrangements with respect to the establishment and maintenance of
accounts with financial institutions) as from time to time become necessary,
appropriate or desirable in the opinion of the General Partner. All resolutions
set forth in a standard form resolution of any commercial bank or financial or
investment institution at which one or more such accounts are established are
hereby approved and adopted and shall constitute resolutions duly and validly
adopted by the General Partner, on behalf of the Partnership, as if set forth
herein and may be certified as such.
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6.4 TAX REPORTING AND ELECTIONS.
(a) The General Partner shall arrange for the preparation and filing
of all necessary tax returns for the Partnership. The Partners hereby appoint
the General Partner as the "tax matters partner" (as defined in Section
6231(a)(7) of the Code) for federal income tax purposes. As such, the General
Partner shall be authorized to take all action regarding the determination,
assessment and collection of federal income tax under Section 6232 of the Code.
(b) The General Partner shall cause the Partnership to make such
elections for federal income tax purposes as it deems to be in the best
interests of the Partnership and the Partners.
ARTICLE VII
TRANSFER OF PARTNERSHIP INTERESTS
7.1 GENERAL. Except as provided in Section 7.2, neither Partner may
Transfer any portion of its Interest without the express written consent of the
other Partner (which consent may be given or withheld in each Partner's sole,
absolute and unfettered discretion). Notwithstanding anything to the contrary
herein, no Partner may Transfer any portion of its Interest to any Benefit Plan
Investor. Any Transfer or purported Transfer of an Interest not made in
accordance with this Section shall be null and void.
7.2 TRANSFERS TO AFFILIATES. Notwithstanding the provisions of Section
7.1, a Partner may, without the consent of the other Partner, Transfer all or a
portion of its Interest to an Affiliate of such Partner, so long as such
Affiliate is admitted to the Partnership as a Partner pursuant to Section 7.3,
and provided further that such Affiliate is not a Benefit Plan Investor.
7.3 ADMISSION OF TRANSFEREE AS PARTNER.
(a) A Transferee of all or part of an Interest in compliance with
the provisions of Section 7.1 or 7.2 shall become a Partner with respect to the
Transferred Interest only if the Transferor has expressly consented thereto in
writing and the Transferee has executed an instrument (in form and substance
reasonably satisfactory to the General Partner) accepting, adopting and agreeing
to be bound by the terms and conditions of this Agreement. Upon satisfaction of
these conditions with respect to a particular Transferee, the Partners shall
cause this Agreement (and, if necessary, the Certificate) to be duly amended to
reflect the admission of the Transferee as a Partner.
(b) Until admitted as a Partner pursuant to subsection (a) of this
Section, a Transferee of all or a part of an Interest shall have only the rights
afforded to an assignee of a partnership interest pursuant to the Act. A
Transferee that becomes a
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Partner shall have, to the extent of the Interest Transferred to it, all of the
rights and powers, and shall be subject to all the restrictions and obligations,
of a Partner under this Agreement and the Act.
ARTICLE VIII
DISSOLUTION, LIQUIDATION AND TERMINATION
8.1 DISSOLUTION EVENTS. Subject to Section 5.3 and except as provided in
this Section, the Partnership shall be dissolved and its business wound upon the
earliest to occur of the following:
(a) The sale or other disposition of all or substantially all the
assets of the Partnership and the distribution of the proceeds of such sale or
other disposition to the Partners;
(b) The entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act;
(c) There are no limited partners of the Partnership, unless the
business of the Partnership is continued in accordance with the provisions of
the Act and this Agreement; or
(d) The occurrence of an event of withdrawal of a general partner of
the Partnership unless the business of the Partnership is continued in
accordance with the provisions of the Act and this Agreement.
8.2 BANKRUPTCY OF PARTNERS.
(a) BANKRUPTCY OF GENERAL PARTNER. Notwithstanding any other
provision of this Agreement to the contrary, the Bankruptcy of the General
Partner shall not cause the General Partner to cease to be a general partner of
the Partnership and upon the occurrence of such an event, the Partnership shall
continue without dissolution.
(b) BANKRUPTCY OF LIMITED PARTNER. Notwithstanding any other
provision of this Agreement to the contrary, the Bankruptcy, death, disability
or declaration of incompetence of the Limited Partner shall not, in and of
itself, dissolve the Partnership, but the rights of the Limited Partner to share
in the profits and losses of the Partnership and to receive distributions of
Partnership funds shall, on the happening of such an event, devolve upon the
Limited Partner's "personal representative" (as defined in the Act), subject to
this Agreement, and the Partnership shall continue as a limited partnership. In
no event shall the Limited Partner's personal
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representative become a substituted limited partner, except in accordance with
Sections 7.3 and 8.3(a).
8.3 CONTINUATION OF PARTNERSHIP.
(a) Notwithstanding any other provision of this Agreement to the
contrary, upon the occurrence of any event that would result in there being no
limited partner in the Partnership, the Partnership shall not dissolve and the
General Partner or the personal representative of the last remaining Limited
Partner shall agree in writing to continue the business of the Partnership and
to the admission of the personal representative of the Limited Partner or its
nominee or designee to the Partnership as a limited partner, effective as of the
occurrence of the event that caused the last Limited Partner to cease to be a
limited partner. Such remaining Limited Partner is hereby authorized to continue
the business of the Partnership without dissolution.
(b) Upon the occurrence of any event of withdrawal with respect to
the General Partner, the business of the Partnership will be continued if,
within 90 calendar days, the Limited Partner elects to continue the business of
the Partnership and designates a Person to be the General Partner of the
Partnership upon terms consented to the Limited Partner (effective as of the
occurrence of the event of withdrawal with respect to the General Partner). If
the business of the Partnership is continued, the interest of the General
Partner that has withdrawn will be converted to that of a Limited Partner unless
the General Partner remains the General Partner. If the Limited Partner fails to
continue the Partnership's business as provided in this subsection, the
Partnership will be liquidated under Section 8.5, subject, however, to Sections
5.3, 8.2(a) and 8.7.
8.4 WAIVER. Notwithstanding any other provision of this Agreement, each
Partner waives any right it might have to agree in writing to dissolve the
Partnership upon the Bankruptcy of a Partner or the occurrence of an event that
causes a Partner to cease to be a partner of the Partnership.
8.5 LIQUIDATION. Subject to Section 8.7, upon the happening of any of the
events specified in Section 8.1 and, if applicable, the failure to continue the
business of the Partnership under Section 8.3, the General Partner (or, in the
event dissolution is caused by the withdrawal or retirement from the Partnership
of the General Partner, a liquidator selected by the Limited Partner) shall be
the liquidator of the Partnership (the "Liquidator"). The Liquidator shall as
promptly as possible wind up the affairs of the Partnership to the extent
necessary to satisfy the debts and obligations of the Partnership. Until final
distribution, the Liquidator shall continue to operate the Partnership
properties subject to the provisions of this Agreement and, in that regard,
shall have and may exercise, without further authorization or consent of any of
the Partners, all the powers conferred upon the General Partner under the terms
of this Agreement. The steps to be accomplished by the Liquidator are as
follows:
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(a) The Liquidator shall pay, satisfy or discharge from Partnership
assets all of the debts, liabilities and obligations of the Partnership
(including all expenses incurred in liquidation) or otherwise make adequate
provision for payment and discharge thereof (including the establishment of an
escrow fund for contingent liabilities in such amount and for such term as the
Liquidator may reasonably determine or the assumption by a financially
responsible and solvent Person of the Partnership's obligation to pay and
discharge such debts, liabilities and obligations); and
(b) The Liquidator shall distribute all remaining assets of the
Partnership to the Partners in accordance with the provisions of Section 8.6.
8.6 LIQUIDATING DISTRIBUTIONS TO PARTNERS.
(a) Liquidating distributions pursuant to Section 8.5(b) shall be
made to the Partners pro rata in accordance with the positive balances in their
respective capital accounts.
(b) Liquidating distributions may be made in cash or in the form of
property. In the event that any property is distributed to the Partners in kind
pursuant to this Section, appropriate adjustments shall be made to the Partners'
capital accounts to take account of any variation between the adjusted tax basis
and the fair market value of such property at the time of distribution.
(c) Upon the liquidation of a Partner's Interest, liquidating
distributions with respect thereto shall be made on or before the later of the
end of the Partnership's taxable year (determined without regard to section
706(c)(2)(A) of the Code) in which such liquidation occurs or the 90th day after
the date of such liquidation. For purposes of this subsection, a liquidation of
a Partner's Interest shall be deemed to occur upon the earlier of (1) the date
upon which the Partnership is terminated pursuant to section 708(b)(1) of the
Code, (2) the date upon which the Partnership ceases to be a going concern or
(3) the date upon which there is a liquidation of the Partner's Interest within
the meaning of section 761(d) of the Code.
(d) If the Partnership makes distributions in kind of the
Partnership's property that secures indebtedness, each of the Partners receiving
the distribution of property subject to the indebtedness will be severally
liable (as among each other, but not for the benefit of others) for its
proportionate share of the indebtedness; provided, however, that (1) no Partner
will be deemed to have assumed any liability on any indebtedness secured by
property distributed to any Partner for which the Partner is not liable under
the terms of the instrument creating the indebtedness and (2) the liability of
each Partners to the other Partners for any indebtedness secured by property
distributed to such Partner will be limited to the value of its interest in the
property. Indebtedness secured by property distributed to Partners in kind need
not be discharged out of the proceeds of the liquidation of the Partnership.
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8.7 CERTIFICATE OF CANCELLATION. On completion of the liquidating
distributions as provided herein, the Partnership shall be considered
terminated, and the Liquidator shall file a Certificate of Cancellation with the
Secretary of State of the State of Delaware and shall take such other actions as
may be necessary, appropriate or desirable to terminate the Partnership. The
establishment of any reserves in accordance with the provisions of Section 8.5
shall not have the effect of extending the term of the Partnership, but any such
reserve shall be distributed in the manner provided in Section 8.6 upon
expiration of the need for the reserve.
ARTICLE IX
GENERAL PROVISIONS
9.1 NOTICES. Any notice required to be delivered hereunder shall be in
writing. Notices and other communications will be deemed to have been given when
dispatched by means of electronic facsimile transmission or three business days
after being deposited in the United States mail, postage prepaid, addressed to
the Partner to whom the notice is intended to be given at its address set forth
below its name on the signature page of this Agreement or, in the case of the
Partnership, to the Partnership's principal offices. A Partner may change its
address for notices by giving written notice thereof to the Partnership and each
other Partner pursuant to the provisions of this Section.
9.2 AMENDMENTS. Subject to Section 5.3(b), this Agreement may be amended
pursuant to a written agreement executed and delivered by all the Partners.
9.3 BINDING EFFECT. This Agreement shall be binding on and shall inure to
the benefit of the Partners and their successors and assigns.
9.4 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
9.5 SEVERABILITY. If any provision of this Agreement or the application
thereof to any Person or circumstance is held invalid or unenforceable to any
extent, that provision shall be fully severable, the remainder of this Agreement
and the application of that provision to other Persons or circumstances shall
not be affected thereby and that provision shall be enforced to the greatest
extent permitted by law.
9.6 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement of
the Partners with respect to the subject matter hereof.
9.7 BENEFITS OF AGREEMENT; NO THIRD PARTY RIGHTS. None of the provisions
of this Agreement shall be for the benefit of or enforceable by any creditor of
the Partnership or by any creditor of a Partner except for the provisions of
Sections 2.4,
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5.1, 5.2, 5.3, 5.6, 9.2 and 9.7 and Articles VII and VIII (such provisions being
referred to herein as the "Third Party Benefit Provisions"). Nothing in this
Agreement other than the Third Party Benefit Provisions shall be deemed to
create any right in any Person (other than the Partners) not a party hereto, and
this Agreement shall not be construed in any respect to be a contract in whole
or in part for the benefit of any Person not a party hereto (except for the
Third Party Benefit Provisions).
9.8 LIMITED LIABILITY. Except as otherwise expressly provided by the Act,
the debts, obligations and liabilities of the Partnership, whether arising in
contract, tort or otherwise, shall be the debts, obligations and liabilities
solely of the Partnership, and no Partner shall be obligated personally for any
such debt, obligation or liability of the Partnership solely by reason of being
a Partner.
9.9 WAIVER OF RIGHT OF PARTITION AND DISSOLUTION. Except as otherwise
expressly provided in this Agreement, to the fullest extent permitted by law,
each Partner hereby irrevocably waives any right or power that such Person might
have to cause the Partnership or any of its assets to be partitioned, to cause
the appointment of a receiver for all or any portion of the assets of the
Partnership, to compel any sale of all or any portion of the assets of the
Partnership pursuant to any applicable law or to file a complaint or to
institute any proceeding at law or in equity to cause the dissolution,
liquidation, winding up or termination of the Partnership. The Partners shall
not have any interest in any specific assets of the Partnership, and no Partner
shall have the status of a creditor with respect to any distribution pursuant to
Section 4.2. The interests of the Partners in the Partnership are personal
property.
(SIGNATURE PAGE ATTACHED)
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In witness whereof, the Partners have executed this Agreement effective
as of the date first set forth above.
GENERAL PARTNER:
[ ]
Address:
By: ___________________________
NAME:
TITLE:
LIMITED PARTNER:
[ ]
By: [ ]
Address: [ ]
By: ___________________________
NAME:
TITLE:
By: ____________________________
NAME:
TITLE:
Signature Page
LIMITED PARTNERSHIP AGREEMENT
([ ] L.P.)
EXHIBIT A
TRANSACTION DOCUMENTS
Exhibit A
LIMITED PARTNERSHIP AGREEMENT
([ ] L.P.)
