EXHIBIT 4.2
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
UDS FUNDING I, L.P.
Dated as of June 25, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINED TERMS
Section 1.1 DEFINITIONS
ARTICLE II
CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PARTNERSHIP PREFERRED SECURITIES HOLDERS;
WITHDRAWAL OF INITIAL LIMITED PARTNER
Section 2.1 CONTINUATION OF THE PARTNERSHIP
Section 2.2 NAME
Section 2.3 PURPOSES OF THE PARTNERSHIP
Section 2.4 TERM
Section 2.5 REGISTERED AGENT AND OFFICE
Section 2.6 PRINCIPAL PLACE OF ACTIVITY
Section 2.7 NAME AND ADDRESS OF GENERAL PARTNER
Section 2.8 QUALIFICATION TO CONDUCT ACTIVITIES
Section 2.9 ADMISSION OF HOLDERS OF PARTNERSHIP PREFERRED SECURI
TIES; WITHDRAWAL OF INITIAL LIMITED PARTNER
ARTICLE III
CAPITAL CONTRIBUTIONS; REPRESENTATION OF
PARTNERSHIP PREFERRED SECURITY HOLDER'S INTEREST;
CAPITAL ACCOUNTS
Section 3.1 CAPITAL CONTRIBUTIONS
Section 3.2 PARTNERSHIP PREFERRED SECURITY HOLDER'S INTEREST REPRE
SENTED BY PARTNERSHIP PREFERRED SECURITIES
Section 3.3 CAPITAL ACCOUNTS
Section 3.4 INTEREST ON CAPITAL CONTRIBUTIONS
Section 3.5 WITHDRAWAL AND RETURN OF CAPITAL CONTRIBUTIONS
ARTICLE IV
ALLOCATIONS
Section 4.1 PROFITS AND LOSSES
Section 4.2 SPECIAL ALLOCATION
Section 4.3 WITHHOLDING
ARTICLE V
DISTRIBUTIONS
Section 5.1 DISTRIBUTIONS
Section 5.2 LIMITATIONS ON DISTRIBUTIONS
ARTICLE VI
ISSUANCE OF PARTNERSHIP PREFERRED SECURITIES
Section 6.1 GENERAL PROVISIONS REGARDING PARTNERSHIP PREFERRED
SECURITIES
Section 6.2 PARTNERSHIP PREFERRED SECURITIES
ARTICLE VII
PARTNERSHIP INVESTMENTS
Section 7.1 INITIAL AFFILIATE INVESTMENT INSTRUMENTS
Section 7.2 REINVESTMENT OF PAYMENTS RECEIVED BY THE PARTNERSHIP
ARTICLE VIII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 8.1 BOOKS AND RECORDS
Section 8.2 ACCOUNTING METHOD
Section 8.3 ANNUAL AUDIT
ARTICLE IX
PAYMENT OF EXPENSES
Section 9.1 PAYMENT OF TRUST EXPENSES AND PARTNERSHIP TAXES
Section 9.2 PAYMENT OF OTHER PARTNERSHIP EXPENSES
ARTICLE X
POWERS, RIGHTS AND DUTIES
OF THE LIMITED PARTNERS
Section 10.1 LIMITATIONS
Section 10.2 LIABILITY
Section 10.3 PRIORITY
ARTICLE XI
POWERS, RIGHTS AND DUTIES
OF THE GENERAL PARTNER
Section 11.1 AUTHORITY
Section 11.2 POWERS AND DUTIES OF GENERAL PARTNER
Section 11.3 OBLIGATIONS AND EXPENSES PAYABLE BY GENERAL PARTNER
Section 11.4 LIABILITY
Section 11.5 OUTSIDE ACTIVITIES
Section 11.6 LIMITS ON GENERAL PARTNER'S POWERS
Section 11.7 EXCULPATION
Section 11.8 FIDUCIARY DUTY
Section 11.9 INDEMNIFICATION
Section 11.10 TAX MATTERS
Section 11.11 CONSOLIDATION, MERGER OR SALE OF ASSETS
ARTICLE XII
TRANSFERS OF INTERESTS BY PARTNERS
Section 12.1 TRANSFER OF INTERESTS
Section 12.2 TRANSFER OF L.P. CERTIFICATES
Section 12.3 DEFINITIVE L.P. CERTIFICATES; PERSONS DEEMED PARTNER
SHIP PREFERRED SECURITY HOLDERS
Section 12.4 BOOK ENTRY PROVISIONS
Section 12.5 REGISTRAR, TRANSFER AGENT AND PAYING AGENT
ARTICLE XIII
WITHDRAWAL, DISSOLUTION;
LIQUIDATION AND DISTRIBUTION OF ASSETS
Section 13.1 WITHDRAWAL OF PARTNERS
Section 13.2 DISSOLUTION OF THE PARTNERSHIP
Section 13.3 LIQUIDATION
Section 13.4 DISTRIBUTION IN LIQUIDATION
Section 13.5 RIGHTS OF LIMITED PARTNERS
Section 13.6 TERMINATION
ARTICLE XIV
AMENDMENTS AND MEETINGS
Section 14.1 AMENDMENTS
Section 14.2 AMENDMENT OF CERTIFICATE
Section 14.3 MEETINGS OF PARTNERS
ARTICLE XV
MISCELLANEOUS
Section 15.1 NOTICES
Section 15.2 POWER OF ATTORNEY
Section 15.3 ENTIRE AGREEMENT
Section 15.4 GOVERNING LAW
Section 15.5 EFFECT
Section 15.6 PRONOUNS AND NUMBER
Section 15.7 CAPTIONS
Section 15.8 PARTIAL ENFORCEABILITY
Section 15.9 COUNTERPARTS
Section 15.10 WAIVER OF PARTITION
Section 15.11 REMEDIES
Schedule 1 LIST OF PARTNERS
Annex A FORM OF L.P. CERTIFICATE
Exhibit A FORM OF INDENTURE OF ULTRAMAR DIAMOND SHAMROCK
CORPORATION
Exhibit B FORM OF INDENTURE FOR SUBSIDIARIES
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
UDS FUNDING I, L.P.
June 25, 1997
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of UDS
Funding I, L.P., a Delaware limited partnership (the "Partnership"),
dated as of June 25, 1997, among Ultramar Diamond Shamrock Corporation a
Delaware corporation (the "Company"), as the general partner, H. Xxxx
Xxxxx, as the initial limited partner (the "Initial Limited Partner")
and such other Persons (as defined herein) who become Limited Partners
(as defined herein) as provided herein.
WHEREAS, the Company and the Initial Limited Partner entered
into an Agreement of Limited Partnership of UDS Funding I, L.P. dated as
of June 5, 1997 (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 Agree-
ment 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 June 5, 1997;
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 Declaration.
"Act" means the Delaware Revised Uniform Limited Partnership
Act, Del. Code Xxx. tit. 6, Section 17-101 et seq., as amended from time to
time.
"Affiliate" has the meaning set forth in Section 1.1 of the
Declaration.
"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 June 5, 1997, as it may be amended and restated from time to
time.
"Change in 1940 Act Law" has the meaning set forth in Section
1.1 of the Declaration.
"Closing Date" has the meaning set forth in Section 1.1 of the
Declaration.
"Code" means the Internal Revenue Code of 1986, as amended
from time to time, or any successor legislation.
"Company" means Ultramar Diamond Shamrock Corporation, a Dela-
ware corporation.
"Compounded Distributions" has the meaning set forth in
Section 6.2 of this Agreement.
"Declaration" means the Amended and Restated Declaration of
Trust by and among the Company, as Sponsor, the Property Trustee, the
Delaware Trustee, and the Regular Trustees, dated as of June 25, 1997.
"Definitive L.P. Certificates" has the meaning set forth in
Section 12.4(a) of this Agreement.
"Delaware Partnership 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 6.2 of
the Declaration.
"Distribution Payment Date" has the meaning set forth in
Section 6.2(b)(ii) of this Agreement.
"Distributions" means the cumulative cash distributions
payable by the Partnership with respect to the Interests represented by
the Partnership Preferred Securities, which amounts will accumulate on
the $25 liquidation preference of each Partnership Preferred Security
from the Closing Date and are payable quarterly in arrears 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 there-
of, 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.
"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 Ultramar Diamond Shamrock Corporation,
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 Partnership Preferred Securities.
"General Partner Interest" means the Interest of the General
Partner in the Partnership.
"Holder" or "Partnership Preferred Security Holder" means a
Limited Partner in whose name an L.P. Certificate representing
Partnership Preferred Securities is registered.
"Indentures" means the Indentures between the Company or
certain of its subsidiaries, as the case may be, and The Bank of New
York, as Indenture Trustee, dated as of June 25, 1997, forms of which
are attached hereto as Exhibits A and B, respectively.
"Independent Financial Adviser" shall mean a nationally recog-
nized 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 Affiliate Debentures" has the meaning set forth in
Section 7.1(b) of this Agreement.
"Initial Company Debenture" has the meaning set forth in
Section 7.1(b) of this Agreement.
"Initial Debentures" means collectively, the Initial Company
Debenture and the Initial Affiliate Debentures.
"Initial Limited Partner" means H. Xxxx Xxxxx.
"Initial Partnership Proceeds" means the aggregate proceeds
received by the Partnership from the sale of the Partnership Preferred
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 the Company or 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 that is a debt instrument or the
breach by an Investment Affiliate of its obligations under any Affiliate
Investment Instrument that is an equity instrument.
"Investment Guarantee" has the meaning specified in Section
1.1 of the Declaration.
"Investment Offer" has the meaning specified in Section 7.2(b)
of this Agreement.
"Limited Partner" means 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 Partnership Preferred
Securities held by a Limited Partner.
"Majority in Liquidation Preference" means Holder(s) of
Partnership Preferred Securities who are the record owners of Partner-
ship Preferred Securities whose aggregate liquidation preferences repre-
sent more than 50% of the aggregate liquidation preference of all
Partnership Preferred 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, for all purposes, the net income, if any, from
the Affiliate Investment Instruments, Eligible Debt Securities and any
income exempt from tax and any noncapital, nondeductible expenditures of
the Partnership which are described in the Code.
"1940 Act" has the meaning set forth in Section 1.1 of the
Declaration.
"Original Partnership Agreement" has the meaning set forth in
the recitals to this Agreement.
"Partners" means the General Partner and the Limited Partners,
collectively, where no distinction is required by the context in which
the term is used.
"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 June 25, 1997 by the Company in favor of the Par-
tnership Preferred Security Holders with respect to the Partnership Pre-
ferred 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 Affili-
ates.
"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 Preferred Securities" represent the Interests of
Limited Partners and have the preference and designation set forth in
Section 6.2(a) of this Agreement.
"Partnership Preferred Securities Purchase Agreement" means
the partnership purchase agreement between the Trust and the Partnership
providing for the purchase of the Partnership Preferred Securities.
"Partnership Preferred 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).
"Partnership Special Event" means either a Partnership Tax
Event or a Partnership Investment Company Event.
"Partnership Successor Securities" has the meaning set forth
in Section 11.11 of this Agreement.
"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 (iii) below and that there is more than an insubstantial
risk that (i) the Partnership is, or will be, subject to United States
federal 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 or (iii) interest
payable by an Investment Affiliate with respect to the Initial Deben-
tures is not, or will not be, deductible by such Investment Affiliate
for United States federal income tax purposes.
"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 there-
of, or any other entity of whatever nature.
"Power of Attorney" means the Power of Attorney granted
pursuant to Section 15.2 of this Agreement.
"Property Trustee" has the meaning set forth in Section 1.1 of
the Declaration.
"Purchase Agreement" means the Purchase Agreement dated June
20, 1997 among the Company, the Trust, the Partnership and Xxxxxxx Xxxxx
& Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
"Record Date" means (i) as long as the Trust Preferred
Securities remain (or, in the event that the Trust is liquidated in
connection with a Trust Special Event, as long as the Partnership
Preferred Securities remain) in book-entry only form, one Business Day
prior to the relevant payment dates and (ii) in the event that the Trust
Preferred Securities (or in the event that the Trust is liquidated in
connection with a Trust Special Event, the Partnership Preferred
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.
"Regular Trustees" has the meaning set forth in Section 1.1 of
the Declaration.
"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.
"Special Representative" has the meaning set forth in Section
6.2(h)(i) of this Agreement.
"Tax Action" has the meaning set forth in Section 1.1 of the
Declaration.
"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
Partnership Preferred Securities voting together as a single class
representing 10% of the aggregate liquidation amount of the Partnership
Preferred Securities.
"Treasury Regulations" has the meaning set forth in Section
1.1 of the Declaration.
"Trust" means UDS Capital I, a Delaware business trust.
"Trust Common Securities" has the meaning specified in Section
8.1 of the Declaration.
"Trust Common Securities Guarantee" means the Trust Common
Securities Guarantee Agreement dated as of June 25, 1997, entered into
by the Company, as Guarantor, for the benefit of the holders of the
Trust Common Securities.
"Trust Preferred Securities" has the meaning specified in
Section 8.1 of the Declaration.
"Trust Preferred Securities Guarantee" means the Trust
Preferred Securities Guarantee Agreement dated as of June 25, 1997,
entered into by the Company, as Guarantor, for the benefit of the
holders of the Trust Preferred Securities.
ARTICLE II
CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PARTNERSHIP PREFERRED SECURITIES HOLDERS;
WITHDRAWAL OF INITIAL LIMITED PARTNER
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 appropri-
ate 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 "UDS
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 purposes of the
Partnership are (a) to issue limited partnership interests in the
Partnership in the form of Partnership Preferred Securities, (b) to
receive the General Partner Capital Contribution, (c) to use substan-
tially all of the Initial Partnership Proceeds to purchase, as an
investment, the Initial Debentures, (d) to invest, at all times, an
amount equal to at least 1% 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 Partnership Preferred 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 fore-
going 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 shall commence
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 CT Corporation,
Corporate Trust Center, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000.
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 Ultramar Diamond Shamrock
Corporation, 0000 Xxxxxxxxx Xxxxxxxxx, Xxx Xxxxxxx, Xxxxx 00000. 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:
Ultramar Diamond Shamrock Corporation
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000.
Attention: 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 PARTNERSHIP PREFERRED
SECURITIES; WITHDRAWAL OF INITIAL LIMITED PARTNER.
(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) Following the first admission of a Partnership Preferred
Security Holder to the Partnership as a Limited Partner, the Initial
Limited Partner shall withdraw from the Partnership and shall receive
the return of its capital contribution without interest or deduction.
(c) 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
PARTNERSHIP PREFERRED 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
Initial Limited Partner referred to in Section 3.1(b). Contemporaneous
with the issuance of the Partnership Preferred Securities, the General
Partner shall make the General Partner Capital Contribution. The Gener-
al Partner shall, from time to time, make such additional capital
contributions as are necessary to maintain at all times a positive
Capital Account balance equal to at least one percent (1%) of the
aggregate positive Capital Account balances of all Partners at the end
of such period.
(b) The Initial Limited Partner has, prior to the date
hereof, contributed the amount of $85.00 to the capital of the
Partnership, which amount shall be returned to the Initial Limited
Partner as contemplated by Section 2.9(b).
(c) On the Closing Date, the Trust shall, in exchange for a
definitive L.P. Certificate, contribute to the capital of the Partner-
ship on behalf of the Trust an amount in cash equal to the gross
proceeds from the sale of the Trust Preferred Securities and the Trust
Common Securities (such amount being a capital contribution to the
Partnership). On such date, immediately following the withdrawal of the
Initial Limited Partner, the Trust shall be the sole Limited Partner.
(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 PARTNERSHIP PREFERRED SECURITY HOLDER'S INTEREST
REPRESENTED BY PARTNERSHIP PREFERRED SECURITIES. A Partnership Pref-
erred Security Holder's Interest shall be represented by the Partnership
Preferred Securities held by or on behalf of such Partner. Each Part-
nership Preferred Security Holder's respective ownership of Partnership
Preferred 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 Sec-
tion 3.3(a) hereof 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 discre-
tion, 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 PROFITS AND 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 Partnership Preferred 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
Partnership Preferred 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 Partnership Preferred
Securities, an amount of Net Income equal to the excess of (x) the
Distributions accumulated on the Partnership Preferred Securities
from the date of their issuance through and including the last day
of such Fiscal Period, including any Compounded Distributions pay
able with respect thereto, over (y) the amount of Net Income allo
cated to the Holders of the Partnership Preferred Securities pursu
ant to this Section 4.1(a)(ii) in all prior Fiscal Periods.
Amounts allocated to all Partnership Preferred Security Holders
shall be allocated among such Holders in proportion to the number
of Partnership Preferred 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 in proportion to their respec
tive 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 ALLOCATION.
(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 allo-
cated 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. The Partners intend that the
allocations under Section 4.1 conform to section 704 of the Code and the
Treasury Regulations promulgated thereunder 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 Regu-
lations.
(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 adjust-
ments.
(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 the positive Capital Account balances would
result in a distribution that would be different from a distribution
under Article XIII, 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 pre-
ceding taxable year) shall be allocated to the Partners to increase or
decrease their respective Capital Account balances so that the final
distribution will occur in the same manner as a distribution under
Section 13.4.
(f) GENERAL PARTNER ALLOCATIONS. Notwithstanding any
provision of this Agreement to the contrary, the interest of the General
Partner in each item of Partnership income, gain, loss, deduction, or
credit shall, at all times during the existence of the Partnership, be
equal to at least (A) at any time that the aggregate capital
contributions to the Partnership are equal to or less than $50,000,000,
one percent (1%) of each such item and (B) at any time that the
aggregate capital contributions to the Partnership are greater than
$50,000,000, at least a percentage equal to the product of (i) one per-
cent (1%) and (ii) a fraction (not exceeding 1 and not less than 0.2),
the numerator of which is $50,000,000 and the denominator of which is
the lesser of (x) the aggregate Capital Account balances of the Capital
Accounts of all Partners at such time and (y) the aggregate capital con-
tributions to the Partnership of all Partners at such time.
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 with-
hold 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 fulfill-
ing, its withholding obligations.
ARTICLE V
DISTRIBUTIONS
Section 5.1 DISTRIBUTIONS. Limited Partners shall receive
periodic Distributions and Compounded Distributions, if any, redemption
payments and liquidation distributions in accordance with the terms of
the Partnership Preferred 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 accumulated and unpaid Distributions, including any Compounded
Distributions, 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 Partner-
ship in respect of Affiliate Investment Instruments and Eligible Debt
Securities for each Fiscal Period exceed the amount of Distributions,
including any Compounded Distributions, paid on the Partnership Pre-
ferred 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 PARTNERSHIP PREFERRED SECURITIES
Section 6.1 GENERAL PROVISIONS REGARDING PARTNERSHIP PRE-
FERRED SECURITIES.
(a) There is hereby authorized for issuance and sale
Partnership Preferred Securities having an aggregate liquidation
preference not greater than $206,186,000 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 Partnership Preferred Securities) shall be guaranteed by the
Company pursuant to and to the extent set forth in the Partnership
Guarantee. The Partnership Preferred Security Holders hereby authorize
the General Partner to hold the Guarantee on behalf of the Partnership
Preferred Security Holders. In the event of an appointment of a Special
Representative pursuant to Section 6.2(i), among other things, to en-
force 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 Partnership Preferred Security Holders. The Partner-
ship Preferred Security Holders, by acceptance of such Partnership Pref-
erred 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 Partnership Preferred Securities and the
General Partner Interest, provided that the Partnership may accept
consideration for additional capital contributions from the General
Partner with respect to the General Partner Interest. All Partnership
Preferred Securities shall rank senior to all other Interests in the
Partnership in respect of the right to receive Distributions. All Par-
tnership Preferred Securities redeemed, purchased or otherwise acquired
by the Partnership shall be canceled. The Partnership Preferred Securi-
ties 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 Partnership Preferred 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 Partnership Preferred 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 Partnership Pre-
ferred Security owned by it, and shall, for purposes of such vote or
consent, be treated as if they were not outstanding except for
Partnership Preferred Securities purchased or acquired by the Company or
its affiliates in connection with transactions effected by or for the
account of customers of the Company or any of its subsidiaries or in
connection with the distribution or trading of such Partnership
Preferred Securities; provided, however, that persons (other than
affiliates of the Company) to whom the Company or any of its sub-
sidiaries have pledged Partnership Preferred Securities may vote or
consent with respect to such pledged Partnership Preferred Securities
under any of the circumstances described in Section 6.2.
Section 6.2 PARTNERSHIP PREFERRED SECURITIES.
(a) DESIGNATION. A total of 8,247,440 Partnership Preferred
Securities, liquidation preference $25 per Partnership Preferred
Security, are hereby designated as "8.32% Partnership Preferred Securi-
ties".
(b) DISTRIBUTIONS. (i) Partnership Preferred Security Hold-
ers shall be entitled to receive cumulative Distributions and Compounded
Distributions (as defined below) (if any), if, as and when declared by
the General Partner, in its sole discretion, out of the assets of the
Partnership legally available therefor, at a rate per annum of 8.32% of
the stated liquidation preference of $25 per Partnership Preferred Secu-
rity, calculated on the basis of a 360-day year consisting of twelve 30-day
months. For any period shorter than a full 90-day quarter, Dis-
tributions will be computed on the basis of the actual number of days
elapsed in such 90-day quarter. Such Distributions shall, from the date
of original issue, accumulate and be cumulative and shall be payable
quarterly, when, if, and as declared by the General Partner on the dates
specified in Section 6.2(b)(ii) below. Distributions and Compounded
Distributions (as defined below) (if any) on the Partnership Preferred
Securities shall be cumulative from the Closing Date. Distributions not
paid on the scheduled Distribution Payment Date will accumulate and com-
pound quarterly at the rate of 8.32% per annum ("Compounded Distribu-
tions"). In the event that any date on which Distributions are payable
on the Partnership Preferred Securities is not a Business Day, then
payment of the Distribution payable on such date will be made on the
next succeeding day which is a Business Day (and without any interest or
other payment in respect of any such delay) except that, if such Busi-
ness Day is 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.
(ii) Distributions on the Partnership Preferred Securities
will be payable quarterly in arrears if, as and when, declared by the
General Partner on March 31, June 30, September 30 and December 31 of
each year, commencing on June 30, 1997 (each a "Distribution Payment
Date").
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 Partnership
Preferred 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 pay-
able on any Partnership Preferred Securities that are not punctually
paid on any Distribution Payment Date will cease to be payable to the
Person in whose name such Partnership Preferred Securities are regis-
tered on the relevant record date, and such Distribution will instead be
payable to the Person in whose name such Partnership Preferred Securi-
ties are registered on the special record date or other specified date
for payment of such defaulted or accumulated Distribution.
(c) OPTIONAL REDEMPTION. Partnership Preferred Securities
shall be redeemable at the option of the General Partner, in whole or in
part, from time to time, on or after June 30, 2002, upon not less than
30 nor more than 60 days notice, at an amount per Partnership Preferred
Securities equal to $25 plus accumulated and unpaid Distributions
thereon, including any Compounded Distributions (the "Redemption
Price"). The Partnership may not redeem the Partnership Preferred
Securities in part unless all accumulated and unpaid Distributions, in-
cluding any Compounded Distributions, have been paid in full on all
Partnership Preferred Securities for all Fiscal Periods terminating on
or prior to the date of redemption. If a partial redemption of the
Partnership Preferred Securities would result in the delisting of the
Trust Preferred Securities (or, if the Trust is liquidated in connection
with a Trust Special Event, or if a partial redemption would result in
the delisting of the Partnership Preferred Securities), the Partnership
may only redeem the Partnership Preferred Securities in whole but not in
part.
(d) SPECIAL EVENT REDEMPTIONS. (i) If, at any time, a Part-
nership 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 Partnership Preferred
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 Partnership Pre-
ferred 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 attrib-
utable to the Partnership Special Event.
(e) REDEMPTION PROCEDURES. (i) Notice of any redemption of
Partnership Preferred Securities (a "Redemption Notice") will be given
by the Partnership by mail to each Holder of Partnership Preferred
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 Partnership Preferred Securities. Each Redemp-
tion Notice shall be addressed to the Holders of Partnership Preferred
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
Partnership Preferred Securities are to be redeemed, the Partnership
Preferred Securities to be redeemed shall be redeemed pro rata provided,
that, in the event Partnership Preferred 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 Partic-
ipant in the Partnership Preferred Securities to be redeemed; provided,
that if, as a result of such pro rata redemption, Holders would hold
fractional interests in the Partnership Preferred 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 Partnership Preferred
Securities are in book-entry only form with DTC, will deposit irrevoca-
xxx with DTC funds sufficient to pay the applicable Redemption Price and
will give DTC irrevocable instructions and authority to pay the Redemp-
tion Price in respect of the Partnership Preferred Securities held
through DTC in global form or (B) if the Partnership Preferred Securi-
ties 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 Partnership Preferred Securities and will give to the Paying
Agent irrevocable instructions and authority to pay such amounts to the
Holders of Partnership Preferred Securities, upon surrender of their
certificates, by check, mailed to the address of the relevant Holder ap-
pearing 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 Partnership Preferred Securities,
payment of cash shall be made by wire in same day funds to the Holder by
10:00 a.m., New York City time, on the redemption date. For these pur-
poses, 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 Partnership Preferred 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 Partnership Preferred
Securities will not accumulate Distributions or bear interest.
In the event that any date fixed for redemption of Partnership
Preferred Securities is not a Business Day, then payment of the Redemp-
tion 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
Partnership Preferred 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 Partnership Preferred 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 Partnership Preferred Securities have been
distributed to the Holders (as defined in the Declaration) of Trust Pre-
ferred Securities, the Company or any of its subsidiaries may at any
time and from time to time purchase outstanding Partnership Preferred
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 Partnership Preferred
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. (1) If one or more of the
following events shall occur and be continuing (each a "Partnership En-
forcement Event"): (i) arrearages on distributions on the Partnership
Preferred Securities shall exist for six 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 Partnership Preferred
Securities are held by the Property Trustee, will have the right, or the
Holders of the Partnership Preferred Securities, upon the affirmative
vote of at least a Majority in Liquidation Preference of the Partnership
Preferred 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 with respect to the
Affiliate Investment Instruments and the Investment Guarantees, (2) the
rights of the Holders of the Partnership Preferred Securities under the
Partnership Guarantee, and (3) the rights of the Holders of the Part-
nership Preferred 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 Partnership Preferred Secu-
rities, 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
Partnership Preferred Securities nor to have any authority concerning
the selection of Partnership Investments. When the Special Representa-
tive 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 Partnership Preferred Securities under the
Partnership Guarantee or their rights to receive Distributions on the
Partnership Preferred Securities, the Special Representative acts as an
agent of the Holders of the Partnership Preferred Securities. In addi-
tion, 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 Part-
nership and shall have no liability for the debts, obligations, or
liabilities of the Partnership.
(2) 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 Repre-
sentative, 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 di-
rectly 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.
(3) If the Special Representative fails to enforce its
rights under the Affiliate Investment Instruments after a holder of
Partnership Preferred Securities has made a written request, such holder
of record of Partnership Preferred Securities may to the fullest extent
permitted by law directly institute a legal proceeding against the
Company to enforce the rights of the Special Representative and the
Partnership under the Affiliate Investment Instruments without first
instituting any legal proceeding against the Special Representative, the
Partnership or any other person or entity. In any event, if a Partner-
ship 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, then a
holder of Partnership Preferred Securities may to the fullest extent
permitted by law on behalf of the Partnership directly institute a pro-
ceeding against such Investment Affiliate with respect to such Affiliate
Investment Instrument for enforcement of payment. In addition, the
Partnership acknowledges that, for so long as the Trust holds any
Partnership Preferred Securities, if the Special Representative fails to
enforce its rights on behalf of the Partnership under the Affiliate
Investment Instruments 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 Affiliates under the
Affiliate Investment Instruments, 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 Partnership Preferred 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 Partnership Preferred Securities
or any holder of Trust Preferred Securities have authority to cause the
General Partner to declare distributions on the Partnership Preferred
Securities.
(4) For purposes of determining whether the Partnership has
deferred payment of Distributions for six (6) 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 Repre-
sentative 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 Partnership Pre-
ferred Securities will be entitled to convene such meeting. The provi-
sions 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 Partnership Preferred 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 Partnership Pre-
ferred 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 pay-
ment of Distributions on the Partnership Preferred 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 adversely affect
the powers, preferences or special rights of the Holders of the Partner-
ship Preferred 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 Partnership Preferred Securi-
ties); 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 Partnership
Preferred 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 effec-
tive except with the approval of Holders of a Majority in Liquidation
Preference of such outstanding Partnership Preferred 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 Partnership
Preferred 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 Trust Preferred 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
Partnership Preferred Securities may, by vote, on behalf of the Holders
of all of the Partnership Preferred Securities, waive any past Partner-
ship Enforcement Event with respect to the Partnership Preferred Securi-
ties and its consequences; provided, that if the underlying Investment
Event of Default:
(A) is not waivable under the related Affiliate Investment Instru
ment, 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 or liquidation preference of the
Affiliate Investment Instruments (a "Super Majority") to be
waived under the related Affiliate Investment Instrument, the
Partnership Enforcement Event may only be waived by the vote
of the Holders of the relevant Super Majority in liquidation
preference of the Partnership Preferred 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 Partner-
ship Preferred 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, (iii) exercise any
right to rescind or annul a declaration that the principal of any
Affiliate Investment Instruments that are debt 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
(v) consent to any amendment, modification or termination of any Affili-
ate Investment Instrument, 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 Part-
nership Preferred Securities; provided, however, that if the Property
Trustee on behalf of the Trust is the Holder of the Partnership
Preferred 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 Trust Pre-
ferred 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 Partnership Preferred Securities without
the approval of a Majority in Liquidation Preference of the Partnership
Preferred Securities. The General Partner shall notify all Holders of
the Partnership Preferred Securities of any notice of an Investment
Event of Default received with respect to any Affiliate Investment
Instrument.
(2) Any required approval of Holders of Partnership Preferred
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 Partnership
Preferred 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 Partnership Preferred 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 Partnership Preferred
Securities will be required for the Partnership to redeem and cancel
Partnership Preferred Securities in accordance with this Agreement.
(3) Notwithstanding that Holders of Partnership Preferred
Securities are entitled to vote or consent under any of the
circumstances described above, any of the Partnership Preferred
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, except for Partnership Preferred
Securities purchased or acquired by the Company or its affiliates in
connection with transactions effected by or for the account of customers
of the Company or any of its subsidiaries or in connection with the dis-
tribution or trading of such Partnership Preferred Securities; provided,
however, that persons (other than affiliates of the Company) to whom the
Company or any of its subsidiaries have pledged Partnership Preferred
Securities may vote or consent with respect to such pledged Partnership
Preferred Securities pursuant to the terms of such pledge.
(4) Holders of the Partnership Preferred Securities shall
have no rights to remove or replace the General Partner.
(5) Holders of Partnership Preferred 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 securities
of Investment Affiliates (the "Affiliate Investment Instruments") and
Eligible Debt Securities. No more than 99% of the Initial Partnership
Proceeds will be used by the Partnership to purchase the Initial Deben-
tures 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 99% of the Ini-
tial Partnership Proceeds to purchase (1) a debt instrument of the
Company (the "Initial Company Debenture") and (2) debt instruments of
one or more eligible controlled affiliates of the Company (such debt in-
struments collectively referred to as the "Initial Affiliate Deben-
tures"). The Initial Company Debenture and the Initial Affiliate Deben-
tures are collectively referred to as the "Initial Debentures". The
Initial Affiliate 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 Inde-
pendent 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 1933 of such Initial Debentures and are no more favor-
able 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
1% of such Initial Partnership Proceeds in Eligible Debt Securities.
The terms of the Initial Debentures will be as set forth in the
Indentures attached hereto as Exhibits A and B.
Section 7.2 REINVESTMENT OF PAYMENTS RECEIVED BY THE
PARTNERSHIP.
(a) The Partnership must at all times invest an amount equal
to at least 1% 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 or (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 (as defined
below).
(c) If the Independent Financial Advisor determines that the
terms of an Affiliate Investment Instrument (as set forth in the Invest-
ment Offer) do not satisfy the Reinvestment Criteria, the Partnership
shall be prohibited from making any investment in such Affiliate Invest-
ment 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 1933 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 Securi-
ties Act of 1933 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; (iii) there shall not have been a de-
fault on any debt obligation of the Investment Affiliate submitting the
Investment Offer that was owned by the Partnership; (iv) no dividend ar-
rearages shall have existed on any preferred stock of the Investment
Affiliate submitting the Investment Offer which was owned by the Part-
nership; and (v) the Investment Affiliate submitting the Investment
Offer shall not be deemed to be an investment company by reason of Sec-
tion 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 Partner-
ship, 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 Partner-
ship, 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 Partnership Preferred 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 Partnership Preferred 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 Partnership Preferred Securities, the Partnership hereby agrees,
at any time while the Property Trustee is the Holder of any Partnership
Preferred 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 con-
nection with the offering, sale and issuance of the Partnership
Preferred 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 Partnership Pre-
ferred Securities (including commissions to the underwriters in connec-
tion 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 ac-
countants, 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 tele-
phone and other telecommunications expenses; and
(b) be primarily and fully liable for any indemnification
obligations arising with respect to this Agreement.
ARTICLE X
POWERS, 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 Representa-
tive). 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 Partnersh-
ip. Persons dealing with the Partnership are entitled to rely conclu-
sively 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 Spe-
cial 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 and the Partner
ship Guarantee;
(iii) to issue Partnership Preferred Securities and to admit
Limited Partners in connection therewith in accordance with this
Agreement;
(iv) to act as registrar and transfer agent for the Partner
ship Preferred Securities or designate an entity to act as regis
trar 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
Partnership Preferred 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, xxxx
xxxxx, resort to legal action, or otherwise adjust claims or
demands of or against the Partnership;
(viii) to deposit, withdraw, invest, pay, retain and dis
tribute the Partnership's funds in a manner consistent with the
provisions of this Agreement;
(ix) to take all action that may be necessary or appropri
ate 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 adversely
affect the interests of the Partnership Preferred 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 Instru
ment that is intended to be classified as debt) to not be treated
as indebtedness for United States federal income tax purposes, or
(iii) the Partnership to be treated as an association, or as a
publicly traded partnership, taxable as a corporation;
(xi) to cause the Partnership to enter into and perform the
Purchase Agreement and the Partnership Preferred Securities Pur
chase Agreement and to purchase Eligible Debt Securities and Affil
iate Investment Instruments, as the case may be, without any fur
ther 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 Partnership Preferred 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.
Section 11.3 OBLIGATIONS AND EXPENSES PAYABLE BY GENERAL
PARTNER. 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 indebted-
ness, obligations or liabilities arise in contract, tort or otherwise
(excluding payment obligations of the Company to Holders of the
Partnership Preferred Securities in such Holders' capacities as Holders
of such Partnership Preferred Securities, such obligations being sepa-
rately 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 Partnership Pre-
ferred 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 tele-
phone 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 or in the Guarantee Agreements, (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 pro-
vided in this Agreement or under the Act, no Limited Partner shall have
the right to demand or receive property other than cash for its re-
spective 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 par-
ticular 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 Partner
ship purpose;
(iv) admit a Person as a Partner, except as expressly pro
vided in this Agreement;
(v) make any advances of funds to the General Partner or its
Affiliates, other than such as represented by the Affiliate Invest
ment 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 Partnership Preferred Securities,
have an order for relief entered with respect to the Partnership or
commence a voluntary case under any applicable bankruptcy, insol
vency 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 busi
ness.
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 gross 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 Partner-
ship 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 gross
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 pro-
ceeding.
(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 Partnership Preferred
Security Holders acknowledge that they intend, for United States federal
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 Partnership Preferred
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 Part-
nership, as required by law, and the Schedule K-1's or any successor or
similar forms or schedules.
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, with-
out the consent of the Holders of the Partnership Preferred 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 Partnership Preferred Securi-
ties or (y) substitutes for the Partnership Preferred Securities other
securities having substantially the same terms as the Partnership
Preferred Securities (the "Partnership Successor Securities") so long as
the Partnership Successor 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
Partnership Preferred Securities continue to be or any Partnership
Successor Securities are or will be listed, upon notification of issu-
ance, on any national securities exchange or other organization on which
the Partnership Preferred Securities, if so listed, are then listed,
(iv) such merger, consolidation, amalgamation or replacement does not
cause the Trust Preferred Securities (or, in the event that the Trust is
liquidated in connection with a Trust Special Event, the Partnership
Preferred Securities (including any Partnership Successor 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 Trust Preferred Securities or the
Holders of the Partnership Preferred Securities (including any Partner-
ship Successor Securities)) in any material respect (other than, in the
case of the Partnership Preferred 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 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 public-
ly traded partnership taxable as a corporation for United States federal
income tax purposes, (C) following such merger, consolidation, amal-
gamation 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 Partnership Preferred Securities and (viii) the Company
guarantees the obligations of such successor entity under the Partner-
ship Successor 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) Partnership Preferred 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 Partnership Preferred
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 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 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 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 Partnership Preferred
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 Partnership Preferred Security Holder or his or her attorney duly
authorized in writing. Each L.P. Certificate surrendered for registra-
tion 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 Partnership
Preferred 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 transfer-
or 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
PARTNERSHIP PREFERRED SECURITY HOLDERS. (a) DEFINITIVE L.P.
CERTIFICATES. Unless and until the Partnership issues a global L.P.
Certificate pursuant to Section 12.4(a), the Partnership shall only
issue definitive L.P. Certificates to the Partnership Preferred 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
Partnership Preferred Securities represented by such L.P. Certificate
for purposes of receiving Distributions and for all other purposes what-
soever (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
Partnership Preferred 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 Partnership Preferred 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 Trust Special 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 Partnership Preferred
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 Trust Special 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 "Defin-
itive L.P. Certificates") have been issued to the Partnership Preferred
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 Partnership Preferred Security Holder and the
sole holder of the L.P. Certificates and shall have no obligation
to the Partnership Preferred Security Owners;
(iii) None of the Partnership, the Trust, the General Part
ner, any Special Representative or any agents of any of the forego
ing 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 benefi
cial ownership interests or for maintaining, supervising or review
ing any records relating to such beneficial ownership interests;
and
(iv) Except as provided in Section 12.4(c) below, the Part
nership Preferred Security Owners will not be entitled to receive
physical delivery of the Partnership Preferred Securities in defin
itive form and will not be considered Holders thereof for any
purpose under this Agreement, and no global L.P. Certificate
representing Partnership Preferred Securities shall be exchange
able, except for another global L.P. Certificate of like denomina
tion and tenor to be registered in the name of DTC or Cede & Co.,
or to a successor Depositary or its nominee. Accordingly, each
Partnership Preferred 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 Partnership Preferred Security Holders is required
under this Agreement, unless and until Definitive L.P. Certificates
shall have been issued to the Partnership Preferred 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 Partnership Preferred Security Holders to the
Clearing Agency, and shall have no obligations to the Partnership
Preferred 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 instruc-
tions, the General Partner shall cause Definitive L.P. Certificates to
be delivered to Partnership Preferred 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 Partnership Preferred 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. Certifi-
xxxxx 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 Partnership Preferred Securities may be listed and is reason-
ably 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 Partnership Preferred Securities for so long as
the Partnership Preferred Securities are held by the Trust or, if the
Trust is liquidated in connection with a Trust Special Event, for so
long as the Partnership Preferred 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 Partnership Pre-
ferred Securities may be presented for registration of transfer or for
exchange ("Registrar") and (ii) an office or agency where Partnership
Preferred Securities may be presented for payment ("Paying Agent"). The
Registrar shall keep a register of the Partnership Preferred 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 Partnership Preferred
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 Partnership Preferred Securities after
such Partnership Preferred 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 Part-
nership 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 busi-
ness 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 accor
dance 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 expira
tion 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 accor
dance with the Delaware Partnership Act;
(iii) the Partnership has redeemed or otherwise purchased all
of the Partnership Preferred Securities;
(iv) upon the entry of a decree of judicial dissolution under
Section 17-802 of the 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 Partnership Preferred 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 liabil-
ities 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
Act):
(i) first, to creditors of the Partnership, including Part
ners 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 Dist
ributions) to Partners;
(ii) second, following any allocations required under Section
4.2(e) of the Agreement, to the Limited Partners, an amount equal
to the aggregate liquidation preference of their Partnership Pre
ferred Securities, plus the amount of Distributions (including any
Compounded Distributions) that are accumulated and unpaid as of the
date of such liquidating distribution; 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 inef-
fective, 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 corpora-
tion, (B) require the Partnership to register under the 1940 Act or (C)
materially adversely affect the rights, privileges or preferences of the
Partnership Preferred 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 Partnership Pre-
ferred Securities to be distributed to Holders of Trust Preferred
Securities, the General Partner may amend this Agreement without the
consent of the Limited Partners to provide for (A) orderly dissemina-
tion, purchase, sale, exchange and replacement of such Partnership Pre-
ferred 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 Partnership Preferred 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:
Ultramar Diamond Shamrock Corporation
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Treasurer
(b) if given to the General Partner, at its mailing address
set forth below:
Ultramar Diamond Shamrock Corporation
0000 Xxxxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxx 00000
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 Partnership
Preferred Security does hereby constitute and appoint the General Part-
ner, and if applicable, any Special Representative appointed pursuant to
Section 6.2(h)(i) of this Agreement, as its true and lawful represen-
tative 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 effec-
tuate, implement and continue the valid and subsisting existence of the
Partnership or to dissolve the Partnership for any other purpose consis-
tent 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:
ULTRAMAR DIAMOND SHAMROCK
CORPORATION,
a Delaware corporation
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
Title: Vice President and
Treasurer
INITIAL LIMITED PARTNER:
Xxxxx Xxxxx
By: /s/ XXXXX XXXXX
Name: Xxxxx Xxxxx
SCHEDULE 1
Initial Capital
Account Balance
Partner at June 25, 1997
Ultramar Diamond Shamrock Corporation $36,386,000
UDS Capital I 206,186,000
ANNEX A
FORM OF L.P. CERTIFICATE
[IF THE PARTNERSHIP PREFERRED SECURITY IS TO BE A GLOBAL
CERTIFICATE INSERT: This Partnership Preferred Security is a Global Cer-
tificate within the meaning of the Partnership Agreement hereinafter re-
ferred to and is registered in the name of The Depository Trust Company
(the "Depositary") or a nominee of the Depositary. This Partnership
Preferred Security is exchangeable for Partnership Preferred 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 Partnership Preferred Security (other
than a transfer of this Partnership Preferred Security as a whole by the
Depositary to a nominee of the Depositary or by a nominee of the Depos-
itary to the Depositary or another nominee of the Depositary) may be
registered except in limited circumstances.
Unless this Partnership Preferred 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
Partnership Preferred 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 OTHER-
WISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.]
PP-1 Aggregate Liquidation
Preference: $206,186,000
Certificate Evidencing Partnership Preferred Securities
of
UDS FUNDING I, L.P.
8.32% Partnership Preferred Securities
(liquidation preference $25 per Partnership Preferred Security)
UDS 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 Re-
stated Declaration of Trust of UDS Capital I, dated as of June 25, 1997
(the "Holder") is the registered owner of 8,247,440 preferred securities
of the Partnership representing limited partner interests in the
Partnership designated the 8.32% Partnership Preferred Securities (liq-
uidation preference $25 per Partnership Preferred Security) (the "Part-
nership Preferred Securities"). The Partnership Preferred Securities
are freely transferable on the books and records of the Partnership, in
person or by a duly authorized attorney, upon surrender of this certifi-
cate duly endorsed and in proper form for transfer. The designation,
rights, powers, privileges, restrictions, preferences and other terms
and provisions of the Partnership Preferred 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 June 25, 1997, 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 Agree-
ment and is entitled to the benefits thereunder. Each Holder of a
Partnership Preferred Security, by acceptance of this Certificate and
each Certificate owner, by acquisition of a beneficial interest in a
Certificate, agrees to treat the Debentures, and any other Affiliate
Investment Instruments that are treated as debt instruments by the
relevant Investment Affiliate and by the Partnership, as indebtedness
for United States federal income tax purposes.
IN WITNESS WHEREOF, the Partnership has executed this certif-
icate this 25th day of June, 1997.
UDS FUNDING I, L.P.
By: ULTRAMAR DIAMOND SHAMROCK CORPORATION,
as General Partner
By:
Name:
Title:
(See reverse for additional terms)
[FORM OF REVERSE OF SECURITY]
Distributions payable on each Partnership Preferred Security will
be fixed at a rate per annum of 8.32% of the stated liquidation
preference of $25 per Partnership Preferred Security. Distributions not
paid on the scheduled payment date will accumulate and compound quar-
terly (to the extent permitted by applicable law) at the rate of 8.32%
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 Partnership
Preferred Securities will only be made to the extent that the Part-
nership has funds legally available for the payment of such distribu-
tions. Amounts available to the Partnership for Distribution to the
holders of the Partnership Preferred Securities will be limited to pay-
ments received by the Partnership from the Company and certain wholly
owned subsidiaries on the Initial Debentures and Affiliate Investment
Instruments or from the Company on the Partnership Guarantee or on the
Eligible Debt Securities. Distributions on the Partnership Preferred
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
Partnership Preferred Securities will be cumulative, will accumulate
from the date of initial issuance and will be payable quarterly in
arrears, on March 31, June 30, September 30 and December 31 of each
year, commencing on June 30, 1997, if, as and when declared by the
General Partner in its sole discretion. If the Trust Preferred Securi-
ties (or, if the Trust is liquidated, the Partnership Preferred Securi-
ties) are in book-entry-only form, Distributions will be payable to the
Holders of record of Partnership Preferred 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 Partnership Pre-
ferred 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 pay-
able on any Partnership Preferred Securities that are not punctually
paid on any Distribution Payment Date will cease to be payable to the
Person in whose name such Partnership Preferred Securities are regis-
tered on the relevant record date, and such Distribution will instead be
payable to the Person in whose name such Partnership Preferred Securi-
ties are registered on the special record date or other specified date
for payment of such defaulted or accumulated Distribution. If the Trust
Preferred Securities (or, if the Trust is liquidated, the Partnership
Preferred 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 Busi-
ness 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 Partnership Preferred Securities shall be redeemable as
provided in the Partnership Agreement.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this
Partnership Preferred Security Certificate to:
(Insert assignee's social security or tax identification number)
(Insert address and zip code of assignee)
and irrevocably appoints
agent to
transfer this Partnership Preferred 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 Partnership
Preferred Security Certificate)
