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EXHIBIT 4(f)
AMENDED AND RESTATED AGREEMENT
OF
LIMITED PARTNERSHIP
OF
TEXTRON FINANCE, L.P.
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TABLE OF CONTENTS
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ARTICLE I
FORMATION AND CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PREFERRED SECURITY HOLDERS; RETURN OF
INITIAL LIMITED PARTNER'S CAPITAL CONTRIBUTION
Section 1.1 Formation and Continuation of the Partnership . . . . . . . . . . . . . . . . . . . . . 2
Section 1.2 Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.3 Business of the Partnership . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.4 Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.5 Registered Agent and Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.6 Principal Place of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Section 1.7 Name and Business Address of General Partner . . . . . . . . . . . . . . . . . . . . . 3
Section 1.8 Admission of Holders of Preferred Securities . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II
DEFINED TERMS
Section 2.1 Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III
CAPITAL CONTRIBUTIONS, REPRESENTATION OF PREFERRED
SECURITY HOLDER'S INTEREST; CAPITAL ACCOUNTS
Section 3.1 Capital Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.2 Preferred Security Holder's Interest Represented by Preferred Securities . . . . . . . 14
Section 3.3 Capital Accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 3.4 Interest on Capital Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Section 3.5 Withdrawal and Return of Capital Contributions . . . . . . . . . . . . . . . . . . . . 15
Section 3.6 Investment Of Capital Contributions . . . . . . . . . . . . . . . . . . . . . . . . . . 15
ARTICLE IV
ALLOCATIONS
Section 4.1 Profits and Losses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Section 4.2 Other Allocation Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Section 4.3 Allocations for Income Tax Purposes . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Section 4.4 Withholding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
ARTICLE V
DIVIDENDS
Section 5.1 Dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
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Section 5.2 Limitations on Distributions . . . . . . . . . . . . . . . . 21
ARTICLE VI
ISSUANCE OF PREFERRED SECURITIES
Section 6.1 General Provisions Regarding Preferred Securities . . . . . . 22
ARTICLE VII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 7.1 Books and Records . . . . . . . . . . . . . . . . . . . . . . 26
Section 7.2 Accounting Method . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE VIII
POWERS, RIGHTS AND DUTIES OF THE LIMITED PARTNER
Section 8.1 Limitations . . . . . . . . . . . . . . . . . . . . . . . . . 27
Section 8.2 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 8.3 Priority . . . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE IX
POWER, RIGHTS AND DUTIES OF THE LIMITED PARTNERS
Section 9.1 Authority . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 9.2 Powers and Duties of General Partner . . . . . . . . . . . . 28
Section 9.3 Liability . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 9.4 Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.5 Fiduciary Duty . . . . . . . . . . . . . . . . . . . . . . . 31
Section 9.6 Indemnification . . . . . . . . . . . . . . . . . . . . . . . 32
Section 9.7 Outside Businesses . . . . . . . . . . . . . . . . . . . . . 35
Section 9.8 Limits on General Partner's Powers . . . . . . . . . . . . . 36
Section 9.9 Tax Matters Partner . . . . . . . . . . . . . . . . . . . . . 37
Section 9.10 Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE X
TRANSFERS OF INTERESTS BY PARTNERS
Section 10.1 Transfer of Interests . . . . . . . . . . . . . . . . . . . . 38
Section 10.2 Transfer of LP Certificates . . . . . . . . . . . . . . . . . 38
Section 10.3 Persons Deemed Preferred Security Holders . . . . . . . . . . 39
Section 10.4 Book Entry Interests . . . . . . . . . . . . . . . . . . . . 39
Section 10.5 Notices to Clearing Agency . . . . . . . . . . . . . . . . . 40
Section 10.6 Appointment of Successor Clearing Agency . . . . . . . . . . 41
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Section 10.7 Definitive LP Certificates; Appointment of Paying Agent(s) . . . . 41
ARTICLE XI
WITHDRAWAL, DISSOLUTION, LIQUIDATION AND
DISTRIBUTION OF ASSETS
Section 11.1 Withdrawal of Partners . . . . . . . . . . . . . . . . . . . . . . 42
Section 11.2 Dissolution of the Partnership . . . . . . . . . . . . . . . . . . 42
Section 11.3 Liquidation . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Section 11.4 Distribution in Liquidation . . . . . . . . . . . . . . . . . . . . 44
Section 11.5 Rights of Limited Partners . . . . . . . . . . . . . . . . . . . . 45
Section 11.6 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 12.2 Amendment of Certificate . . . . . . . . . . . . . . . . . . . . . 46
Section 12.3 Meetings of the Partners . . . . . . . . . . . . . . . . . . . . . 46
ARTICLE XIII
MISCELLANEOUS
Section 13.1 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 13.2 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.3 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.4 Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.5 Pronouns and Number . . . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.6 Captions and Headings . . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.7 Partial Enforceability . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.8 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 13.9 Waiver of Partition . . . . . . . . . . . . . . . . . . . . . . . . 50
Section 13.10 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ANNEX A Form of Preferred Security
Certificate . . . . . . . . . . . . . . . . . . . . . . . . A-1
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AMENDED AND RESTATED AGREEMENT
OF LIMITED PARTNERSHIP
OF
TEXTRON FINANCE, L.P.
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Textron
Finance, L.P. (the "Partnership"), dated as of ___________ __, 1995, among
Textron Inc., a Delaware corporation ("Textron"), as the general partner,
Textron Holdings, Inc., a Delaware corporation, 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, Textron and the Initial Limited Partner entered into an
Agreement of Limited Partnership, dated as of October 2, 1995 (the "Original
Limited Partnership Agreement");
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
October 2, 1995;
WHEREAS, the Partners (as defined herein) desire to continue the
Partnership as a limited partnership under the Act (as defined herein) and to
amend and restate the Original Limited Partnership Agreement in its entirety;
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 Limited Partnership Agreement in its entirety and
hereby agree as follows:
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ARTICLE I
FORMATION AND CONTINUATION OF THE PARTNERSHIP;
ADMISSION OF PREFERRED SECURITY HOLDERS; RETURN OF
INITIAL LIMITED PARTNER'S CAPITAL CONTRIBUTION
Section 1.1 Formation and Continuation of the Partnership.
The Partnership was formed as a limited partnership under the Act
when the General Partner (as defined herein) filed the Certificate (as defined
herein) with the Office of the Secretary of State of the State of Delaware on
October 2, 1995 and the General Partner and the Initial Limited Partner entered
into the Original Limited Partnership Agreement. The parties hereto agree to
continue the Partnership as a limited partnership under the Act. The General
Partner, for itself and as agent for the Limited Partners, shall make every
reasonable effort to assure that all certificates and documents are properly
executed and shall accomplish all filing, recording, publishing and other acts
necessary or appropriate for compliance with all the requirements for the
continuation of the Partnership as a limited partnership under the Act and under
all other laws of the State of Delaware or such other jurisdictions in which the
General Partner determines that the Partnership may conduct business. The
rights, liabilities and duties of the Partners shall be as provided in the Act
except as modified by this Agreement. Where not otherwise specified in this
Agreement, the Act governs the rights and obligations of the parties to this
Agreement.
Section 1.2 Name.
The name of the Partnership is "Textron Finance, L.P.", as such name
may be modified from time to time by the General Partner following written
notice to the Limited Partners. The Partnership business may be conducted under
the name of the Partnership or any other name deemed advisable by the General
Partner.
Section 1.3 Business of the Partnership.
The purposes of the Partnership are (a) to issue partnership
interests in the Partnership, including, without limitation, Preferred
Securities (as defined herein), and to use the proceeds thereof to purchase
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Junior Subordinated Debentures (as defined herein) or other similar debt
instruments of Textron, (b) to invest, at all times, at least 1% of the total
capital contributed to the Partnership by the Partners, and (c) except as
otherwise limited herein, to enter into, make and perform all contracts and
other undertakings, and engage in all activities and transactions as the General
Partner may reasonably deem necessary or advisable to carry out the foregoing
purpose of the Partnership. The partnership may not conduct any other business
or operations except as contemplated by the preceding sentence.
Section 1.4 Term.
The term of the Partnership commenced on the date the Certificate was
filed with the Secretary of State of the State of Delaware and shall continue
until __________, unless dissolved before such date in accordance with the
provisions of this Agreement.
Section 1.5 Registered Agent and Office.
The Partnership's registered agent and office in the State of
Delaware shall be The Corporation Trust Company, Corporation Trust Center, 0000
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000. At any time, the
General Partner may designate another registered agent and/or registered office.
Section 1.6 Principal Place of Business.
The principal place of business of the Partnership shall be at c/o
Textron Inc., 00 Xxxxxxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxx Xxxxxx 00000. Upon ten
days written notice to the Limited Partners, the General Partner may change the
location of the Partnership's principal place of business.
Section 1.7 Name and Business Address of General Partner.
The name and address of the General Partner are as follows:
Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
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Attention:
The General Partner may change its name or business address from time to time,
in which event the General Partner shall promptly notify the Limited Partners of
any such change.
Section 1.8 Admission of Holders of Preferred Securities.
(a) Without necessity for execution of this Agreement, upon receipt
by a Person of an LP Certificate (as defined herein) and payment to the
Partnership of the Purchase Price (as defined herein) for the Preferred
Securities represented by such LP Certificate in connection with the initial
issuance by the Partnership of such Preferred Securities, which 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 of the
Partnership, such Person shall be admitted to the Partnership as a limited
partner of the Partnership and shall become bound by this Agreement.
(b) Following the first admission of a Preferred Security Holder to
the Partnership as a Limited Partner pursuant to paragraph (a) above, the
Initial Limited Partner shall receive the return of its capital contribution
without interest or deduction, but will continue to be a limited partner of the
Partnership. While the Initial Limited Partner shall continue to be a limited
partner of the Partnership, the Initial Limited Partner shall only have such
rights, if any, as are expressly provided to the Initial Limited Partner
pursuant to this Agreement.
(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 the information therein.
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ARTICLE II
DEFINED TERMS
Section 2.1 Definitions.
Unless the context otherwise requires, the terms defined in this
Article II shall, for the purposes of this Agreement, have the meanings herein
specified.
"Act" means the Delaware Revised Uniform Limited Partnership Act, 6
Del. C. Section 17-101, et seq., as amended from time to time.
"Action" has the meaning set forth in Section 6.1(b).
"Affiliate" means, with respect to a specified Person, (a) any Person
directly or indirectly owning, controlling or holding with power to vote 10% or
more of the outstanding voting securities or other ownership interests of the
specified Person, (b) any Person 10% or more of whose outstanding voting
securities or other ownership interests are directly or indirectly owned,
controlled or held with power to vote by the specified Person, (c) any Person
directly or indirectly controlling, controlled by, or under common control with
the specified Person, (d) a partnership in which the specified Person is a
general partner, (e) any officer or director of the specified Person, and (f) if
the specified Person is an individual, any entity of which the specified Person
is an officer, director or general partner.
"Agreement" means this Amended and Restated Agreement of Limited
Partnership of the Partnership, as amended, modified, supplemented or restated
from time to time.
"Book Entry Interests" means a beneficial interest in the LP
Certificates, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 10.4.
"Business Day" means any day other than a day on which banking
institutions in New York City are authorized or required by law to close.
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"Capital Account" has the meaning set forth in Section 3.3.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware on
October 2, 1995, and any and all amendments thereto and restatements thereof.
"Clearing Agency" means an organization registered as a "Clearing
Agency" pursuant to Section 17A of the Exchange Act that is acting as depository
for the Preferred Securities and in whose name shall be registered a global LP
Certificate and which shall undertake to effect book entry transfers and pledges
of the Preferred Securities.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time the Clearing
Agency effects book entry transfers and pledges of securities deposited with the
Clearing Agency.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time, or any corresponding federal tax statute enacted after the date of this
Agreement. A reference to a specific section ((Sec.)) of the Code refers not
only to such specific section but also to any corresponding provision of any
federal tax statute enacted after the date of this Agreement, as such specific
section or corresponding provision is in effect on the date of application of
the provisions of this Agreement containing such reference.
"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.
"Definitive LP Certificates" has the meaning set forth in Section
10.4.
"Dividends" means the distributions of income paid or payable to any
Limited Partner who is a Preferred Security Holder pursuant to the terms of the
Preferred
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Securities held by such Limited Partner, including any interest payable in
respect of arrearages.
"DTC" means The Depository Trust Company, the initial Clearing
Agency.
"Eligible Investment Account" means either (a) a segregated account
with an Eligible Institution or (b) a segre- gated trust account with the
corporate trust department of a depository institution organized under the laws
of the Untied States of America or any one of the states thereof or the District
of Columbia (or any domestic branch of a foreign bank), having corporate trust
powers and acting as trustee for funds deposited in such account, so long as any
of the securities of such depository institution shall have a credit rating from
each Rating Agency in one of its generic rating categories which signifies
investment grade.
"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 AAA or better by S&P's and
Aaa 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's 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.
"Eligible Investment" mean book-entry securities, negotiable
instruments, cash or securities represented by instru- ments in bearer or
registered form which evidence:
(a) direct obligations of, and obligations fully guaranteed as to
timely payment by, the Government of the United States of America;
(b) demand deposits, time deposits or certificates of deposit of any
depository institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision
and examination by federal or
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state banking or depository institution authorities; PROVIDED, HOWEVER,
that at the time of the investment or contractual commitment to invest
therein, the commercial paper or other short-term unsecured debt
obligations (other than such obligations the rating of which is based on
the credit of a Person other than such depository institution or trust
company) thereof shall have a credit rating from each of S&P's, Moody's
and, if rated by Fitch, Fitch in the highest investment category granted
thereby;
(c) commercial paper having, at the time of the investment or
contractual commitment to invest therein, a rating from each of S&P's,
Moody's and, if rated by Fitch, Fitch in the highest investment rating
category granted thereby;
(d) investments in money market funds having a rating from each of
S&P's and Moody's in the highest investment rating category granted
thereby;
(e) demand deposits, time deposits and certificates of deposit which
are fully insured by the FDIC;
(f) bankers' acceptances issued by any depository institution or
trust company referred to in clause (b) above; or
(g) repurchase obligations with respect to any security that is a
direct obligation of, or fully guaranteed by, the Government of the Untied
States of America or any agency or instrumentality thereof, the
obligations of which are backed by the full faith and credit of the United
States of America, in either case entered into with (i) a depository
institution or trust company (acting as principal) described in clause (b)
or (ii) a depository institution or trust company which is an Eligible
Institution and the deposits of which are insured by the FDIC.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time, or any successor legislation.
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"FDIC" means the Federal Deposit Insurance Corporation or any
successor thereto.
"Fiscal Year" means (i) the period commencing upon the formation of
the Partnership and ending on December 31, 1995, and (ii) any subsequent twelve
(12) month period commencing on January 1 and ending on December 31.
"Fitch" means Fitch Investors Service, Inc. or any successor thereto.
"General Partner" means Textron, in its capacity as general partner
of the Partnership, and any additional or successor general partner in the
Partnership admitted as a general partner of the Partnership pursuant to this
Agreement.
"Guarantee" means the Guarantee Agreement dated as of ____________,
1995 of Textron in respect of the Preferred Securities.
"Holders" means, with respect to a series of Preferred Securities,
Preferred Security Holders in whose name one or more LP Certificates
representing Preferred Securities of such series are registered.
"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 employee or agent of the Partnership or its Affiliates.
"Indenture" means the Indenture, dated as of ___________, 1995,
between Textron and The Chase Manhattan Bank, N.A., as Trustee, pursuant to
which the Junior Subordinated Debentures are issued.
"Initial Limited Partner" means Textron Holdings, Inc., a Delaware
corporation.
"Initial Preferred Limited Partners" means the Persons admitted as
Limited Partners pursuant to Section 1.8(a) in connection with the initial
issuance by the Partnership of Preferred Securities.
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"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, losses and distributions of the Partnership.
"Junior Subordinated Debentures" means any series of debentures
issued by Textron under the Indenture.
"Limited Partner" means any Person who is admitted to the Partnership
as a limited partner of the Partnership pursuant to the terms of this Agreement,
including the Preferred Security Holders, in each such Person's capacity as a
limited partner of the Partnership.
"Liquidation Distribution" has the meaning set forth in the
applicable Action relating to a series of Preferred Securities.
"Liquidator" has the meaning set forth in Section 11.3.
"Loss Carried Forward Amount" means as of the first day of any month
for any series of Preferred Securities, an amount equal to the excess of (x) all
Net Loss allocated to the Holders of such series of Preferred Securities from
the date of issuance of such series of Preferred Securities through and
including the day prior to the first day of such month pursuant to Section
4.1(b)(ii) over (y) the amount of Net Income allocated to the Holders of such
series of Preferred Securities pursuant to Section 4.1(a)(ii) with respect to
such period.
"LP Certificate" means a certificate of partnership interest
substantially in the form attached hereto as Annex A evidencing the Preferred
Securities held by a Limited Partner.
"Majority in liquidation preference of the Preferred Securities"
means Holder(s) of a series of Preferred Securities or, as the context may
require, Holder(s) of more than one series of Preferred Securities voting as a
class, who are the record owners of Preferred Securities whose liquidation
preference (including the stated preference amount that would be paid on
redemption
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or maturity, plus accrued and unpaid dividends, whether or not declared, to the
date upon which the voting percentages are determined) represents more than 50%
of the above stated liquidation preference of all Preferred Securities of such
series or, as applicable, multiple series.
"Moody's" means Xxxxx'x Investors Service, Inc. or any successor
thereto.
"Net Income" and "Net Loss", respectively, for any period means the
income and loss, respectively, of the Partnership for such period as
determined in accordance with the method of accounting followed by the
Partnership for federal income tax purposes, including, for all purposes, any
income exempt from tax and any expenditures of the Partnership which are
described in Code Section 705(a)(2)(B); provided, however, that any item
allocated under Section 4.2 shall be excluded from the computation of Net Income
and Net Loss.
"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" means the limited partnership heretofore formed and
continued under and pursuant to this Agreement.
"Partnership Distribution Account" has the meaning specified in
Section 3.6(b) of this Agreement.
"Paying Agent" has the meaning set forth in Section 10.7.
"Person" means any individual, corporation, limited liability
company, association, partnership, trust or other entity.
"Preferred Securities" means the limited partner interests in the
Partnership described in Article VI.
"Preferred Security Holder" has the meaning set forth in Section
10.3.
"Preferred Security Beneficial Owner" means, with respect to a Book
Entry Interest, a Person who is
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the beneficial owner of such Book Entry Interest, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly as a Clearing Agency Participant or as an
indirect participant, in each case in accordance with the rules of such Clearing
Agency).
"Pricing Agreement" means a Pricing Agreement between the Partnership
and Textron relating to the issuance of the Preferred Securities.
"Purchase Price" for any Preferred Security means the amount paid for
such Preferred Security in the initial sale by the Partnership of such Preferred
Security.
"Rating Agencies" means Fitch, Moody's and S&P.
"Securities Act" means the Securities Act of 1933, as amended from
time to time, or any successor legislation.
"Special Representative" means a special representative of the
Partnership and the Holders elected or appointed in accordance with the
applicable Action relating to a series of Preferred Securities.
"S&P" means Standard & Poor's Ratings Group or any successor thereof.
"Tax Matters Partner" means the General Partner designated as such in
Section 9.9 hereof.
"10% in liquidation preference of the Preferred Securities" means
Holder(s) of a series of Preferred Securities or, as the context may require,
Holder(s) of more than one series of Preferred Securities voting as a class, who
are the record owners of Preferred Securities whose liquidation preference
(including the stated preference amount that would be paid on redemption or
maturity, plus accrued and unpaid dividends, whether or not declared, to the
date upon which the voting percentages are determined) represents more than 10%
of the above stated liquidation preference of all Preferred Securities of such
series or, as applicable, multiple series.
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"Textron" has the meaning set forth in the forepart of this
Agreement.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Code, as such regulations may be
amended from time to time (including corresponding provisions of succeeding
regulations).
"Trustee" means The Chase Manhattan Bank, N.A., the Trustee under the
Indenture.
"Underwriting Agreement" means an Underwriting Agreement, among the
Partnership and the underwriters named therein relating to the issuance of the
Preferred Securities.
ARTICLE III
CAPITAL CONTRIBUTIONS, REPRESENTATION OF PREFERRED
SECURITY HOLDER'S INTEREST; CAPITAL ACCOUNTS
Section 3.1 Capital Contributions.
(a) The General Partner has, on or prior to the date hereof,
contributed an aggregate of $3.00 to the capital of the Partnership, which
amount is equal to at least 3% of the total capital contributions to the
Partnership on the date hereof, after taking into account the contribution of
the Initial Limited Partner referred to in paragraph (b) of this Section 3.1.
Subject to Section 4.1(c), the General Partner shall from time to time make such
additional capital contributions as are necessary to maintain its Capital
Account balance at least equal to 3% of the aggregate positive Capital Account
balances of all Partners.
(b) The Initial Limited Partner has, prior to the date hereof,
contributed the amount of $97.00 to the capital of the Partnership which amount
is being returned to the Initial Limited Partner.
(c) With respect to each of the Initial Preferred Limited Partners,
there shall be contributed to the capital of the Partnership the amount of the
Purchase Price for the Preferred Securities acquired by it (such
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amount being such Person's capital contribution to the Partnership).
(d) With respect to each Person (other than the Initial Preferred
Limited Partners) who is issued a Preferred Security by the Partnership after
the date hereof in connection with the initial issuance by the Partnership of
such Preferred Security, there shall be contributed to the capital of the
Partnership an amount equal to the Purchase Price for such Preferred Security
(such amount being such Person's capital contribution to the Partnership).
(e) No Limited Partner shall at any time be required to make any
additional capital contributions to the Partnership.
Section 3.2 Preferred Security Holder's Interest Represented by Preferred
Securities.
A Preferred Security Holder's interest in the Partnership shall be
represented by the Preferred Securities held by such Preferred Security Holder.
Each Preferred Security Holder's respective Preferred Securities shall be set
forth on the books and records of the Partnership. Each Partner, including a
Preferred Security Holder, hereby agrees that its interest in the Partnership
and in its Preferred Securities shall for all purposes be personal property. No
Partner, including a Preferred Security Holder, shall have an interest in
specific Partnership property.
Section 3.3 Capital Accounts.
An individual capital account (a "Capital Account") shall be
established and maintained on the books of the Partnership for each Partner in
compliance with Treasury Regulation (Sec.)1.704-1(b)(2)(iv) and 1.704-2, as
amended. Subject to the preceding sentence, each Capital Account will be
credited with the capital contributions made and the profits allocated to such
Partner (or predecessor in interest) and debited by the distributions made and
losses allocated to such Partner (or predecessor in interest).
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Section 3.4 Interest on Capital Contributions.
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.
No Partner shall be entitled to withdraw any part of such Partner's
capital contribution to the Partnership or to receive any distributions from the
Partnership, except as provided in this Agreement.
Section 3.6 Investment Of Capital Contributions.
The General Partner shall establish and maintain in the name of the
Partnership an Eligible Investment Account bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Partners. On each Closing Date, the General Partner shall deposit from the
proceeds of the aggregate capital contributions received from the Partners an
amount equal to at least 1% of such aggregate capital contributions into the
Eligible Investment Account. On the first Closing Date, the amount deposited by
the General Partner shall equal $_____.
Funds on deposit in the Eligible Investment Account shall be invested
by the General Partner; PROVIDED, HOWEVER, it is understood and agreed that the
General Partner shall not be liable for any loss arising from such investment in
Eligible Investments; PROVIDED FURTHER that none of the funds deposited in the
Eligible Investment Account shall be invested in an Eligible Investment or
Eligible Investments issued by the General Partner or an Affiliate thereof for a
period of five years following the Closing Date. All such Eligible Investments
shall be held by the General Partner for the benefit of the Partnership,
provided, however, that on the day preceding each Dividend Payment Date all
interest and other investment income (net of losses and investment expenses) on
funds on deposit in the Eligible Investment Account shall be deposited into the
Partnership account maintained by the Partnership for receipt of income on the
Subordinated Debentures (the "Partnership Distribution Account") and shall
constitute a portion of the Partnership's Net
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Income eligible for distribution to the Partners. Funds on deposit in the
Eligible Investment Account shall be invested in Eligible Investments that will
mature prior to the next succeeding Dividend Payment Date.
ARTICLE IV
ALLOCATIONS
Section 4.1 Profits and Losses.
Except as provided in Section 4.2,
(a) the Partnership's Net Income for each month shall be allocated as
follows:
(i) First, to the Holders of each series of Preferred
Securities as of the record date in such month for the payment of
Dividends on such series of Preferred Securities in an amount equal to the
excess of (x) all Dividends accrued on such series of Preferred Securities
(in accordance with the Action creating such series) from their date of
issuance through and including the close of such month over (y) the amount
of Net Income allocated to the Holders of such series of Preferred
Securities pursuant to this Section 4.1(a)(i) in all prior months;
provided, however, that (A) as to any series of Preferred Securities as to
which Dividends are not cumulative, no Dividend shall be deemed to accrue
until the Partnership has actually paid (or set aside money to pay) such
Dividend and (B) Dividends as to Preferred Securities that are cumulative
and are not payable at the end of each month shall be deemed to accrue in
a manner consistent with the Action creating such Preferred Securities.
Amounts allocated to all Holders of any series of Preferred Securities
shall be allocated among such Holders in proportion to the number of
Preferred Securities of such series held by such Holders.
(ii) Second, to the Holders of each series of Preferred
Securities up to an amount equal to the Loss Carried Forward Amount for
such series as of the first day of such month. Amounts allocated to all
Holders of any series of Preferred Securities shall be allocated among
such Holders in pro-
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portion to the number of Preferred Securities of such series held by
such Holders.
(iii) Any remaining Net Income shall be allocated to
the General Partner.
(b) The Partnership's Net Loss for any calendar month
shall be allocated as follows:
(i) First, to the General Partner until 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
3% 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, to the Holders of each series of
Preferred Securities in proportion to the aggregate Capital Account
balances of the Holders of such series of Preferred Securities
(calculated taking into account only contributions, distributions and
allocations related to such series), until the Capital Account
balances of such Holders are reduced to zero; provided, however, that
the General Partner shall make appropriate adjustments in these
allocations, in accordance with Section 4.1(c) with respect to any
Preferred Securities as to which Net Income has been allocated with
respect to Dividends that accrued but were not paid. Amounts
allocated to the Holders of any series of Preferred Securities shall
be allocated among such Holders in proportion to the number of
Preferred Securities of such series held by such Holders.
(iii) Any remaining Net Loss shall be allocated to
the General Partner.
(c) The General Partner shall make such changes to the
allocations in Sections 4.1(a) and 4.1(b) in the year of the Partnership's
liquidation as it deems reasonably necessary so that amounts distributed to the
Preferred Security Holders in such year in accordance with Section 11.4(a)(ii)
shall equal their Liquidation Distributions; provided, however, that no
allocation pursuant to this Section 4.1(c) may result in the General
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Partner being required to make any capital contributions pursuant to Section
3.1.
Section 4.2 Other Allocation Provisions.
(a) 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, monthly or other basis, as determined by
the General Partner using any method that is permissible under (Sec.)704 of the
Code and the Treasury Regulations.
(b) The partners are aware of the income tax consequences
of the allocations made by this Article IV and hereby agree to be bound by the
provisions of this Article IV in reporting their shares of Partnership income
and loss for income tax purposes.
(c) Notwithstanding anything to the contrary that may be
expressed or implied in this Article IV, the interest of the General Partner in
each item of income, gain, loss, deduction and credit will be equal to at least
(i) at any time that aggregate capital contributions to the Partnership are
equal to or less than $50,000,000, 1% of each such item and (ii) at any time
that aggregate capital contributions to the Partnership are greater than
$50,000,000, 1% multiplied by a fraction (not exceeding one and not less than
0.2), the numerator of which is $50,000,000 and the denominator of which is the
lesser of the aggregate Capital Account balances of the Capital Accounts of all
Partners at such time and the aggregate capital contributions to the
Partnership of all Partners at such time, of such item.
(d) (i) If during any taxable year, a Partner
unexpectedly receives an adjustment, allocation or distribution
described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5)
or (6), which causes or increases a deficit balance in the Partner's
Adjusted Capital Account (as defined below), there shall be allocated
to the Partner items of Partnership income and gain (consisting of a
pro rata portion of each item of Partnership income, including gross
income and gain for such year) in an amount and manner sufficient to
eliminate such deficit. The foregoing is intended to be a "qualified
income offset" provision as described
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in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be
interpreted and applied in all respects in accordance with that
Regulation.
A Partner's "Adjusted Capital Account" at any time shall equal
the Partner's Capital Account at such time (x) increased by the sum of
(A) the amount of the Partner's share of Partnership minimum gain (as
defined in Treasury Regulations Section 1.704-2(g)(1) and (3)) and (B)
the amount of the Partner's share of the minimum gain attributable to
a "partner nonrecourse debt" (as defined in Treasury Regulations
Section 1.704-2(i)(5)) and (y) decreased by reasonably expected
adjustments, allocations and distributions described in Treasury
Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
(ii) While this Agreement does not provide certain provisions
required by Treasury Regulations Sections 1.704-1(b) and 1.704-2
because those provisions apply to transactions that are not expected
to occur, the Partners intend that the allocations under Section 4.1
conform to Regulations (Sec.)1.704-1(b) and 1.704-2 (including,
without limitation, the minimum gain chargeback, chargeback of partner
nonrecourse debt minimum gain and partner nonrecourse debt provisions
of such Regulation), and the General Partner shall make such changes
in the allocations under Section 4.1 as it believes are reasonably
necessary to meet the requirements of such Treasury Regulations.
(e) Solely for the purpose of adjusting the Capital
Accounts of the Partners, and not for tax purposes, if any property is
distributed in kind to any Partner, the difference between its fair market
value and its book value at the time of distribution shall be treated as gain
or loss recognized by the partnership and allocated pursuant to the provisions
of Section 4.1; provided, however, that Net Income and Net Loss allocated as a
result of the distribution of any series of Junior Subordinated Debentures to
the Holders of any series of Preferred Securities or to the General Partner (or
both) shall be allocated to the Partner receiving the Junior Subordinated
Debentures in proportion to the amount of Junior Subordinated Debentures
distributed to them. For this purpose, the fair market value of any property
shall
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be determined by the General Partner in its sole discretion, provided, however,
that the value of any Subordinated Debenture shall at all times be treated as
equal to the value of any Preferred Security if the interest rate on and
principal amount of the Subordinated Debenture is the same as the Dividend
payable on and the liquidation preference with respect to the Preferred
Security.
(f) Any income, gain or loss resulting from purchase,
ownership or disposition of Eligible Investments shall be allocated entirely to
the General Partner.
Section 4.3 Allocations for Income Tax Purposes.
The income, gains, losses, deductions and credits of the
Partnership shall be allocated in the same manner as the items entering into
the computation of Net Income and Net Loss were allocated under Sections 4.1
and 4.2; provided, however, that solely for federal, state and local income and
franchise tax purposes and not for book or Capital Account purposes, income,
gain, loss and deduction with respect to any property properly carried on the
Partnership's books at a value other than the tax basis of such property shall
be allocated in a manner determined in the General Partner's discretion, so as
to take into account (consistently with Code Section 704(c) principles) the
difference between such property's book value and its tax basis.
Section 4.4 Withholding.
The partnership shall comply with withholding requirements
under federal, state and local law and shall remit amounts withheld to and file
required forms with applicable jurisdictions. To the extent that the
Partnership is required to withhold and pay over any amounts to such
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 overwithholding,
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
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to assist it in determining the extent of, and in fulfilling, its withholding
obligations.
ARTICLE V
DIVIDENDS
Section 5.1 Dividends.
(a) Limited Partners shall receive periodic Dividends, if
any, redemption payments and liquidation distributions in accordance with the
applicable terms of the Preferred Securities. The General Partner shall
determine whether and when Dividends shall be payable, and shall give notice of
any determination to pay Dividends ("Declaration") to all Limited Partners of
record as of the record date for such payments of Dividends; provided, however,
that if and to the extent Textron does make interest payments on the Junior
Subordinated Debentures, the General Partner shall, to the extent funds are
legally available therefor, declare dividends on the Preferred Securities.
Subject to the rights of the Preferred Securities, all remaining cash shall be
distributed to the General Partner at such time as the General Partner shall
determine.
(b) Net interest and investment income from funds on
deposit in the Eligible Investment Account that is transferred into the
Partnership Distribution Account shall be considered funds available for the
payment of Dividends; provided, however, that the principal amount of Eligible
Investments shall not be available as distributions as Dividends or otherwise
except in connection with a liquidating distribution pursuant to Section 11.4
of this Agreement.
Section 5.2 Limitations on Distributions.
Notwithstanding any provision to the contrary contained in
this Agreement, the Partnership shall not make a distribution to any Partner on
account of its interest in the Partnership if such distribution would violate
Section 17-607 of the Act or other applicable law.
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ARTICLE VI
ISSUANCE OF PREFERRED SECURITIES
Section 6.1 General Provisions Regarding Preferred Securities.
(a) The aggregate number of Preferred Securities which
the Partnership shall have authority to issue is unlimited.
(b) The General Partner on behalf of the Partnership is
authorized to issue from time to time limited partner interests in the
Partnership (the "Preferred Securities") in one or more series having such
designations, rights, privileges, restrictions, preferences and other terms
and provisions as may from time to time be established in a written action or
actions (each, an "Action") of the General Partner providing for the issue of
such series. In connection with the foregoing, the General Partner is
expressly authorized, prior to issuance, to set forth in an Action or Actions
providing for the issue of such series, the following:
(i) the distinctive designation of such series which shall
distinguish it from other series;
(ii) the number of Preferred Securities included in such
series which number may be increased or decreased from time to time
unless otherwise provided by the General Partner in creating the
series;
(iii) the annual Dividend rate (or method of determining such
rate) for Preferred Securities of such series and the date or dates
upon which such Dividends shall be payable, provided, however,
Dividends on any series of Preferred Securities shall be payable, if
and to the extent determined to be so payable by the General Partner,
on a monthly basis to Holders of such series of Preferred Securities
as of a record date in the month during which such series of Preferred
Securities are outstanding;
(iv) whether Dividends on the Preferred Securities of such
series shall be cumulative, and, in the case of Preferred Securities
of any series having cumulative Dividend rights, the date or dates
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or method of determining the date or dates from which Dividends on the
Preferred Securities of such series shall be cumulative;
(v) the amount or amounts which shall be paid out of the
assets of the Partnership to the Holders of the Preferred Securities
of such series upon voluntary or involuntary dissolution, winding up
or liquidation of the Partnership;
(vi) the price or prices at which, the period or periods
within which, and the terms and conditions upon which, the Preferred
Securities of such series may be redeemed or purchased, in whole or in
part, at the option of the Partnership or the General Partner;
(vii) the obligation, if any, of the Partnership to purchase
or redeem Preferred Securities of such series and the price or prices
at which, the period or periods within which, and the terms and
conditions upon which, the Preferred Securities of such series shall
be purchased or redeemed, in whole or in part, pursuant to such
obligation;
(viii) the voting rights, if any, of the Preferred Securities
of such series in addition to those required by law, including the
number of votes per Preferred Security and any requirement for the
approval by the Holders of Preferred Securities, or of the Preferred
Securities of one or more series, or of both, as a condition to
specified action or amendments to this Agreement; and
(ix) any other relative rights, powers, preferences or
limitations of the Preferred Securities of the series not inconsistent
with this Agreement or with applicable law.
(c) In connection with the foregoing and without limiting
the generality thereof, the General Partner is hereby expressly authorized,
without the vote or approval of any Preferred Security Holder, (i) to take any
Action to create under the provisions of this Agreement a series of Preferred
Securities that was not previously outstanding and (ii) to admit Preferred
Security Holders as limited partners of the Partnership. Without
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the vote or approval of any Preferred Security Holder, the General Partner may
execute, swear to, acknowledge, deliver, file and record whatever documents may
be required in connection with the issue from time to time of Preferred
Securities in one or more series as shall be necessary, convenient or desirable
to reflect the issue of such series. The General Partner shall do all things
it deems to be appropriate or necessary to comply with the Act and is
authorized and directed to do all things it deems to be necessary or
permissible in connection with any future issuance, including compliance with
any statute, rule, regulation or guideline of any federal, state or other
governmental agency or any securities exchange.
(d) Any action or actions taken by the General Partner
pursuant to the provisions of this Section 6.1 shall be deemed an amendment and
supplement to and part of this Agreement.
(e) The payment of Dividends and payments on dissolution
of the Partnership or on redemption in respect of Preferred Securities shall be
guaranteed by Textron pursuant to and to the extent set forth in the Guarantee.
The Preferred Security Holders hereby authorize the General Partner to hold the
Guarantee on behalf of the Preferred Security Holders. In the event of the
appointment of a Special Representative to, among other things, enforce the
Guarantee, the Special Representative may take possession of the Guarantee for
such purpose. If no Special Representative has been appointed to enforce the
Guarantee, the General Partner has the right to enforce the Guarantee on behalf
of the Preferred Security Holders. The Holders of not less than a Majority in
liquidation preference of the Preferred Securities have the right to direct the
time, method and place of conducting any proceeding for any remedy available in
respect of the Guarantee including the giving of directions to the General
Partner or the Special Representative, as the case may be. If the General
Partner or the Special Representative fails to enforce the Guarantee as above
provided, a Preferred Security Holder may institute a legal proceeding directly
against the Guarantor to enforce its rights under the Guarantee, without first
instituting a legal proceeding against the Partnership or any other Person.
The Preferred Security Holders, by acceptance of such Preferred Securities,
thereby agree to
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the subordination provisions and other terms of the Guarantee.
(f) The proceeds received by the Partnership from the
issuance of any series of Preferred Securities, together with the proceeds of
any capital contribution of the General Partner made at the time of such
issuance, but less any amounts deposited by the General Partner in the Eligible
Investment Account pursuant to Section 3,6(a),shall be invested by the
Partnership in Junior Subordinated Debentures with (A) an aggregate principal
amount equal to such aggregate proceeds and (B) an interest rate equal to the
Dividend rate of such series of Preferred Securities.
(g) So long as any series of Junior Subordinated
Debentures are held by the Partnership, the General Partner shall not (i)
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee with respect to such series, (ii) waive any past default which is
waivable under Section 513 of the Indenture, (iii) exercise any right to
rescind or annul a declaration that the principal of all the Junior
Subordinated Debentures of such series shall be due and payable or (iv) consent
to any amendment, modification or termination of the Indenture without, in each
case, obtaining the prior approval of the Holders of at least a Majority in
liquidation preference of all series of Preferred Securities who could be
affected thereby if their Preferred Securities were to be exchanged for Junior
Subordinated Debentures, acting as a single class; provided, however, that
where a consent under the Indenture would require the consent of each holder of
Junior Subordinated Debentures affected thereby, no such consent shall be given
by the General Partner without the prior consent of each Holder of all series
of Preferred Securities affected thereby if its Preferred Securities were to be
exchanged for Junior Subordinated Debentures. The General Partner shall not
revoke any action previously authorized or approved by a vote of the Holders of
any series of Preferred Securities who would be affected thereby if their
Preferred Securities were to be exchanged for Junior Subordinated Debentures.
The General Partner shall notify all Holders of any series of Preferred
Securities of any notice of default received
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from the Trustee with respect to the related series of Junior Subordinated
Debentures.
(h) The Partnership may not issue any limited partner
interests in the Partnership (including, without limitation, any series of
Preferred Securities), unless such series of Preferred Securities ranks pari
passu with each other series of Preferred Securities then outstanding as
regards (A) participation in profits and Dividends of the Partnership and (B)
participation in the assets of the Partnership. All Preferred Securities shall
rank senior to the General Partner's Interest in respect of the right to
receive Dividends and the right to receive payments out of the assets of the
Partnership upon voluntary or involuntary dissolution, winding up or
termination of the Partnership. All Preferred Securities redeemed, purchased
or otherwise acquired by the Partnership (including Preferred Securities
surrendered for conversion or exchange) shall be canceled.
(i) No Holder of a Preferred Security 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 issue of Preferred
Securities of any class whatsoever, or of securities convertible into any
Preferred Securities of any class whatsoever, whether now or hereafter
authorized and whether issued for cash or other consideration or by way of a
Dividend.
ARTICLE VII
BOOKS OF ACCOUNT, RECORDS AND REPORTS
Section 7.1 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 business as are usually entered into records and books of account
maintained by Persons engaged in businesses of a like character, including a
Capital Account for each Partner. The books and records of the Partnership,
together with a copy of this agreement and a certified copy of the Certificate,
shall at all times be maintained at the principal office of the Partnership and
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shall be open to the inspection and examination of any Limited Partner or its
duly authorized representative for any purpose reasonably related to its
Interest during reasonable business hours.
(b) Notwithstanding any other provision of this
Agreement, the General Partner may, to the maximum extent permitted by
applicable law, keep confidential from the Partners any information the
disclosure of which the General Partner reasonably believes is not in the
best interests of the Partnership or is adverse to the interests of the
Partnership or which the Partnership or the General Partner is required by law
or by an agreement with any Person to keep confidential.
(c) Within three months 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 such Fiscal Year for federal income tax purposes.
Section 7.2 Accounting Method.
For both financial and tax reporting purposes and for purposes
of determining profits and losses, the books and records of the Partnership
shall be kept on the accrual method of accounting applied in a consistent
manner and shall reflect all Partnership transactions and be appropriate and
adequate for the Partnership's business.
ARTICLE VIII
POWERS, RIGHTS AND DUTIES OF THE LIMITED PARTNER
Section 8.1 Limitations.
The Limited Partners shall not participate in the management
or control of the Partnership's business, property or other assets nor shall
the Limited Partners transact any business for the Partnership, nor shall the
Limited Partners have the power to act for or bind the Partnership, said powers
being vested solely and exclusively in the General Partner. The Limited
Partners shall have such rights as are set forth herein, including any Action,
and as are set forth in the Guarantee and the
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Indenture. 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.
Section 8.2 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 8.3 Priority.
No Limited Partner shall have priority over any other Limited
Partner as to Partnership allocations or distributions.
ARTICLE IX
POWER, RIGHTS AND DUTIES OF THE LIMITED PARTNERS
Section 9.1 Authority.
Subject to the limitations provided in this Agreement, 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 business of the Partnership. Any action taken by the General
Partner shall constitute the act of and serve to bind the Partnership. In
dealing with the General Partner acting on behalf of the Partnership, no Person
shall be required to inquire into the authority of the General Partner to bind
the Partnership. Persons dealing with the Partnership are entitled to rely
conclusively on the power and authority of the General Partner as set forth in
this Agreement.
Section 9.2 Powers and Duties of General Partner.
Except as otherwise specifically provided herein, 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 business to do any and all other acts and
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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:
(a) to secure the necessary goods and services required in
performing the General Partner's duties for the Partnership;
(b) to exercise all powers of the Partnership, on behalf of
the Partnership, in connection with enforcing the Partnership's rights
and interest under the Junior Subordinated Debentures and the
Guarantee;
(c) to issue Preferred Securities, and series thereof, in
accordance with this Agreement;
(d) 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 Dividends and voting rights and to make
determinations as to the payment of Dividends, and make all other
required payments to Preferred Security Holders and to the General
Partner as the Partnership's paying agent;
(e) to open, maintain and close bank accounts and to draw
checks and other orders for the payment of money;
(f) to bring or defend, pay, collect, compromise, arbitrate,
resort to legal action, or otherwise adjust claims or demands of or
against the Partnership;
(g) to deposit, withdraw, invest, pay, retain and distribute
the Partnership's funds in a manner consistent with the provisions of
this Agreement;
(h) to take all action which may be necessary or appropriate
for the preservation and the continuation of the Partnership's valid
existence, rights, franchises and privileges as a limited partnership
under the laws of the State of Delaware and of each other jurisdiction
in which such existence is necessary to protect the limited liability
of the Limited
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Partners or to enable the Partnership to conduct the business in which
it is engaged;
(i) to take all action not inconsistent with applicable law,
the Certificate or this Agreement as long as such action does not
adversely affect the interests of the Preferred Security Holders,
necessary to conduct its affairs and to operate the Partnership in
such a way that the Partnership would not be deemed an "investment
company" required to be registered under the Investment Company Act of
1940 or taxed as a corporation for federal income tax purposes and so
that the Junior Subordinated Debentures will be treated as
indebtedness of Textron for federal income tax purposes;
(j) to cause the Partnership to enter into and perform from
time to time, on behalf of the Partnership, one or more Underwriting
Agreements and one or more Pricing Agreements providing for the sale
of Preferred Securities and to cause the Partnership to purchase the
Junior Subordinated Debentures without any further act, vote or
approval of any Partner; and
(k) 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, desirable,
convenient or incidental to the foregoing.
Section 9.3 Liability.
Except as expressly set forth in this Agreement, (a) the
General Partner shall not be personally liable for the return of any portion of
the capital contributions (or any return thereon) of the Limited Partners; (b)
the return of such capital contributions (or any return thereon) shall be made
solely from assets of the Partnership; and (c) the General Partner shall not be
required to pay to the Partnership or to any Limited Partner any deficit in any
Limited Partner's Capital Account upon dissolution or otherwise.
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Section 9.4 Exculpation.
(a) No Indemnified Person shall be liable, responsible or
accountable in damages or otherwise to the Partnership or any Covered Person
for any loss, damage or claim incurred by reason of any act or omission
performed or omitted by such Indemnified Person in good faith on behalf of the
Partnership and in a manner such Indemnified Person reasonably believed to be
within the scope of the authority conferred on such Indemnified Person by this
Agreement or by law, except that an Indemnified Person shall be liable for any
such loss, damage or claim incurred by reason of such Indemnified Person's
gross negligence or willful misconduct with respect to such acts or omissions.
(b) An 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 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 9.5 Fiduciary Duty.
(a) To the extent that, at law or in equity, an
Indemnified Person has duties (including fiduciary duties) and liabilities
relating thereto to the Partnership or to any other Covered Person, an
Indemnified Person acting under this Agreement shall not be liable to the
Partnership or to any other 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 an Indemnified Person
otherwise existing at law or in equity, are agreed by the parties hereto to
replace such other duties and liabilities of such Indemnified Person.
(b) Unless otherwise expressly provided herein, (i)
whenever a conflict of interest exists or arises
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between Covered Persons, or (ii) whenever this Agreement or any other agreement
contemplated herein or therein provides that an indemnified Person shall act in
a manner that is, or provides terms that are, fair and reasonable to the
Partnership or any Partner, the 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 Indemnified Person, the resolution, action or term
so made, taken or provided by the Indemnified Person shall not constitute a
breach of this Agreement or any other agreement contemplated herein or of any
duty or obligation of the Indemnified Person at law or in equity or otherwise.
(c) Whenever in this Agreement an Indemnified Person is
permitted or required to make a decision (i) in its "discretion" or under a
grant of similar authority, the Indemnified Person shall be entitled to
consider such interests and factors as it desires, including its own interests,
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 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 9.6 Indemnification.
(a) The Partnership shall indemnify, to the full extent permitted
by law, any Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Partnership) by reason of the fact
that he is or was an Indemnified Person against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or
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not opposed to the best interests of the Partnership, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a presumption that the Indemnified
Person did not act in good faith and in a manner which he reasonably believed
to be in or not opposed to the best interests of the Partnership, and, with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
(b) The Partnership shall indemnify, to the full extent permitted
by law, any Indemnified Person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action or suit by or in
the right of the Partnership to procure a judgment in its favor by reason of
the fact that he is or was an Indemnified Person against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection with the
defense or settlement of such action or suit if he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Partnership and except that no such indemnification shall be made in
respect of any claim, issue or matter as to which such Indemnified Person shall
have been adjudged to be liable to the Partnership unless and only to the
extent that the Court of Chancery of Delaware or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses
which such Court of Chancery or such other court shall deem proper.
(c) To the extent that a Indemnified Person shall be successful on
the merits or otherwise (including dismissal of an action without prejudice or
the settlement of an action without admission of liability) in defense of any
action, suit or proceeding referred to in paragraphs (i) and (ii) of this
Section 9.6, or in defense of any claim, issue or matter therein, he shall be
indemnified, to the full extent permitted by law, against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith.
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(d) Any indemnification under paragraphs (a) and (b) of this
Section 9.6 (unless ordered by a court) shall be made by the Partnership only
as authorized in the specific case upon a determination that indemnification of
the Indemnified Person is proper in the circumstances because he has met the
applicable standard of conduct set forth in paragraphs (i) and (ii). Such
determination shall be made (1) by the General Partner or (2) by independent
legal counsel in a written opinion.
(e) Expenses (including attorneys' fees) incurred by an
Indemnified Person in defending a civil, criminal, administrative or
investigative action, suit or proceeding referred to in paragraphs (a) and (b)
of this Section 9.6 shall be paid by the Partnership in advance of the final
disposition of such action, suit or proceeding upon receipt of an undertaking
by or on behalf of such Indemnified Person to repay such amount if it shall
ultimately be determined that he is not entitled to be indemni- fied by the
Partnership as authorized in this Section 9.6. Notwithstanding the foregoing,
no advance shall be made by the Partnership if a determination is reasonably
and promptly made by the General Partner or by independent legal counsel in a
written opinion, that, based upon the facts known to the General Partner or
counsel at the time such determination is made, such Indemnified Person acted
in bad faith or in a manner that such person did not believe to be in or not
opposed to the best interests of the Partnership, or, with respect to any
criminal proceeding, that such Indemnified Person believed or had reasonable
cause to believe his conduct was unlawful. In no event shall any advance be
made in instances where the General Partner or independent legal counsel
reasonably determine that such person deliberately breached his duty to the
Partnership, the General Partner or the Preferred Security Holders.
(f) The indemnification and advancement of expenses provided by,
or granted pursuant to, the other paragraphs of this Section 9.6 shall not be
deemed exclusive of any other rights to which those seeking indemnification and
advancement of expenses may be entitled under any agreement, vote of Preferred
Security Holders of the Partnership or otherwise, both as to action in his
official capacity and as to action in another capacity while holding such
office. All rights to indemnification under this Section 9.6 shall be deemed
to be provided by a con-
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tract between the Partnership and each Indemnified Person who serves in such
capacity at any time while this Section 9.6 is in effect. Any repeal or
modification of this Section 9.6 shall not affect any rights or obligations
then existing.
(g) The Partnership may purchase and maintain insurance on behalf
of any person who is or was a Indemnified Person against any liability asserted
against him and incurred by him in any such capacity, or arising out of his
status as such, whether or not the Partnership would have the power to
indemnify him against such liability under the provisions of this Section 9.6.
(h) For purposes of this Section 9.6, references to "the
Partnership" shall include, in addition to the resulting or surviving entity,
any constituent entity (including any constituent of a constituent) absorbed in
a consolidation or merger, so that any person who is or was a director, officer
or employee of such constituent entity, or is or was serving at the request of
such constituent entity as a director, officer, employee or agent of another
entity, shall stand in the same position under the provisions of this Section
9.6 with respect to the resulting or surviving entity as he would have with
respect to such constituent entity if its separate existence had continued.
(i) The indemnification and advancement of expenses provided by,
or granted pursuant to, this Section 9.6 shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
Indemnified Person and shall inure to the benefit of the heirs, executors and
administrators of such a person.
Section 9.7 Outside Businesses.
Any Covered Person may engage in or possess an interest in
other business ventures of any nature or description, independently or with
others, similar or dissimilar to the business 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 business of
the Partnership, shall not be deemed wrongful or improper. No Covered Person
shall be obli-
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gated to present any particular investment or other 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 Covered Person
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 or other
opportunity.
Section 9.8 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
(a) acquire any assets other than as expressly provided
herein;
(b) possess Partnership property for other than a
Partnership purpose;
(c) admit a Person as a partner of the Partnership,
except as expressly provided in this Agreement;
(d) make any loans to the General Partner or its
Affiliates, other than loans represented by the Junior Subordinated
Debentures or other similar debt instruments of Textron;
(e) perform any act that would subject any Limited
Partner to liability as a general partner in any jurisdiction;
(f) engage in any activity that is not consistent with
the purposes of the Partnership, as set forth in Section 1.3;
(g) confess a judgment against the Partnership;
(h) without the written consent of a Majority in
liquidation preference of the outstanding Preferred Securities, have
an order for relief entered with respect to the Partnership or
commence a voluntary case under any applicable bankruptcy, insolvency
or other similar law now or hereafter in effect,
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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; it being understood
that nothing in this paragraph (h) is to affect the ability of the
Partnership to dissolve pursuant to this Agreement; or
(i) subject to Section 1.3, borrow money or become liable
for the borrowings of any third party or engage in any financial or
other trade or business.
Section 9.9 Tax Matters Partner.
(a) For purposes of Code Section 6231(a)(7), the "Tax
Matters Partner" shall be Textron as long as it remains the general partner of
the Partnership. The Tax Matters Partner shall keep the Limited Partners fully
informed of any inquiry, examination or proceeding.
(b) The General Partner shall not make an election in
accordance with (Sec.)754 of the Code.
(c) The General Partner and the Preferred Security
Holders acknowledge that they intend, for U.S. federal income tax purposes,
that the Partnership shall be treated as a partnership and that the General
Partner and the Preferred Security Holders shall be treated as partners of the
Partnership for such purposes.
Section 9.10 Expenses.
(a) The General Partner shall pay for all, and the
Partnership shall not be obligated to pay, directly or indirectly, for any,
costs and expenses of the Partnership (including, but not limited to, costs and
expenses relating to the organization of, and offering of Limited partner
interests in, the Partnership and costs and expenses relating to the operation
of the Partnership, including without limitation, costs and expenses of
accountants, attorneys, statistical or bookkeeping services and computing or
accounting equipment, paying agent(s) or registrar(s), transfer agent(s),
duplicating, travel and telephone and costs and expenses incurred in
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connection with the acquisition, financing, and disposition of Partnership
assets).
(b) The General Partner will pay any and all taxes (other
than United States withholding taxes) and all liabilities, costs and expenses
with respect to such taxes of the Partnership.
ARTICLE X
TRANSFERS OF INTERESTS BY PARTNERS
Section 10.1 Transfer of Interests.
(a) Preferred Securities shall be freely transferable by
a Preferred Security Holder.
(b) The General Partner may not assign its interest in
the Partnership in whole or in part under any circumstances except to a
successor of Textron as permitted under the Indenture. The admission of such
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 such successor has been admitted as a
general partner in the Partnership. If the General Partner assigns its entire
Interest to a successor of Textron as permitted under the Indenture, the
General Partner shall cease to be a general partner in the Partnership
simultaneously with the admission of the successor as a general partner in the
Partnership. Any such successor general partner in the Partnership is hereby
authorized to and shall continue the business of the Partnership without
dissolution.
(c) 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 10.2 Transfer of LP Certificates.
The General Partner shall provide for the registration of LP
Certificates and of transfers of LP Certificates. Upon surrender for
registration of transfer of any LP Certificate, the General Partner shall
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cause one or more new LP Certificates to be issued in the name of the
designated transferee or transferees. Every LP Certificate surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the General Partner duly executed by the
Preferred Security Holder or such Holder's attorney duly authorized in writing.
Each LP Certificate surrendered for registration of transfer shall be canceled
by the General Partner. A transferee of an LP Certificate shall be admitted to
the Partnership as a Limited Partner and shall be entitled to the rights and
subject to the obligations of a Preferred Security Holder hereunder upon the
receipt by such transferee of an LP Certificate. By acceptance of an LP
Certificate, each transferee shall be deemed to have requested admission as a
Limited Partner and to have agreed to be bound by this Agreement. The
transferor of an LP Certificate, in whole, shall cease to be a Limited Partner
at the time that the transferee of such LP Certificate is admitted to the
Partnership as a Limited Partner in accordance with this Section 10.2.
Section 10.3 Persons Deemed Preferred Security Holders.
The Partnership may treat the Person in whose name any LP
Certificate shall be registered on the books and records of the Partnership as
the sole holder of such LP Certificate and of the Preferred Securities
represented by such L.P Certificate (the "Preferred Security Holder") for
purposes of receiving Dividends and for all other purposes whatsoever and,
accordingly, shall not be bound to recognize any equitable or other claim to or
interest in such LP Certificate or in the Preferred Securities represented by
such LP Certificate on the part of any other Person, whether or not the
Partnership shall have actual or other notice thereof.
Section 10.4 Book Entry Interests.
Unless otherwise specified in the Action with respect to any
series of Preferred Securities, the LP Certificates, on original issuance, will
be issued in the form of a global LP Certificate or LP Certificates
representing the Book Entry Interests, to be delivered to DTC, the initial
Clearing Agency, by, or on behalf of, the Partnership. Such LP Certificate or
LP Certificates shall initially be registered on the books and records of
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the Partnership in the name of Cede & Co., the nominee of DTC, and no Preferred
Security Beneficial Owner will receive a definitive LP Certificate representing
such Preferred Security Beneficial Owner's interests in such LP Certificate,
except as provided in Section 10.7. Unless and until definitive, fully
registered LP Certificates (the "Definitive LP Certificates") have been issued
to the Preferred Security Beneficial Owners pursuant to Section 10.7:
(i) The provisions of this Section shall be in full force and
effect;
(ii) The Partnership and the General Partner shall be
entitled to deal with the Clearing Agency for all purposes of this
Agreement (including the payment of Dividends on the LP Certificates
and receiving approvals, votes or consents hereunder) as the Preferred
Security Holder and the sole holder of the LP Certificates and shall
have no obligation to the Preferred Security Beneficial Owners;
(iii) To the extent that the provisions of this Section
conflict with any other provisions of this Agreement, the provisions
of this Section shall control; and
(iv) The rights of the Preferred Security Beneficial Owners
shall be exercised only through the Clearing Agency and shall be
limited to those established by law and agreements between such
Preferred Security Beneficial Owners and the Clearing Agency and/or
the Clearing Agency Participants. DTC will make book entry transfers
among the Clearing Agency Participants and receive and transmit
payments of Dividends on the LP Certificates to such Clearing Agency
Participants.
Section 10.5 Notices to Clearing Agency.
Whenever a notice or other communication to the Preferred
Security Holders is required under this Agreement, unless and until Definitive
LP Certificates shall have been issued to the Preferred Security Beneficial
Owners pursuant to Section 10.7, the General Partner shall give all such
notices and communications specified herein to be given to the Preferred
Security Holders to
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the Clearing Agency, and shall have no obligations to the Preferred Security
Beneficial Owners.
Section 10.6 Appointment of Successor Clearing Agency.
If any Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities, the General
Partner may, in its sole discretion, appoint a successor Clearing Agency with
respect to the Preferred Securities.
Section 10.7 Definitive LP Certificates; Appointment of Paying Agent(s).
If (i) a Clearing Agency elects to discontinue its services as
securities depository with respect to the Preferred Securities and a successor
Clearing Agency is not appointed within 90 days after such discontinuance
pursuant to Section 10.6 or (ii) the Partnership elects to terminate the book
entry system through the Clearing Agency, then (a) Definitive LP Certificates
shall be prepared by the Partnership and (b) the General Partner shall
authorize one or more Persons (each, a "Paying Agent") to pay Dividends,
redemption payments or liquidation payments on behalf of the Partnership with
respect to the Preferred Securities. Upon surrender of the global LP
Certificate or LP Certificates representing the Book Entry Interests by the
Clearing Agency, accompanied by registration instructions, the General Partner
shall cause Definitive LP Certificates to be delivered to Preferred Security
Beneficial 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 each of them may conclusively rely on, and
shall be protected in relying on, such instructions. Any Person receiving a
Definitive LP Certificate in accordance with this Article X shall be admitted
to the Partnership as a Limited Partner upon receipt of such Definitive LP
Certificate and shall be registered on the books and records of the Partnership
as a 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 10.7 at the time that at least one additional Person is admitted
to the Partnership as a Limited Partner in accordance with this Section 10.7.
The Definitive LP Certificates shall be printed, lithographed or en-
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graved or may be produced in any other manner as is reasonably acceptable to
the General Partner, as evidenced by its execution thereof.
ARTICLE XI
WITHDRAWAL, DISSOLUTION, LIQUIDATION AND
DISTRIBUTION OF ASSETS
Section 11.1 Withdrawal of Partners.
Subject to the further provisions of this Section 11.1 and
except as provided in Article X, no Partner shall at any time withdraw from the
Partnership. Any Partner withdrawing in contravention of this Section 11.1
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 withdrawal. No permitted transfer of all
or any portion of a Partner's Interest in the Partnership, in accordance with
Article X shall constitute a withdrawal in violation of this Section 11.1.
Further, the withdrawal of a Holder in connection with the redemption of its
entire Interest in the Partnership, in accordance with the terms hereof or of
an Action, shall not constitute a violation of this Section 11.1.
Section 11.2 Dissolution of the Partnership.
(a) The Partnership shall not be dissolved by the
admission of additional or successor 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
Partner- ship to be dissolved and its affairs wound up. To the fullest extent
permitted by applicable law, upon the occurrence of such event, the General
Partner may, without any further act, vote or approval of any Partner, admit
any Person to the Partnership as an additional or substitute limited partner in
the Partnership, which admission shall be effective as of the date of the
occurrence of such event, and the business of the Partnership shall be
continued without dissolution.
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(b) The Partnership shall be dissolved and its affairs
shall be wound up upon the occurrence of any of the following events:
(i) The expiration of the term of the Partnership, as
provided in Section 1.4 hereof,
(ii) Upon the bankruptcy of the General Partner;
(iii) Upon the assignment by the General Partner of its
entire interest in the Partnership when the assignee is not admitted
to the Partnership as a general partner of the Partnership in
accordance with Section 10.1, or the filing of a certificate of
dissolution or its equivalent, with respect to the General Partner, or
the revocation of the General Partner's charter and the expiration of
90 days after the date of notice to the General Partner of revocation
without a reinstatement of its charter, or any other event occurs
which causes the General Partner to cease to be a general partner of
the Partnership under the Act, unless the business of the Partnership
is continued in accordance with the Act (any remaining general partner
of the Partnership is hereby authorized to and shall continue the
business of the Partnership without dissolution);
(iv) in accordance with any Action;
(v) upon the entry of a decree of judicial dissolution under
Section 17-802 of the Act; or
(vi) upon the written consent of all Partners.
(c) Upon dissolution of the Partnership, the Liquidator
(as defined below) shall promptly notify the Partners of such dissolution.
Section 11.3 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 11.2(b)(ii) or (iii), then a liquidating trustee appointed
by a Majority in liquidation preference of the Preferred Securities (the
General Partner or such Person so
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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, including the Partnership's Eligible Investments and/or amounts
deposited in the Eligible Investment Account; 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 XI, 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 winding up of the Partnership that the
General Partner would have with respect to the assets and liabilities of the
Partnership during the term of the Partnership, and the Liquidator is hereby
expressly authorized and empowered to execute any and all documents necessary
or desirable to effectuate the liquidation and winding up of the Partnership
and the transfer of any assets.
(c) Notwithstanding the foregoing, a Liquidator which is
not the General Partner shall not, by virtue of acting in such capacity, be
deemed a Partner in the Partnership or 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 a majority in interest
of the Limited Partners.
Section 11.4 Distribution in Liquidation.
Upon the winding up of the Partnership, the assets of the
Partnership (including any Eligible Investments or amounts deposited in the
Eligible Investment
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Account) shall be distributed in the following order of priority:
(i) to creditors of the Partnership, including Preferred
Security Holders 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 provision for payment thereof);
(ii) to the Holders of each series of Preferred Securities in
accordance with the terms of the Action establishing such series of
Preferred Securities; and
(iii) to the remaining Partners in proportion to such
Partners' positive Capital Account balances.
Section 11.5 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 return 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. No Partner shall have
any right to demand or receive property other than cash upon dissolution and
termination of the Partnership.
Section 11.6 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 11.4, and the Liquidator has executed and
caused to be filed a certificate of cancellation of the Certificate.
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ARTICLE XII
AMENDMENTS AND MEETINGS
Section 12.1 Amendments.
Except as otherwise provided in this Agreement or by any
applicable terms of any Action establishing a series of Preferred Securities,
this Agreement shall be amended by, and only by, a written instrument executed
by the General Partner; provided, however, that (i) no amendment shall be made,
and any such purported amendment shall be void and ineffective, to the extent
the result thereof would be to cause the Partnership to be treated as anything
other than a partnership for purposes of United States income taxation and (ii)
any amendment which would adversely affect the rights, privileges or
preferences of any series of Preferred Securities may be effected only as
permitted by the terms of such series of Preferred Securities.
Section 12.2 Amendment of Certificate.
In the event this Agreement shall be amended pursuant to
Section 12.1, 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 12.3 Meetings of the Partners.
(a) Meetings of the Limited Partners who are Holders of
any series or, in the case of a class vote, of multiple series of Preferred
Securities may be called at any time by the General Partner (or as provided in
any Action establishing a series of Preferred Securities) 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
of any series or, in the case of a class vote, multiple series, if directed to
do so by Holders of not less than 10% in liquidation preference of the
Preferred Securities of that series. Such direction shall be given by
delivering to the General Partner one or more calls in a writing stating that
the signing Limited Partners wish 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
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writing the LP 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 any such Action, 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 7 Business Days
nor more than 60 days prior to the date of such meeting. Whenever a vote,
consent or approval of Limited Part- ners is permitted or required under this
Agreement, such vote, consent or approval may be given at a meeting of Limited
Partners. Further, 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 at 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 specify 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 the time specified by the General
Partner.
(c) Each Limited Partner may authorize any Person to act
for it by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. 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 Limited Partner executing it.
Except as otherwise provided herein, in any Action or pursuant to Section
12.3(e), 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 corpo- ration and the Limited Partners were
stockholders of a Delaware corporation.
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(d) Each meeting of Partners shall be conducted by the
General Partner or by such other Person that the General Partner may designate.
(e) The General Partner, in its sole discretion, shall
establish all other provisions relating to meetings of Limited Partners,
including notice of the time, place or purpose of any meeting at which any
matter is to be voted on by any Limited 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 XIII
MISCELLANEOUS
Section 13.1 Notices.
All notices provided for in this Agreement shall be in
writing, duly signed by the party giving such notice, and shall be delivered,
telecopied or mailed by registered or certified mail, as follows:
(a) if given to the Partnership, in care of the General
Partner at the Partnership's mailing address set forth below:
Textron Finance, L.P.
c/o Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention:
(b) if given to the General Partner, at its mailing
address set forth below:
Textron Inc.
00 Xxxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention:
(c) if given to any other Partner, at the address set
forth on the books and records of the Partnership.
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All such notices shall be deemed to have been given, in the
case of the Partnership or the General Partners, when received in person,
telecopied with receipt confirmed, or mailed by first class mail, postage
prepaid.
Section 13.2 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 13.3 Governing Law.
This Agreement and the rights of the parties hereunder shall
be governed by and interpreted in accordance with the laws 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 13.4 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 13.5 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 13.6 Captions and Headings.
Captions and headings contained in this Agreement are inserted
only as a matter of convenience and in no way define, limit or extend the scope
or intent of this Agreement or any provision hereof.
Section 13.7 Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circum-
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stance, 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 13.8 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 13.9 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 13.10 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first stated above.
General Partner:
TEXTRON INC.,
a Delaware corporation
By:
----------------------------------
Name:
Title:
Initial Limited Partner:
TEXTRON HOLDINGS, INC.,
a Delaware corporation
By:
----------------------------------
Name:
Title:
56
ANNEX A
[IF THE PREFERRED SECURITY IS TO BE A GLOBAL CERTIFICATE
INSERT - This Preferred Security is a global LP Certificate within the meaning
of the Limited Partnership Agreement hereinafter referred to and is registered
in the name of The Depository Trust Company (the "Depositary") or a nominee of
the Depositary. This Preferred Security is exchangeable for Preferred
Securities registered in the name of a person other than the Depositary or its
nominee only in the limited circumstances described in the Limited Partnership
Agreement and no transfer of this Preferred Security (other than a transfer of
this Preferred Security as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary) may be registered except in limited circumstances.
Unless this Preferred Security is presented by an authorized
representative of The Depository Trust Company (55 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx) to the Trust or its agent for registration of transfer, exchange or
payment, and any Preferred Security issued is registered in the name of Cede &
Co. or such other name as requested by an authorized representative of The
Depository Trust Company and any payment hereon is made to Cede & Co., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.]
Certificate Number Number of Preferred Securities
CUSIP NO.
Certificate Evidencing Preferred Securities
of
Textron Finance, L.P.
_______ Preferred Securities, Series __
(liquidation preference $25 per Preferred Security)
A-1
57
Textron Finance, L.P., a limited partnership formed under the
laws of the State of Delaware (the "Partnership"), hereby certifies that
__________________ (the "Holder") is the registered owner of _______________
(__________) preferred securities of the Partnership representing limited
partner interests in the Partnership of a series designated the ___% Preferred
Securities, Series ____ (liquidation preference $25 per Preferred Security)
(the "Series ____ Preferred Securities"). The Series ____ Preferred Securities
are fully paid and nonassessable limited partner interests in the Partnership,
as to which the limited partners of the Partnership who hold the Series ____
Preferred Securities (the "Preferred Security Holders"), in their capacities as
limited partners of the Partnership, will, assuming such Preferred Security
Holders do not participate in the control of the business of the Partnership,
have no liability in excess of their obligations to make payments provided for
in the Limited Partnership Agreement (as defined below) and their share of the
Partnership's assets and undistributed profits (subject to the obligation of a
Preferred Security Holder to repay any funds wrongfully distributed to it) and
are transferable on the books and records of the Partnership, in person or by a
duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer. The designations, rights, privileges,
restrictions, preferences and other terms and provisions of the Series ____
Preferred Securities are set forth in, and this certificate and the Series ____
Preferred Securities represented hereby are issued and shall in all respects be
subject to the terms and provisions of the Amended and Restated Agreement of
Limited Partnership of the Partnership dated as of _______________, 1995, as
the same may be amended from time to time (the "Limited Partnership Agreement")
including the action of the General Partner taken pursuant thereto authorizing
the issuance of the Series ____ Preferred Securities and determining the
designations, rights, privileges, restrictions, preferences and other terms and
provisions regarding Dividends, voting, return of capital and otherwise, and
other matters relating to the Series ___ Preferred Securities. Capitalized
terms used herein but not defined shall have the meaning given them in the
Limited Partnership Agreement or the Action. The Holder is entitled to the
benefits of the Guarantee Agreement of Textron Inc., a Delaware corporation
("Textron"), dated as of ________, 1995 (the "Guarantee") to the extent
provided therein. The Partnership will furnish a copy of the Limited
Partnership Agreement, the Action and the Guarantee to the Holder without
charge upon written
A-2
58
request to the Partnership at its principal place of business or registered
office.
Upon receipt of this certificate, the Holder is admitted to the
Partnership as a Limited Partner, is bound by the Limited Partnership Agreement
and is entitled to the benefits thereunder.
IN WITNESS WHEREOF, the Partnership has executed this certificate
this day of ________, 199_.
TEXTRON FINANCE, L.P.
By: TEXTRON INC.,
General Partner
By:
----------------------------------
Name:
Title:
A-3
