Transcription
Final Form of Agreement AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT THE LIMITED PARTNERSHIP INTERESTS (THE “INTERESTS”) HAVE NOT BEENREGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED(THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OF THE UNITEDSTATES OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPONEXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIESACT AND SUCH LAWS. SUCH INTERESTS MUST BE ACQUIRED FOR INVESTMENTONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD,ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I)THE SECURITIES ACT, ANY APPLICABLE U.S. STATE SECURITIES LAWS, AND ANYOTHER APPLICABLE SECURITIES LAWS; AND (II) THE TERMS AND CONDITIONS OFTHIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT.THEREFORE, PURCHASERS OF INTERESTS WILL BE REQUIRED TO BEAR THE RISKOF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
TABLE OF CONTENTSPageARTICLE I Definitions . 1ARTICLE II General Provisions. 142.1.2.2.2.3.2.4.2.5.2.6.2.7.2.8.2.9.Formation . 14Name . 14Purpose . 14Principal Place of Business; Other Places of Business . 14Registered Office and Registered Agent . 15Term . 15Fiscal Year . 15Withdrawal of Initial Limited Partner. 15Specific Authorization. 15ARTICLE III Capital Contributions; Distributions. 153.1.3.2.3.3.3.4.3.5.3.6.Capital Contributions . 15Termination of Investment Period . 19Subsequent Closings . 19Distributions -- General Principles . 21Amounts and Priority of Distributions; Contingent Interest Promissory Note . 23Establishment of Escrow Account . 23ARTICLE IV The General Partner . 244.1.4.2.4.3.4.4.4.5.4.6.Investment Guidelines. 24Powers of the General Partner . 25General Partner as Limited Partner . 28Other Activities. 28ERISA Covenant. 29Fair Market Value . 30ARTICLE V The Limited Partners . 305.1.5.2.5.3.5.4.Management . 30Liabilities of the Limited Partners . 31UST’s Outside Activities. 31Private Vehicles . 32ARTICLE VI Expenses and Fees. 326.1. General Partner Expenses. 326.2. UST Management Fee. 336.3. Partnership Expenses. 34ARTICLE VII Transfers, Withdrawals and Default . 357.1. Transfer and Withdrawal of the General Partner . 35i
7.2.7.3.7.4.7.5.Assignments by Private Vehicles and UST. 39Defaulting Partners . 40Further Actions . 42Admissions and Withdrawals Generally . 42ARTICLE VIII Term and Dissolution of the Partnership . 438.1.8.2.8.3.8.4.Term . 43Winding-up . 44Final Distribution . 44Noteholder Clawback. 45ARTICLE IX Capital Accounts and Allocations of Profits and Losses. 459.1.9.2.9.3.9.4.9.5.9.6.Capital Accounts. 45Allocations of Profits and Losses . 46Special Allocation Provisions. 46Tax Allocations. 47Other Allocation Provisions . 47Tax Advances . 48ARTICLE X Representations, Warranties and Covenants. 4810.1. Representations, Warranties and Covenants of the General Partner . 48ARTICLE XI Miscellaneous . 6011.1. Amendments . 6011.2. Private Vehicle and Feeder Vehicle Documents and Side Letters; MFN . 6011.3. Entire Agreement . 6111.4. Severability . 6111.5. Notices. 6111.6. Governing Law and Jurisdiction. 6211.7. Waiver of Jury Trial . 6211.8. Service of Process . 6211.9. Successors and Assigns . 6211.10. Counterparts. 6311.11. Interpretation. 6311.12. Headings . 6311.13. Delivery of Certificate of Limited Partnership, etc. 6311.14. Partnership Tax Treatment . 6311.15. Other PPIF LPAs and PPIF Loan Documents . 6311.16. Confidentiality . 6411.17. Waiver of Partition . 64SCHEDULE A: Additional TermsSCHEDULE B: Capital Commitments and AddressesSCHEDULE C: Disclosure ItemsSCHEDULE D: UST Legendii
ANNEX A: Contingent Interest Promissory NoteANNEX B: Compliance RulesANNEX C: Quarterly Certificateiii
AMENDED AND RESTATEDLIMITED PARTNERSHIP AGREEMENTTHIS AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENTof the Partnership is made as of the Closing Date.WITNESSETH:WHEREAS, the General Partner and the Initial Limited Partner have entered intothe Original Agreement and, upon filing of the Certificate of Limited Partnership, formed alimited partnership under the laws of the State of Delaware; andWHEREAS, the parties hereto desire to enter into this Agreement to permit thewithdrawal of the Initial Limited Partner and the admission of Limited Partners (as definedherein) of the Partnership and to further make the modifications hereinafter set forth;NOW, THEREFORE, in consideration of the mutual promises and agreementsherein made and intending to be legally bound hereby, the parties hereto agree to amend andrestate the Original Agreement in its entirety to read as follows:ARTICLE IDefinitionsAs used herein, the following terms shall have the following meanings:1940 Act: The United States Investment Company Act of 1940, as amended, asthe same may be further amended from time to time.Act: The Delaware Revised Uniform Limited Partnership Act, 6 Del. Code §17101 et seq., as the same may be amended from time to time.Additional Amount: As defined in Section 3.3(b)(i).Additional Debt: Indebtedness, other than Indebtedness pursuant to the LoanAgreement and TALF Debt.Additional Representations: As defined on Schedule A.Adjusted Capital Account: With respect to a Partner, such Partner’s CapitalAccount as of the end of each taxable year of the Partnership, as the same is speciallycomputed to reflect the adjustments required or permitted to be taken into account inapplying United States Treasury Regulations Section 1.704-1(b)(2)(ii)(d) (includingadjustments for Partnership Minimum Gain and Partner Nonrecourse Debt MinimumGain) and taking into account any amounts such Partner is obligated or deemed obligatedto restore pursuant to any provision of this Agreement and the United States TreasuryRegulations.
Adjusted Capital Account Deficit: For each Partner, the deficit balance, if any, insuch Partner’s Adjusted Capital Account.Adjusted Clawback Amount: With respect to any Partner, the lesser of (i) theClawback Amount with respect to such Partner and (ii) the difference between (x) theaggregate distributions to the Noteholder of UST Warrant Proceeds with respect to suchPartner and (y) the aggregate distributions to the Noteholder of Default Warrant Proceedswith respect to such Partner.Advisers Act: The United States Investment Advisers Act of 1940, as amended,as the same may be further amended from time to time.Affiliate: As defined in Schedule A.Agreement: This Amended and Restated Limited Partnership Agreement,together with the Schedules and Annexes hereto, as the same may be amended, modifiedor supplemented from time to time.Allocation Policy: As defined in the Compliance Rules.Applicable Percentage: As defined in Schedule A.Assignee: As defined in Section 7.2(a).BHC Act: The United States Bank Holding Company Act of 1956, as amended,as the same may be further amended from time to time.Business Day: A day which is not a Saturday, Sunday or other day on whichcommercial banks are authorized or required by law to be closed in Washington, D.C. orNew York, New York.Capital Account: As defined in Section 9.1(a).Capital Commitment: As to any Partner, the amount set forth as such onSchedule B, as such amount may be adjusted from time to time pursuant to Sections 3.3or 7.3(e) or otherwise pursuant hereto.Capital Contribution: As to any Partner at any time, (i) the aggregate amount ofcapital actually contributed to the Partnership by such Partner pursuant to Sections 3.1(a),3.3 or 7.3(c) on or prior to such time minus (ii) any amounts contributed for maintenanceof a Working Capital Reserve returned to such Partner pursuant to Section 3.2(b)(i);provided that the Capital Contribution of each Partner with respect to an Investment shallbe adjusted to reflect any return of Capital Contributions to such Partner with respect tosuch Investment p
Agreement: This Amended and Restated Limited Partnership Agreement, together with the Schedules and Annexes hereto, as the same may be amended, modified or supplemented from time to time. Allocation Policy: As defined in the Compliance Rules. Applicable Percentage: As defined in Schedule A. Assignee: As defined in Section 7.2(a). BHC Act: The United States Bank Holding Company Act of
