EXHIBIT 4.4 AGREEMENT OF LIMITED PARTNERSHIP
OF FNB FINANCIAL SERVICES, LP . . . TABLE OF CONTENTS
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ARTICLE 1 ORGANIZATIONAL
MATTERS................................................. 1 Section
1.1 -
Formation..........................................................
1 Section 1.2 -
Name...............................................................
1 Section 1.3 - Purpose and Character of
Business.................................. 1 Section 1.4 -
Effective Date; Term...............................................
1 Section 1.5 - Registered
Agent................................................... 1 Section
1.6 -
Partners...........................................................
2 ARTICLE 2
DEFINITIONS............................................................
2 ARTICLE 3 CAPITAL CONTRIBUTIONS;
LOANS........................................... 2 Section 3.1 -
Capital............................................................
2 Section 3.2 -
Interest...........................................................
2 Section 3.3 - Additional Required
Funds.......................................... 2 Section 3.4 -
Loans..............................................................
3 Section 3.5 - Distributions and
Withdrawals...................................... 3 Section 3.6 -
Subsequent Partners................................................
3 ARTICLE 4 ALLOCATIONS OF PROFITS AND LOSSES; DISTRIBUTIONS;
ACCOUNTING........... 3 Section 4.1 - Allocation of Income and
Loss...................................... 3 Section 4.2 -
Distribution of Cash Flow..........................................
4 Section 4.3 - Books and
Records.................................................. 4 Section
4.4 - Accounting Period and
Method....................................... 5 Section 4.5 -
Capital Accounts...................................................
5 Section 4.6 - Charges Against Capital
Accounts................................... 5 Section 4.7 - Tax
Election....................................................... 5
Section 4.8 - Tax Matters
Partner................................................ 5 ARTICLE 5
MANAGEMENT.............................................................
6 Section 5.1 - Powers of the General
Partner...................................... 6 Section 5.2 -
Duties of the Managing Partners....................................
7 Section 5.3 - Compensation to the Managing
Partners.............................. 7 Section 5.4 - Prohibition
on Authority of the Managing Partners.................. 7 Section
5.5 - Exculpation and
Indemnification.................................... 8 Section 5.6 -
Expenses...........................................................
8 Section 5.7 -
Insurance..........................................................
8 ARTICLE 6 RIGHTS AND PROHIBITIONS AFFECTING GENERAL
PARTNERS..................... 9
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Section 6.1 - Withdrawal of General
Partner...................................... 9 Section 6.2 -
Additional General Partners........................................
9 ARTICLE 7 RIGHTS AND PROHIBITIONS AFFECTING LIMITED
PARTNERS..................... 9 Section 7.1 - Rights, Powers, and
Restrictions................................... 9 Section 7.2 -
Limitation on Withdrawal...........................................
9 Section 7.3 - Additional Limited
Partners........................................ 9 Section 7.4 -
Voting - Limited Partners..........................................
9 ARTICLE 8 TRANSFER OF INTEREST;
WITHDRAWAL....................................... 10 Section 8.1 -
Unrestricted Transfers.............................................
10 Section 8.2 - Right of First
Refusal............................................. 10 Section 8.4
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Transferees........................................................
11 Section 8.5 - Admission of
Transferees........................................... 11 Section
8.6 -
Compliance.........................................................
12 Section 8.7 - Withdrawal of a General
Partner.................................... 12 Section 8.8 -
Withdrawal of Sole General Partner.................................
12 ARTICLE 9 DISSOLUTION; TERMINATION OF THE
PARTNERSHIP............................ 12 Section 9.1 - Causes of
Termination.............................................. 12
Section 9.2 -
Liquidation........................................................
12 Section 9.3 - Final
Accounting................................................... 13
ARTICLE 10
MISCELLANEOUS.........................................................
13 Section 10.1 - Governing
Law..................................................... 13 Section
10.2 -
Amendments........................................................
13 Section 10.3 - Further
Action.................................................... 14
Section 10.4 - Binding
Effect.................................................... 14
Section 10.5 -
Ratification......................................................
14 Section 10.6 - Entire
Agreement.................................................. 14
Section 10.7 - Headings,
Etc..................................................... 14 Section
10.8 -
Severability......................................................
14 Section 10.9 -
Notices...........................................................
14 Section 10.10 - Power of
Attorney................................................ 15 Section
10.11 -
Counterparts.....................................................
15 Section 10.12 -
Exhibits.........................................................
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ii AGREEMENT OF LIMITED PARTNERSHIP OF FNB
FINANCIAL SERVICES, LP THIS AGREEMENT OF LIMITED PARTNERSHIP (the
"Agreement"), is entered into by and among Regency Consumer
Financial Services Inc. (hereinafter referred to as the "General
Partner"), and FNB Consumer Financial Services Inc. (hereinafter
referred to as the "Limited Partner") (the Limited Partner and the
General Partner are hereinafter sometimes collectively referred to
as the "Partners" and individually as a "Partner") who hereby agree
to form a limited partnership under and governed by the provisions
of the Delaware Revised Uniform Limited Partnership Act, Title 6,
Chapter 17 of the Delaware Code (the "Act"). The limited
partnership is formed for the purposes and upon the terms and
conditions hereinafter set forth. ARTICLE 1 ORGANIZATIONAL MATTERS
Section 1.1 - Formation. The Partners hereby enter into this
Agreement under the Act for the purpose of evidencing their
agreement to operate the Partnership as a partnership for federal
tax purposes. The Partners have authorized the formation of the
Partnership as a Delaware limited partnership pursuant to the
provisions of the Act and have caused to be filed a Certificate of
Limited Partnership with the Secretary of State of Delaware. The
Partners shall forthwith execute and cause to be filed any
additional documents and instruments as may be necessary or
appropriate in connection with the transaction of business by the
Partnership. Section 1.2 - Name. The name of the Partnership is FNB
FINANCIAL SERVICES, LP (the "Partnership"). The Partnership shall
conduct business under such name or such variations of such name as
the General Partner deems appropriate to comply with the laws of
any other jurisdiction in which the Partnership qualifies to do
business. Section 1.3 - Purpose and Character of Business. The
Partnership is formed to issue, administer and repay Securities (as
defined in the Indenture) being issued pursuant to and
authenticated under that certain Indenture by and among the
Partnership, F.N.B. Corporation, as Guarantor and J.P. Morgan Trust
Company, National Association, as Trustee ("Trustee"), dated as of
January ____, 2005 (the "Indenture"), as well as to perform any
other actions necessary or appropriate to effectuate the issuance,
administration and repayment of such Securities. Section 1.4 -
Effective Date; Term. This Agreement shall be deemed to be
effective on the date that an executed copy of the Certificate of
Limited Partnership required by Section 17-201 of the Act was filed
with the Secretary of State of Delaware. The term of the
Partnership shall be perpetual unless earlier dissolved and
terminated pursuant to the Act or any provision of this Agreement.
Section 1.5 - Registered Agent. The name of the registered agent
for service of process on the Partnership shall be Entity Services
Group, LLC #9272016, and the address of the registered agent and
registered office in the State of Delaware is 103 Foulk Road, Suite
200, Wilmington, 1 Delaware 19803. Upon any change of the
Registered Agent, the Partnership shall file a notice of change
with the Secretary of State of Delaware as required under the Act.
Section 1.6 - Partners. Upon the execution of a counterpart
signature page to this Agreement, (i) the General Partner shall be
admitted as a general partner of the Partnership and (ii) the
Limited Partner shall be admitted as the limited partner of the
Partnership. The names, mailing addresses and number of Units of
the Partners are set forth on Exhibit A attached hereto. ARTICLE 2
DEFINITIONS For purposes of this Agreement, unless the context
clearly indicates otherwise: (i) all of the capitalized words in
this Agreement shall have the meanings set forth in the Appendix;
and (ii) all non-capitalized words defined in the Act shall have
the meanings set forth therein. ARTICLE 3 CAPITAL CONTRIBUTIONS;
LOANS Section 3.1 - Capital. Concurrently with the execution of
this Agreement, the Partners shall make a Capital Contribution in
cash or property having a fair market value in the amount set forth
opposite each Partner's name in Exhibit A attached hereto. All
Capital Contributions of the partners shall be credited to the
Partners' Capital Accounts and maintained by the Partnership in
accordance with Section 4.5 hereof. Section 3.2 - Interest. No
Partner shall be entitled to any interest on its Capital Account or
on its contributions to the capital of the Partnership. Section 3.3
- Additional Required Funds. If additional capital is required, as
determined by the General Partner, each Partner may, but shall not
be required to, contribute such capital in proportion to the number
of Units owned by each Partner as compared to the total number of
Units owned by all of the Partners. If additional Capital
Contributions are made by the Partners to the Partnership,
additional Units (General Partnership Units or Limited Partnership
Units, as the case may be) shall be issued by the General Partner
to such Partners. The determination of the amount of Units to be
issued shall be determined by the General Partner, taking into
account the value of said Capital Contribution and the then net
fair market value of the underlying Partnership property
immediately before the contribution. If any Partner shall not make
such additional contribution, the other Partners shall have the
right, but not the duty, to make such contributions, in proportion
to the number of Units owned by such Partner or as otherwise
agreed, in exchange for additional Units. The Partners agree that
the sole remedy for failure to make an additional Capital
Contribution under this Section 3.3 shall be the dilution of their
ownership interest in the Partnership by the reason of the issuance
of additional Units to other Partners who have made such additional
Capital Contributions. 2 Section 3.4 - Loans. In the event the
Partnership shall require funds to carry on the business of the
Partnership, any Partner shall have the right, but not be required,
to loan money upon terms and conditions acceptable to such Partner
and the Partnership ("Loans"). Section 3.5 - Distributions and
Withdrawals. No Partner shall be entitled to make withdrawals from
the Partnership except to the extent of distributions made pursuant
to express provisions of this Agreement. Distributions may be made
in cash or in property or partly in each. No Partner shall have the
right to require that a distribution be made other than in cash,
except as expressly provided otherwise in this Agreement. Section
3.6 - Subsequent Partners. Any Person who subsequently becomes a
Partner by contributing property to the Partnership shall be given
full and fair Capital Account credit therefor based upon the net
fair market value of the property at the date of the contribution,
as determined by mutual agreement of the Person contributing the
property and the General Partner. Upon any such contributions, the
Capital Account balances of the other Partners shall be adjusted to
reflect the then net fair market value of the underlying
Partnership property after the contribution in accordance with
Section 704(b) of the Code and the Treasury Regulations promulgated
thereunder. ARTICLE 4 ALLOCATIONS OF PROFITS AND LOSSES;
DISTRIBUTIONS; ACCOUNTING Section 4.1 - Allocation of Income and
Loss. For purposes of maintaining the Capital Accounts and in
determining the rights of the Partners among themselves, the
Partnership's items of income, gain, loss, and deduction shall be
allocated among the Partners for each fiscal year (or portion
thereof) as provided herein below. a. Profits. Except as otherwise
provided, after giving effect to the Regulatory Allocations and
Curative Allocations, Profits of the Partnership for each fiscal
year shall be allocated among the Partners as follows: (i) First,
to the Partners in proportion to and to the extent of the
cumulative amount of Losses allocated to the Partners pursuant to
Section 4.1(b)(ii) hereof for all prior fiscal years, over the
cumulative Profits allocated to the Partners pursuant to this
Section 4.1(a)(i) for all prior fiscal years; (ii) Second, to the
Partners in proportion to and to the extent of the cumulative
amount of Losses allocated to the Partners pursuant to Section
4.1(b)(i) hereof for all prior fiscal years, over the cumulative
Profits allocated to the Partners pursuant to this Section
4.1(a)(ii) for all prior fiscal years; 3 (iii) The balance, if any,
to the Partners in proportion to the total number of Units owned by
each Partner as compared to the total number of Units owned by all
of the Partners. b. Losses. Except as otherwise provided, after
giving effect to the Regulatory and Curative Allocations, Losses of
the Partnership for each fiscal year shall be allocated among the
Partners as follows: (i) First, to the Partners, up to an amount,
if any, necessary to reduce their respective positive Capital
Account balance to zero, in proportion to their respective positive
Capital Account balances; and (ii) The balance, if any, to the
Partners in proportion to the total number of Units owned by each
Partner as compared to the total number of Units owned by all of
the Partners. c. Varying Unit Ownership. Partners whose Units in
the Partnership vary during a fiscal year shall be allocated
Profits and Losses by allocating to them the appropriate pro rata
part amount of such items based on the number of days that they
held their Units during the fiscal year. Section 4.2 - Distribution
of Cash Flow. Except as provided in Article 9 hereof, the General
Partner may distribute Cash Flow, from time to time, first to the
payment of the principal and accrued interest, if any, of the Loans
contemplated by Section 3.4 hereof, in proportion to the relative
amounts of each; then to the Partners in proportion to the total
number of Units owned by each Partner as compared to the total
number of Units owned by all of the Partners, provided that the
General Partner has adequately funded Working Capital Reserves to
meet the future liabilities of the Partnership. Notwithstanding any
provision to the contrary contained in this Agreement, the
Partnership shall not be required to make a distribution to a
Partner on account of its interest in the Partnership if such
distribution would violate the Act or any other applicable law.
Section 4.3 - Books and Records. The books and records of the
Partnership shall be kept in sufficient detail to determine the
Profits, Losses, credits and the federal income tax items of the
Partnership for each period for which an allocation is to be made
pursuant to this Agreement. The Partnership shall also keep such
books and records in sufficient detail so as to permit preparation
of financial statements in accordance with customary accounting
principles consistently applied. Such books and records and
financial statements, together with any other records and documents
required to be made available by the Partnership for inspection
under the Act, shall be maintained at the principal office of the
Partnership. Such documents shall be open for inspection and
examination, copying, verification or audit thereof by any Partner
or its duly authorized representative for any purpose reasonably
related to such Partner's interest in the Partnership. The General
Partner shall have the right to keep confidential from the Limited
Partners for such period of time as the General Partner deems
reasonable, any information which the General Partner reasonably
believes to be in the nature of trade secrets or other information
the disclosure of which the General Partner in good faith believes
is not in the best interest of the Partnership or could damage the
Partnership or its 4 business or which the Partnership is required
by law or by agreement with a third party to keep confidential.
Section 4.4 - Accounting Period and Method. The accounting period
and fiscal year of the Partnership shall be the period ending
December 31 each year. The Partnership shall prepare all financial
statements on the cash method of accounting or such other
reasonable accounting method approved by the General Partner.
Section 4.5 - Capital Accounts. A separate Capital Account shall be
determined and maintained for each Partner. No Partner shall have
any interest in the Capital Account of any other Partner. Capital
Accounts shall be determined and maintained on the same basis as
Capital Accounts are determined and maintained by the Partnership
for purposes of federal income taxation in accordance with the
requirements of Section 704(b) of the Code and Section 1.704-1(b)
of the Treasury Regulations promulgated thereunder. Section 4.6 -
Charges Against Capital Accounts. If the Partnership shall suffer
Losses as a result of which the Capital Account of any Partner
shall be negative, such Losses shall be carried as a charge against
such Partner's Capital Account and a subsequent share of Profits
and gain of the Partnership shall be applied to restore such
deficit in such Partner's Capital Account. Section 4.7 - Tax
Election. All elections and options available to the Partnership
for federal and state tax purposes shall be taken or rejected by
the Partnership in the sole discretion of the General Partner. The
General Partner may elect pursuant to Section 754 of the Code to
adjust the basis of the Partnership's assets, in the case of a
distribution of property, in the manner provided in Section 734 of
the Code and, in the case of a transfer of a Partner's Units, in
the manner provided in Section 743 of the Code. Section 4.8 - Tax
Matters Partner. The General Partner shall act as the initial Tax
Matters Partner as defined in Section 6231 of the Code. The Tax
Matters Partner shall provide the Partners with a copy of all
correspondence and shall keep the other Partners reasonably
informed of any audit, administrative or judicial proceedings
involving the potential adjustment at the Partnership level of any
item required to be taken into account by the Partners for purposes
of federal, state and local income taxation. In any controversy
with the Internal Revenue Service or any other taxing authority
involving the Partnership, either directly or indirectly, the Tax
Matters Partner may, in respect thereof, incur expenses on behalf
of the Partnership which it deems necessary and advisable and in
the best interests of the Partnership including, but not limited
to, attorneys' and accounting fees. The Tax Matters Partner may
execute or agree to a settlement or a compromise of such
controversy, waive or extend the statute of limitations, choose a
forum for litigation and file amended tax returns without the prior
consent of the Partners. The Partnership shall indemnify the Tax
Matters Partner and make advancement of expenses as provided in
Section 5.5 of this Agreement. 5 ARTICLE 5 MANAGEMENT Section 5.1 -
Powers of the General Partner. The General Partner shall have all
the rights, powers and restrictions conferred in this Agreement and
under the Act which are consistent with the characterization and
treatment of the Partnership as a limited partnership. Subject to
the limitations imposed under the Act and this Agreement, the
General Partner shall have all the rights, powers and restrictions
which may be possessed by a general partner under the Act as are
necessary to manage and carry on the business of the Partnership.
Such rights and powers shall include, but shall not be limited to,
the right and power to: a. cause the issuance, administration and
repayment of the Securities issued pursuant to and authenticated
under the Indenture in such manner as the General Partner deems
reasonable and appropriate under the circumstances; b. manage the
day-to-day operations of the Partnership, including the right to
establish bank accounts for the Partnership and make deposits of
the capital and other funds for the Partnership in and withdrawals
from such accounts, and to borrow funds, use the assets of the
Partnership as collateral, or guarantee any obligation of the
Partnership as the General Partner deems necessary to carry on the
Partnership business; c. incur and pay reasonable expenses with
respect to the conduct and operation of the Partnership business,
including expenses in connection with the registration,
administration and repayment of securities, and expenses for
accounting, legal, appraisal, investment advice, clerical and other
services; d. disseminate information concerning the Partnership's
affairs to the Partners as it deems necessary or appropriate; e.
perform any reasonable act in furtherance of the Partnership
business; f. render periodic reports to the Partners with respect
to the operations of the Partnership; g. maintain complete and
accurate books of account (containing such information as shall be
necessary to record allocations and distributions), and make such
records and books of account available for inspection and audit by
any Partner or its duly authorized representative (at the expense
of such Partner) during regular business hours and at the principal
office of the Partnership; 6 h. prepare and distribute to the
Partners, within the time prescribed by law, all required tax
reporting information for each fiscal year and arrange for the
preparation and filing of all tax returns of the Partnership; i.
cause to be timely filed all governmental filings for the
Partnership, and do such other acts as may be required by law to
qualify and maintain the Partnership as a limited partnership under
the Act; and j. execute any and all documents, in the name of and
on behalf of the Partnership, which are necessary to effectuate any
of the foregoing or otherwise necessary to carry out its duties as
General Partner. Section 5.2 - Duties of the General Partner. The
General Partner shall owe no duties to the Partnership or the other
Partners, other than as expressly stated in this Agreement;
provided, however, that the General Partner must comply with the
implied contractual covenant of good faith and fair dealing. In
addition to the obligations expressly imposed upon it by this
Agreement: a. The General Partner will comply with all the
obligations imposed upon it, and will cause the Partnership to
comply with all obligations imposed upon the Partnership by the
Indenture. b. Nothing in this Agreement, express or implied, shall
give to any Person, other than the parties hereto and their
successors hereunder and the Trustee and the Holders, which are
hereby expressly made third party beneficiaries of this Agreement,
any benefit or any legal or equitable right, remedy or claim under
this Agreement, provided, however, that any such benefit, legal or
equitable right, remedy or claim of such Trustee and Holders shall
be enforceable only, and subject to all the limitations and
restrictions thereon, as provided by the Indenture; provided,
however, that in no event shall the General Partner be liable for
the payment of the principal of, or the interest on, the
Securities. Section 5.3 - Compensation to the General Partner. The
General Partner shall be allowed reasonable compensation for
services rendered to the Partnership. The General Partner shall
also be entitled to reimbursement for any reasonable expenses paid
by it arising out of the business of the Partnership. Section 5.4 -
Prohibition on Authority of the General Partner. The General
Partner shall not have the authority to: a. do any act in
contravention of the Certificate of Limited Partnership, the Act or
this Agreement; b. do any act which would make it impossible to
carry on the ordinary business of the Partnership; or 7 c. possess
Partnership property or assign the rights of the Partnership in
specific Partnership property for other than a Partnership purpose.
Section 5.5 - Exculpation and Indemnification. a. No Partner shall
be liable to the Partnership or any other Partner for any loss,
damage or claim incurred by reason of any act or omission performed
or omitted by such Person, except that a Person shall be liable for
any such loss, damage or claim incurred by reason of such Person's
bad faith violation of the implied contractual covenant of good
faith and fair dealing. b. The Partnership shall, to the fullest
extent permitted by law, indemnify any Partner 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 by reason of the fact
that such Partner is a partner of the Partnership, against expenses
(including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such Partner in
connection with such action, suit or proceeding; provided, however,
the Partnership shall not indemnify any Partner for such Partner's
bad faith violation of the implied contractual covenant of good
faith and fair dealing. 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 Partner did not act in good faith and
in a manner which the Partner 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 such Partner's conduct was unlawful. Section 5.6 -
Expenses. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Partnership in
advance of the final disposition of such action, suit or proceeding
upon receipt of an understanding by or on behalf of a Partner to
repay such amount unless it shall ultimately
