Ex 10.33
AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
TRIDENT III ESC, L.P.
(A Cayman Islands Exempted Limited Partnership)
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LIMITED PARTNER INTERESTS IN TRIDENT III
ESC, L.P. ARE SUBJECT TO RESTRICTIONS
ON TRANSFERABILITY. THEY MAY NOT BE
TRANSFERRED WITHOUT THE CONSENT OF THE
GENERAL PARTNER OF TRIDENT III ESC, L.P.
AND EXCEPT AS PERMITTED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ALL
OTHER APPLICABLE LAWS. INVESTORS
WILL BE REQUIRED TO BEAR THE FINANCIAL
RISKS OF AN INVESTMENT IN TRIDENT III
ESC, L.P. FOR AN INDEFINITE PERIOD OF
TIME.
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TABLE OF CONTENTS
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SECTION 1
ORGANIZATION,
ETC......................................................................1
1.1 Amendment
and Restatement of the Initial Agreement; Admission of Limited
Partners...............1
1.2 Name and
Offices................................................................................1
1.3
Purposes........................................................................................2
1.4
Term............................................................................................2
1.5 Fiscal
Year.....................................................................................2
1.6
Partnership
Powers..............................................................................2
SECTION 2
THE GENERAL
PARTNER....................................................................3
2.1
Management......................................................................................3
2.2
Limitations on the General
Partner..............................................................4
2.3 Reliance
by Third
Parties.......................................................................4
2.4 Fees and
Expenses...............................................................................4
2.5 Conflicts
of
Interest...........................................................................5
2.6 Liability
of the General Partner and the
Manager................................................6
SECTION 3
LIMITED
PARTNERS.......................................................................7
3.1
Eligibility.....................................................................................7
3.2 No Participation in Management,
etc.............................................................7
3.3 Limitation
of
Liability.........................................................................7
3.4 No
Priority,
etc................................................................................7
3.5 Further
Actions of the Limited
Partners.........................................................7
SECTION 4
INVESTMENTS............................................................................8
4.1
Investments in Portfolio
Companies..............................................................8
4.2 Special
Investment Vehicle; Blocker
Structures..................................................8
4.3 Temporary
Investments...........................................................................9
SECTION 5
CAPITAL CONTRIBUTIONS AND CAPITAL
COMMITMENTS..........................................9
5.1 Capital
Contributions and Capital Commitments of the
Partners...................................9
5.2 Defaulting
Partner.............................................................................10
5.3 Further
Actions................................................................................11
5.4 Excused
Investments............................................................................11
SECTION 6
CAPITAL ACCOUNTS;
DISTRIBUTIONS.......................................................11
6.1 Capital
Accounts...............................................................................11
6.2
Adjustments to Capital
Accounts................................................................11
6.3
Distributions..................................................................................11
6.4 Overriding
Provision...........................................................................11
6.5
Distributions in
Kind..........................................................................12
6.6 Negative
Capital
Accounts......................................................................12
6.7 No
Withdrawal of
Capital.......................................................................12
6.8
Allocations....................................................................................12
6.9 Tax
Matters....................................................................................12
6.10 Withholding
Taxes..............................................................................13
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6.11 Final
Distribution.............................................................................15
SECTION 7
THE
MANAGER...........................................................................15
SECTION 8
BANKING, CUSTODY OF SECURITIES, ACCOUNTING, BOOKS AND RECORDS,
ADMINISTRATIVE
SERVICES
.............................................................................15
8.1 Banking;
Custody of
Securities.................................................................15
8.2
Maintenance of Books and Records;
Access.......................................................16
8.3
Partnership Tax
Returns........................................................................16
SECTION 9
REPORTS TO PARTNERS, ANNUAL MEETING,
VALUATIONS.......................................16
9.1
Independent
Auditors...........................................................................16
9.2
Partnership Reports to Limited
Partners........................................................17
9.3 United
States Federal Income Tax
Information...................................................17
9.4 Annual
Meeting.................................................................................17
9.5
Valuation......................................................................................17
SECTION 10
INDEMNIFICATION.......................................................................18
10.1 Indemnification
of Covered
Persons.............................................................18
10.2 Expenses,
etc..................................................................................19
10.3 Notices of
Claims,
etc.........................................................................19
10.4 No
Waiver......................................................................................20
10.5 Covered Persons
May Rely and
Enforce...........................................................20
SECTION 11
TRANSFERS, REdemptions AND
WITHDRAWALS................................................20
11.1 General
Restrictions on Transfers and Withdrawals; Material Adverse
Effects; Regulatory
Redemptions....................................................................................20
11.2 Additional
Limited
Partners....................................................................21
11.3 Multi-Fund and
Multi-Vehicle
Adjustments.......................................................23
11.4 Effect of
Termination of
Employment............................................................24
11.5 Transfer or
Withdrawal by the General
Partner..................................................25
SECTION 12
DEATH, INCOMPETENCY OR BANKRUPTCY OR DISSOLUTION OF
PARTNERS..........................26
12.1 Bankruptcy or
Dissolution of the General
Partner...............................................26
12.2 Death,
Incompetence, Bankruptcy, Dissolution or Withdrawal of a Limited
Partner................26
SECTION 13
DISSOLUTION AND TERMINATION OF
PARTNERSHIP............................................26
13.1
Dissolution....................................................................................26
13.2 Distribution
Upon
Dissolution..................................................................27
13.3 Distributions in
Cash or in
Kind...............................................................28
13.4 Time for
Liquidation,
etc......................................................................28
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13.5 General Partner
and Members of MMC Not Personally Liable for Return of Capital
Contributions...28
13.6 Reorganization
of the
Partnership..............................................................29
SECTION 14
DEFINITIONS...........................................................................31
SECTION 15
AMENDMENTS............................................................................37
SECTION 16
MISCELLANEOUS
PROVISIONS..............................................................37
16.1
Notices........................................................................................37
16.2
Counterparts...................................................................................38
16.3 Table of
Contents and
Headings.................................................................38
16.4 Successors and
Assigns.........................................................................38
16.5
Severability...................................................................................38
16.6
Non-Waiver.....................................................................................38
16.7 Applicable Law
(Submission to
Jurisdiction)....................................................39
16.8
Confidentiality................................................................................39
16.9 Survival of
Certain
Provisions.................................................................39
16.10 Waiver of
Partition............................................................................40
16.11
Currency.......................................................................................40
16.12 Entire
Agreement...............................................................................40
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This Amended and Restated Limited Partnership Agreement (as from
time
to time amended, restated, supplemented or
otherwise modified, this "AGREEMENT")
of TRIDENT III ESC, L.P., a Cayman Islands
exempted limited partnership (the
"PARTNERSHIP"), is made and entered into on
December 12, 2003 for the purpose of
amending and restating the initial Limited
Partnership Agreement of the
Partnership, dated __________ __, 2003 (the
"INITIAL AGREEMENT"). Capitalized
terms used herein without definition have
the meanings specified in Section 14.
SECTION 1
ORGANIZATION, ETC.
1.1 AMENDMENT AND RESTATEMENT OF THE INITIAL AGREEMENT; ADMISSION
OF
LIMITED PARTNERS. The General Partner, the
Initial Limited Partner and the
Persons listed in the records of the
Partnership as limited partners of the
Partnership (such Persons, in their
capacities as limited partners of the
Partnership, the "LIMITED PARTNERS" and,
together with the General Partner, the
"PARTNERS", both such terms to include any
Person hereafter admitted as a
Partner in accordance with the terms
hereof, and to exclude any Person that
ceases to be a Partner in accordance with
the terms hereof), hereby amend and
restate the Initial Agreement in its
entirety by deleting it and replacing it
with this Agreement. A Person shall be
admitted as a limited partner of the
Partnership at the time that this Agreement
and a Subscription Agreement are
executed by or on behalf of such Person and
accepted by the General Partner. Any
such admission shall be listed by the
General Partner in the register of
partnership interests of the Partnership
maintained at its registered office.
Upon the admission of the first Limited
Partner to the Partnership, the Initial
Limited Partner shall cease to be a partner
of the Partnership and the
Partnership shall return the original
capital contribution made by the Initial
Limited Partner, who shall have no further
rights or claims against, or
obligations as a partner of, the
Partnership.
1.2 NAME AND OFFICES. The name of the Partnership is Trident III
ESC,
L.P. The Partnership shall have its
registered office in the Cayman Islands at
the offices of Walkers SPV Limited, Walkers
House, Mary Street, P.O. Box 908 GT,
George Town, Grand Cayman, Cayman Islands,
at which shall be kept the records
required to be maintained under the
Partnership Law, at which the service of
process on the Partnership may be made and
to which all notices and
communications may be addressed. The
General Partner may designate from time to
time another office in the Cayman Islands
as the Partnership's registered
office. The General Partner may from time
to time maintain one or more other
offices within or without the United
States. The Partnership may from time to
time have such other office or offices
within or without the Cayman Islands as
may be designated by the General
Partner.
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1.3 PURPOSES. Subject to the other provisions of this Agreement,
the
purposes and business of the Partnership
are to co-invest (and, in connection
with such co-investments, to acquire, hold,
manage and Transfer Securities) with
Trident III, L.P., a Cayman Islands
exempted limited partnership (the
"INSTITUTIONAL FUND", and, together with
any other investment funds and separate
accounts organized and/or managed by MMC or
its Affiliates and authorized to
co-invest with the Institutional Fund, the
"PARALLEL FUNDS"), and to engage in
such other activities as the General
Partner deems necessary, advisable,
convenient or incidental thereto, to engage
in any business which may lawfully
be conducted by a limited partnership
formed pursuant to the Partnership Law,
and to carry on any activities relating
thereto or arising therefrom, including
anything incidental, ancillary or necessary
to the foregoing, PROVIDED that the
Partnership shall not undertake business
with the public in the Cayman Islands
other than so far as may be necessary for
the carrying on of the activities of
the Partnership exterior to the Cayman
Islands.
1.4 TERM. The term of the Partnership commenced on the date set
forth
in the statement (as it may be amended from
time to time, the "STATEMENT")
effecting its registration as an exempted
limited partnership pursuant to
Section 9 of the Partnership Law and shall
continue, unless the Partnership is
sooner dissolved, until the end of the term
of the Institutional Fund, including
as such term is extended pursuant to the
Institutional Fund Agreement (such term
of the Partnership, as so extended, being
referred to as the "TERM"), PROVIDED,
that the General Partner in its sole
discretion may extend such Term
Notwithstanding the expiration of the Term,
the Partnership shall continue until
notice of dissolution of the Partnership is
filed in accordance with Section
13.4 and in the manner provided in the
Partnership Law.
1.5 FISCAL YEAR. The Fiscal Year of the Partnership shall end on
the
31st day of December in each year. The
Partnership shall have the same Fiscal
Year for income tax and for financial and
partnership accounting purposes.
1.6 PARTNERSHIP POWERS. In furtherance of the purposes specified
in
Section 1.3 and without limiting the
generality of Section 2.1, the Partnership
and the General Partner, acting on behalf
of the Partnership or on its own
behalf and in its own name, as appropriate,
shall be empowered to do or cause to
be done any and all acts deemed by the
General Partner, in its sole discretion,
to be necessary, advisable, appropriate,
proper, convenient or incidental to or
for the furtherance of the purposes of the
Partnership including, without
limitation, the power and authority:
(a) to acquire, hold, manage and Transfer Securities or any
other investments made or other property or assets held by the
Partnership;
(b) to establish, have, maintain or close one or more offices
within or without the Cayman Islands and in connection therewith
to
rent or acquire office space and to engage personnel;
(c) to open, maintain and close bank and brokerage (including,
without limitation, margin) accounts, including, without
limitation, to
draw
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checks or other orders for the payment of moneys, to exchange
U.S.
dollars held by the Partnership into non-U.S. currencies and
vice
versa, to enter into currency forward and futures contracts, to
hedge
Portfolio Investments, and to invest such funds as are temporarily
not
otherwise required for Partnership purposes in Temporary
Investments;
(d) to bring, defend, settle and dispose of actions,
Proceedings at law or in equity or before any Governmental
Authority;
(e) to retain and remove consultants, custodians, attorneys,
placement agents, accountants, actuaries and such other agents
and
employees of the Partnership as it may deem necessary or advisable,
and
to authorize each such agent and employee to act for and on behalf
of
the Partnership;
(f) to retain the Manager as contemplated by Section 7 to
render investment advisory and managerial services to the
Partnership;
(g) to execute, deliver and perform its obligations under the
Subscription Agreements and any agreements to induce any Person
to
purchase limited partner interests in the Partnership, without
any
further act, approval or vote of any Partner;
(h) to make all elections, investigations, evaluations and
decisions, binding the Partnership thereby, that may, in the
sole
discretion of the General Partner, be necessary, appropriate,
desirable
or convenient for the acquisition, holding or disposition of
Securities
for the Partnership;
(i) to enter into, deliver, perform and carry out contracts
and agreements of every kind necessary or incidental to the offer
and
sale of limited partner interests in the Partnership, to the
acquisition, holding and Transfer of Securities, or otherwise, to
the
accomplishment of the Partnership's purposes, and to take or omit
to
take such other action in connection with such offer and sale,
with
such acquisition, holding or Transfer, or with the business of
the
Partnership as may be necessary, desirable or convenient to further
the
purposes of the Partnership;
(j) to borrow money and to issue guarantees; and
(k)
to carry on any other activities necessary to, in
connection with, or incidental to any of the foregoing or the
Partnership's business.
SECTION 2
THE GENERAL PARTNER
2.1 MANAGEMENT. The management, control and operation of and
the
determination of policy with respect to the
Partnership and its affairs shall be
vested exclusively in the General Partner
(acting directly or through its duly
appointed agents),
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which is hereby authorized and empowered on
behalf and in the name of the
Partnership, subject to Section 2.2 and the
other terms of this Agreement, to
carry out any and all of the objects and
purposes of the Partnership and to
perform all acts and enter into and perform
all contracts and other undertakings
that it may in its sole discretion deem
necessary, advisable, convenient or
incidental thereto. The General Partner may
exercise on behalf of the
Partnership, and may delegate to the
Manager, all of the powers set forth in
Section 1.6, PROVIDED, that the management
and the conduct of the activities of
the Partnership shall remain the sole
responsibility of the General Partner and
all decisions relating to the selection and
disposition of the Partnership's
investments shall be made exclusively by
the General Partner in accordance with
this Agreement. The General Partner is
hereby authorized to appoint a successor
general partner.
2.2 LIMITATIONS ON THE GENERAL PARTNER. The General Partner shall
not:
(a) do any act in contravention of any applicable law or
regulation, or any provision of this Agreement or of the
Statement;
(b) possess Partnership property for other than a Partnership
purpose;
(c) admit any Person as a general partner of the Partnership
except as permitted by this Agreement and the Partnership Law;
(d) admit any Person as a Limited Partner except as permitted
by this Agreement and the Partnership Law;
(e) Transfer its interest in the Partnership except as
permitted by this Agreement and the Partnership Law; or
(f) permit the registration or listing of interests in the
Partnership on an "established securities market," as such term is
used
in Treasury Regulations section 1.7704-1.
2.3 RELIANCE BY THIRD PARTIES. In dealing with the General Partner
and
its duly appointed agents (including,
without limitation, the Manager), no
Person shall be required to inquire as to
the General Partner's or any such
agent's authority to bind the
Partnership.
2.4 FEES AND EXPENSES. (a) The Partnership shall not pay any
management
fee, carried interest or other similar fee
or performance incentive to the
General Partner, the Manager, MMC or any of
their respective Affiliates.
(b) All expenses relating to the organization of the
Partnership shall be paid by the Partnership and shall be allocated
to
all Partners in proportion to their Capital Commitments.
(c) The Partnership shall pay its PRO RATA share of actual
out-of-pocket expenses of investigating potential investment
opportunities and monitoring portfolio companies, such as
travel,
legal, auditing, consulting, accounting,
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actuarial and other professional fees or third-party expenses, in
all
cases to the extent not reimbursed by others. The Partnership shall
pay
all extraordinary expenses (such as litigation) and all costs
and
expenses relating to the Partnership's activities, including, but
not
limited to, legal, auditing, consulting, accounting, tax
preparation,
custodial fees and costs of reports to and meetings of the
Partners.
2.5 CONFLICTS OF INTEREST. (a) GENERAL. While the General Partner
and
the Manager intend to avoid situations
involving conflicts of interest, each
Limited Partner acknowledges that there may
be situations in which the interests
of the Partnership, with respect to a
Portfolio Company or otherwise, may
conflict with the interests of the General
Partner, the Manager or their
respective Affiliates. Each Limited Partner
agrees that the activities of the
General Partner, the Manager and their
respective Affiliates specifically
authorized by or described in this
Agreement or the Memorandum may be engaged in
by the General Partner, the Manager or any
such Affiliate, as the case may be,
and shall not, in any case or in the
aggregate, be deemed a breach of this
Agreement or any duty owed by any such
Person to the Partnership or any Partner.
On any issue involving an actual conflict
of interest not provided for elsewhere
in this Agreement, each of the General
Partner and the Manager shall take such
actions as are determined in good faith by
the Manager or the General Partner,
as the case may be, to be necessary or
appropriate to ameliorate any such
conflict of interest.
(b) OTHER FUNDS. MMC, the General Partner, the Manager and any
of their respective Affiliates may organize, sponsor or manage
private
investment funds and separate accounts in addition to the
Partnership
(such funds and accounts, including any Parallel Funds, the
"OTHER
FUNDS"), including Other Funds having primary investment objectives
and
policies substantially the same as those of the Partnership.
Investment
opportunities suitable for the Partnership shall be allocated among
the
Partnership and the Other Funds by the general partner of the
Institutional Fund. The agreements governing the Other Funds
may
include restrictions on activities of MMC or its Affiliates that
would
otherwise be permitted under this Section 2.5, or may subject
such
activities to conditions. The General Partner shall afford the
Partnership the benefits of any such restrictions or conditions to
the
extent it deems appropriate.
(c) CERTAIN CONTRACTS. Subject to the other provisions of this
Agreement, the General Partner or the Manager may cause the
Partnership
to enter into contracts and transactions with MMC or any of its
Affiliates (including the Manager), PROVIDED that the General
Partner
shall have determined in good faith that the terms of any such
contract
or transaction are commercially reasonable to the Partnership.
(d) OTHER RESTRICTIONS. Notwithstanding any other provision of
this Agreement, the Partnership's investment activities shall at
all
times be conducted in accordance with the conditions of any order
under
Section 6(b) of the Investment Company Act that is from time to
time
applicable to the Partnership. Each proposed transaction involving
the
Partnership otherwise prohibited by
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Section 17(a) or Section 17(d) of the Investment Company Act and
Rule
17d-1 thereunder (the "SECTION 17 TRANSACTIONS") shall be effected
only
if the General Partner makes such determinations as are required by
any
such order. The General Partner shall record and preserve a
description
of each Section 17 Transaction, its findings, the information
or
materials upon which its findings are based and the basis therefor.
All
such records shall be maintained for the life of the Partnership
and at
least two years thereafter. In connection with Section 17
Transactions,
the General Partner shall adopt, and periodically review and
update,
procedures designed to ensure that reasonable inquiry is made,
prior to
the consummation of any such transaction, with respect to the
possible
involvement in the transaction of any affiliated person or promoter
of
the Partnership, or any affiliated person of such a person or
promoter.
In any case where purchases or sales are made from or to an
entity
affiliated with the Partnership by reason of a 5% or more
investment in
such entity by a director, officer or employee of MMC, such
individual
shall not participate in the General Partner's determination of
whether
or not to effect such purchase or sale.
2.6 LIABILITY OF THE GENERAL PARTNER AND THE MANAGER. (a) Except
as
otherwise provided in the Partnership Law,
the General Partner has the
liabilities of a partner in a partnership
without limited partners to (i)
subject to the other provisions of this
Agreement, the Partnership and the other
Partners and (ii) Persons other than the
Partnership and the other Partners. No
Covered Person shall be liable to the
Partnership or any Partner for any act or
omission taken or suffered by any such
Covered Person in good faith. No Partner
shall be liable to the Partnership or any
Partner for any action taken by any
other Partner. To the extent that, at law
or in equity, a Covered Person has
duties and liabilities to the Partnership
or to the Partners, such Covered
Person acting under this Agreement or
otherwise shall not be liable to the
Partnership or any Partner for its good
faith reliance on the provisions of this
Agreement. The provisions of this
Agreement, to the extent that they expressly
restrict, replace or modify the duties and
liabilities of a Covered Person
otherwise existing at law or in equity, are
agreed by the Partners to restrict,
replace or modify such other duties and
liabilities of such Covered Person.
(b) RELIANCE. A Covered Person shall incur no liability in
acting upon any signature or writing believed by such Covered
Person to
be genuine, may rely on a certificate signed by an officer of
any
Person in order to ascertain any fact with respect to such Person
or
within such Person's knowledge and may rely on an opinion of
counsel
selected by such Covered Person with respect to legal matters.
Each
Covered Person may act directly or through its agents or
attorneys.
Each Covered Person may consult with counsel, appraisers,
engineers,
accountants, actuaries, auditors and other skilled Persons of
its
choosing, and shall not be liable for anything done, suffered
or
omitted in good faith reliance upon the advice of any of such
Persons.
No Covered Person shall be liable to the Partnership or any Partner
for
any error of judgment made in good faith by a responsible officer
or
officers of such Covered Person. Except as otherwise provided in
this
Section 2.6, no Covered Person shall be liable to the Partnership
or
any Partner for any mistake of fact or judgment by such Covered
Person
in
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conducting the affairs of the Partnership or otherwise acting
in
respect of and within the scope of this Agreement.
(c) DISCRETION. Whenever in this Agreement the General Partner
or the Manager is permitted or required to make a decision (i) in
its
"sole discretion" or "discretion" or under a grant of similar
authority
or latitude, the General Partner or the Manager, as the case may
be,
shall be entitled to consider only such interests and factors as
it
deems appropriate, including, without limitation, its interests,
or
(ii) in its "good faith" or under another expressed standard,
the
General -- Partner or the Manager, as the case may be, shall act
under
such express standard and shall not be subject to any other or
different standard imposed by this Agreement or any other agreement
or
by relevant provisions of law or in equity or otherwise. If any
questions should arise with respect to the operation of the
Partnership, which are not specifically provided for in this
Agreement
or the Partnership Law, or with respect to the interpretation of
this
Agreement, the General Partner is hereby authorized to make a
final
determination with respect to any such question and to interpret
this
Agreement in good faith, and its determination and interpretation
so
made shall be final and binding on all parties.
SECTION 3
LIMITED PARTNERS
3.1 ELIGIBILITY. Each Limited Partner (other than MMC and its
Affiliates) must, as a condition of
partnership, qualify as an Eligible Employee
(as determined by the General Partner in
its sole discretion).
3.2 NO PARTICIPATION IN MANAGEMENT, ETC. No Limited Partner, in
its
capacity as a limited partner of the
Partnership, shall take part in the
management or control of the Partnership's
affairs, transact any business in the
Partnership's name or have the power to
sign documents for or otherwise bind the
Partnership. No Limited Partner shall have
the right to vote for the election,
removal or replacement of the General
Partner, except that, upon an event
causing the immediate dissolution of the
Partnership pursuant to Section 15 of
the Partnership Law or Section 13.1 of this
Agreement, the Limited Partners may
vote to unanimously elect one or more new
general partners of the Partnership
pursuant to Section 15 of the Partnership
Law.
3.3 LIMITATION OF LIABILITY. Except as may otherwise be provided
herein
or by the Partnership Law, the liability of
each Limited Partner is limited to
its Capital Commitment.
3.4 NO PRIORITY, ETC. No Limited Partner shall have priority over
any
other Limited Partner either as to the
return of the amount of its Capital
Contribution to the Partnership, or as to
any allocation of income, gain,
deduction or loss.
3.5 FURTHER ACTIONS OF THE LIMITED PARTNERS. Each Limited Partner
shall
execute and deliver such other
certificates, agreements and documents, and take
such
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other actions, as may reasonably be
requested by the General Partner in
connection with the formation of the
Partnership and the achievement of its
purposes, including, without limitation,
(A) any documents that the General
Partner deems necessary or appropriate to
form, qualify or continue the
Partnership as a limited partnership in all
jurisdictions in which the
Partnership has an office or conducts or
plans to conduct business and (B) all
such agreements, certificates, tax
statements and other documents as may be
required to be filed in respect of the
Partnership.
SECTION 4
INVESTMENTS
4.1 INVESTMENTS IN PORTFOLIO COMPANIES. (a) GENERAL. The
Partnership
shall co-invest (and, in connection with
such co-investments, acquire, hold,
manage and Transfer Securities) with the
Parallel Funds to the extent and in the
manner determined by the general partner of
the Institutional Fund pursuant to
the Institutional Fund Agreement, PROVIDED
that in all instances the Partnership
shall co-invest with the Parallel Funds PRO
RATA (allowing for rounding) on the
basis of committed capital in the same
class or classes of Securities acquired
by the Parallel Funds on the same terms and
at the same time as the Parallel
Funds, except that the Partnership may
purchase from the Parallel Funds its PRO
RATA share of any portfolio investment
acquired by the Parallel Funds prior to a
Closing Date at the acquisition cost to the
Parallel Funds, plus interest
(calculated from the date the Parallel
Funds acquired such investment) at a rate
per annum equal to the Prime Rate plus two
percent (2%).
(b) REINVESTMENT. Proceeds from the disposition of Bridge
Financings, Temporary Investments and Portfolio Investments may, in
the
sole discretion of the General Partner, be retained and reinvested
by
the Partnership to the same extent that the Institutional Fund
is
permitted by the Institutional Fund Agreement to reinvest proceeds
from
the disposition of such financings and investments;
(c) PARTICIPATION. The Partners shall participate in Bridge
Financings and Portfolio Investments in proportion to their
Available
Capital Commitments.
4.2 SPECIAL INVESTMENT VEHICLE; BLOCKER STRUCTURES. (a) If the
General
Partner determines for legal, tax,
regulatory or other reasons that it is
appropriate for any or all of the Partners
to participate in one or more
investments, each of which would be a
Portfolio Investment if it were made by
the Partnership, through an entity other
than the Partnership, the General
Partner may structure the making of such
investment or investments outside of
the Partnership by requiring each such
Partner to contribute capital to an
alternative entity (each, a "SPECIAL
INVESTMENT VEHICLE") that, in lieu of the
Partnership, shall invest in such
investment or investments. In such event, (i)
each such Partner shall make a capital
commitment directly to such Special
Investment Vehicle and such capital
commitment shall reduce the Capital
Commitment of such Partner to the same
extent, and (ii) each such Limited
Partner shall participate in the Special
Investment Vehicle pursuant to the
Power of Attorney executed by such Limited
Partner, and
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documentation with respect to such Special
Investment Vehicle shall be executed
and delivered on behalf of each such
Limited Partner by the General Partner
pursuant to such Power of Attorney. The
economic terms of the organizational
documents of any Special Investment Vehicle
shall be substantially similar in
all material respects to those of the
Partnership.
(b) If the General Partner determines, in its sole discretion,
that a Portfolio Investment may give rise to material taxable
income
which is (or is taken into account as if it were) effectively
connected
with the conduct of a trade or business within the United States to
a
Limited Partner subject to tax on such income under section 871(b)
or
897 of the Code, the General Partner may cause the Partnership
to
invest in such Portfolio Investment through an entity treated as
a
corporation for United States federal income tax purposes, in
which
event the General Partner may utilize one or more Special
Investment
Vehicles and/or subsidiaries of the Partnership.
4.3 TEMPORARY INVESTMENTS. The General Partner may invest funds
held by
the Partnership in Temporary Investments
pending investment in Portfolio
Investments, pending distribution or for
any other purpose.
SECTION 5
CAPITAL CONTRIBUTIONS AND CAPITAL COMMITMENTS
5.1 CAPITAL CONTRIBUTIONS AND CAPITAL COMMITMENTS OF THE PARTNERS.
(a)
Subject to Sections 5.4 and 10.1(b), each
Partner shall, to the extent requested
by the General Partner, make Capital
Contributions to the Partnership in the
aggregate amount of their respective
Capital Commitments as set forth in such
Partner's Subscription Agreement and/or as
reflected in the records of the
Partnership.
(b) Such Capital Contributions shall be drawn down in
installments, each of which shall be contributed by each Partner
in
United States dollars. The first installment (in an amount equal
to
twenty percent (20%) of such Partner's Capital Commitment) shall
be
paid on the Closing Date on which such Partner is admitted to
the
Partnership. Subsequent capital installments (each in an amount
equal
to at least ten percent (10%) of such Partner's Capital Commitment,
but
never in an amount greater than such Partner's Remaining
Capital
Commitment) shall be paid in separate Drawdowns in the sole
discretion
of the General Partner, subject to the following terms and
conditions:
(i) The General Partner shall provide each Partner
with a notice (the "DRAWDOWN NOTICE") at least thirty days
prior to the date of Drawdown.
(ii) Each Partner shall pay to the Partnership the
Capital Contribution of such Partner as specified in the
Drawdown Notice in cash
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or other immediately available funds, by the date specified in
the applicable Drawdown Notice.
5.2 DEFAULTING PARTNER. If any Limited Partner fails to contribute,
in
a timely manner, any portion of the Capital
Commitment required to be
contributed by such Limited Partner and any
such failure continues for ten
Business Days after receipt of written
notice thereof from the General Partner
(a "DEFAULT"), then such Limited Partner (a
"DEFAULTING PARTNER") may be
designated by the General Partner as in
default and shall thereafter be subject
to the provisions of this Section 5.2. The
General Partner may choose not to
designate any Limited Partner as a
Defaulting Partner and may agree to waive or
permit the cure of any Default by a Limited
Partner, subject to such conditions
as the General Partner and the Defaulting
Partner may agree upon. In the event
that a Limited Partner becomes a Defaulting
Partner, (i) such Defaulting
Partner's Remaining Capital Commitment
shall be deemed to be zero, (ii) such
Defaulting Partner shall have no interest
in future Portfolio Investments and no
right to contribute capital to future
Portfolio Investments, and (iii) such
Limited Partner shall be entitled to
receive only one-half of the total
distributions (including, without
limitation, distributions previously made)
that it would have been entitled to receive
had it not become a Defaulting
Partner, with the other one-half of such
distributions to be applied when and as
amounts become distributable, FIRST to the
Partnership in an amount equal to
such Limited Partner's PRO RATA share of
the accrued and unpaid and/or
anticipated expenses of the Partnership
(including any amounts payable upon
dissolution or to fund indemnification
obligations), and SECOND, to all Partners
other than Defaulting Partners in
accordance with their respective Capital
Commitments; PROVIDED, that the General
Partner, MMC, or any of their respective
Affiliates (other than any natural person)
shall have an option to assume the
Remaining Capital Commitments of the
Defaulting Partner. From time to time it
may be necessary (because of irregular or
insufficient cashflows or otherwise)
for the Partnership, the General Partner or
the Manager to advance payment of
expenses allocable to the interest of a
Defaulting Partner whose Remaining
Capital Commitment has been deemed to be
zero pursuant to this Section 5.2 and,
before any amounts may be distributed by
the Partnership pursuant to the
immediately preceding sentence, the amount
of any such payment, plus interest
(at the Applicable Federal Rate, determined
on and calculated from the date of
such payment), shall be deducted from
future distributions by the Partnership in
respect of such Defaulting Partner's
interest and paid by the Partnership to the
Person that made such advance payment. The
General Partner shall make such
adjustments, including, without limitation,
adjustments to the Capital Accounts
of the Partners (including, without
limitation, the Defaulting Partners), as it
determines to be appropriate to give effect
to the provisions of this Section
5.2. On any date following a Default by a
Defaulting Partner, such Defaulting
Partner shall be required to pay to the
Partnership all amounts that such
Defaulting Partner would be required to
contribute to the Partnership if the
Partnership were dissolved as of such date
(and its assets liquidated at fair
market value as of the most recent
valuation date). Notwithstanding any other
provision of this Section 5.2, the
obligations of any Defaulting Partner to the
Partnership hereunder shall not be
extinguished as a result of the transactions
contemplated by this Section 5.2. Whenever
the vote, consent or decision of a
Limited Partner or of the Limited Partners
is required or permitted pursuant to
this Agreement or under the Partnership
Law, a Defaulting Partner shall not be
entitled to
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participate in such vote or consent, or to
make such decision, and such vote,
consent or decision shall be tabulated or
made as if such Defaulting Partner
were not a Limited Partner.
5.3 FURTHER ACTIONS. To the extent deemed necessary in the sole
discretion of the General Partner, the
General Partner shall cause this
Agreement to be amended, without the need
for any further act, vote or approval
of any other Partner or Persons, to reflect
as appropriate the occurrence of any
of the transactions referred to in this
Section 5 or in Section 11.
5.4 EXCUSED INVESTMENTS. The General Partner may, in its sole
discretion, excuse any Limited Partner from
participation in any investment of
the Partnership if the General Partner has
determined, in its sole discretion,
that such investment may constitute a
conflict of interest for such Limited
Partner.
SECTION 6
CAPITAL ACCOUNTS; DISTRIBUTIONS
6.1
CAPITAL ACCOUNTS. There shall be established on the books and
records of the Partnership a capital
account (a "CAPITAL ACCOUNT") for each
Partner.
6.2 ADJUSTMENTS TO CAPITAL ACCOUNTS. As of the last day of each
Period,
the balance in each Partner's Capital
Account shall be adjusted by (A)
increasing such balance by (i) such
Partner's allocable share of each item of
the Partnership's income and gain for such
Period (allocated in accordance with
Section 6.8) and (ii) the Capital
Contributions, if any, made by such Partner
during such Period and (B) decreasing such
balance by (i) the amount of cash or
the Value of Securities or other property
distributed or deemed distributed to
such Partner pursuant to Sections 6 or 13
and (ii) such Partner's allocable
share of each item of the Partnership's
deduction or loss for such Period
(allocated in accordance with Section 6.8).
Each Partner's Capital Account shall
be further adjusted with respect to any
special allocations or adjustments
pursuant to this Agreement.
6.3 DISTRIBUTIONS. Except as otherwise provided in this
Agreement
(including in Section 4.1(b)),
Distributable Cash shall be distributed to the
Partners in proportion to their Sharing
Percentages for the Bridge Financing,
Temporary Investment or Portfolio
Investment to which such Distributable Cash is
attributable.
6.4 OVERRIDING PROVISION. Notwithstanding any other provision of
this
Agreement, distributions shall be made only
to the extent of Available Assets
and in compliance with the Partnership
Law.
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6.5 DISTRIBUTIONS IN KIND. Prior to the dissolution of the
Partnership,
distributions may be in cash or marketable
Securities. In connection with the
liquidation and dissolution of the
Partnership, distributions may also include
restricted Securities or other assets of
the Partnership. In the event a
distribution of Securities or other assets
is made, such Securities or other
assets shall be deemed to have been sold at
their Value and the proceeds of such
sale shall be deemed to have been
distributed to the Partners for all purposes
of this Agreement. Subject to Section 13.2,
Securities or other assets
distributed in kind shall be distributed in
proportion to the aggregate amounts
that would be distributed to each Partner
pursuant to Section 6.3, such
aggregate amounts to be estimated in the
good faith judgment of the General
Partner. The General Partner may cause
certificates evidencing any Securities to
be distributed to be imprinted with legends
as to such restrictions on Transfers
that it may deem necessary or appropriate,
including, without limitation,
legends as to applicable United States
federal or state or non-U.S. Securities
laws or other legal or contractual
restrictions, and may require any Partner to
whom Securities are to be distributed to
agree in writing (i) that such
Securities shall not be transferred except
in compliance with such restrictions
and (ii) to such other matters as the
General Partner may deem necessary or
appropriate.
6.6 NEGATIVE CAPITAL ACCOUNTS. No Limited Partner shall, and except
as
otherwise required by law the General
Partner shall not, be required to make up
a negative balance in its Capital
Account.
6.7 NO WITHDRAWAL OF CAPITAL. Except as otherwise expressly
provided
herein, no Partner shall have the right to
withdraw capital from the Partnership
or to receive any distribution of or return
on such Partner's Capital
Contributions.
6.8 ALLOCATIONS. Each item of income, gain, loss, credit and
deduction
of the Partnership (determined in
accordance with U.S. tax principles as applied
to the maintenance of capital accounts)
shall be allocated among the Capital
Accounts of the Partners with respect to
each Period as of the end of such
Period in a manner that as closely as
possible gives economic effect to the
provisions of Sections 6 and 13 and the
other relevant provisions of this
Agreement.
6.9 TAX MATTERS. Except as otherwise provided herein, the
income,
gains, losses, credits and deductions
recognized by the Partnership shall be
allocated among the Partners, for United
States federal, state and local income
tax purposes, to the extent permitted under
the Code and the Treasury
Regulations, in the same manner that each
such item is allocated to the
Partners' Capital Accounts. Notwithstanding
the foregoing, the General Partner
shall have the power in its sole discretion
to make such allocations for United
States federal, state and local income tax
purposes as may be necessary to
maintain substantial economic effect, or to
ensure that such allocations are in
accordance with the interests of the
Partners in the Partnership, in each case
within the meaning of the Code and the
Treasury Regulations. Tax credits shall
be allocated in good faith by the General
Partner. All matters concerning
allocations for United States federal,
state and local and non-U.S. income tax
purposes, including accounting procedures,
not expressly provided for by the
terms of this Agreement shall be determined
in good faith by the General
Partner. The General Partner may, in its
sole discretion, cause the
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<PAGE>
Partnership to make the election under
section 754 of the Code. The General
Partner is hereby designated as the "tax
matters partner" of the Partnership, as
provided in the Treasury Regulations
pursuant to section 6231 of the Code (and
any similar provisions under any other
state or local or non-U.S. tax laws).
Each Partner hereby consents to such
designation and agrees that upon the
request of the General Partner it shall
execute, certify, acknowledge, deliver,
swear to, file and record at the
appropriate public offices such documents as
may be necessary or appropriate to evidence
such consent. Either the General
Partner shall have executed and filed a
U.S. Internal Revenue Service Form 8832
prior to the date hereof electing to
classify the Partnership as a partnership
for U.S. federal income tax purposes
pursuant to section 301.7701-3 of the
Treasury Regulations as of a date no later
than the date hereof, or the General
Partner shall timely execute and file such
Form 8832 on or after the date hereof
electing to classify the Partnership as a
partnership for United States federal
income tax purposes as of a date no later
than the date hereof, and the General
Partner is hereby authorized to execute and
file such Form for all of the
Partners. The General Partner shall not
subsequently elect to change such
classification. The General Partner is
hereby authorized to execute and file any
comparable form or document required by any
applicable United States state or
local tax law in order for the Partnership
to be classified as a partnership
under such tax law.
6.10 WITHHOLDING TAXES. (a) AUTHORITY TO WITHHOLD; TREATMENT OF
WITHHELD TAX. Notwithstanding any other
provision of this Agreement, each
Partner hereby authorizes the Partnership
to withhold and to pay over, or
otherwise pay, any withholding or other
taxes payable by the Partnership or any
of its Affiliates (pursuant to the Code or
any provision of United States
federal, state, or local or foreign tax
law) with respect to such Partner or as
a result of such Partner's participation in
the Partnership (including as a
result of a distribution in kind). If and
to the extent that the Partnership
shall be required to withhold or pay any
such withholding or other taxes, such
Partner shall be deemed for all purposes of
this Agreement to have received a
payment from the Partnership as of the time
such withholding or other tax is
required to be paid, which payment shall be
deemed to be a distribution of
Distributable Cash pursuant to the relevant
clause of Section 6.3 with respect
to such Partner's interest in the
Partnership to the extent that such Partner
(or any successor to such Partner's
interest in the Partnership) would have
received a cash distribution but for such
withholding. To the extent that such
deemed payment exceeds the cash
distribution that such Partner would have
received at such time but for such
withholding, the General Partner shall notify
such Partner as to the amount of such
excess and such Partner shall make a
prompt payment to the Partnership of such
amount by wire transfer. The
Partnership may hold back from any
distribution in kind property having a Value
equal to the amount of the taxes withheld
or otherwise paid until the
Partnership has received such payment.
(b) WITHHOLDING TAX RATE. Any withholdings referred to in this
Section 6.10 shall be made at the maximum applicable statutory
rate
under the applicable tax law unless the General Partner shall
have
received an opinion of counsel or other evidence, satisfactory to
the
General Partner, to the effect that a lower rate is applicable, or
that
no withholding is applicable.
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(c) WITHHOLDING FROM DISTRIBUTIONS TO THE PARTNERSHIP. In the
event that the Partnership receives a distribution or payment from
or
in respect of which tax has been withheld, the Partnership shall
be
deemed to have received cash in an amount equal to the amount of
such
withheld tax, and each Partner shall be treated as having received
as a
distribution of Distributable Cash pursuant to the relevant clause
of
Section 6.3 the portion of such amount that is attributable to
such
Partner's interest in the Partnership as equitably determined by
the
General Partner. To the extent that such deemed distribution
exceeds
the cash distribution that such Partner would have received but
for
such withholding, the General Partner shall notify such Partner as
to
the amount of such excess and such Partner shall make a prompt
payment
to the
