EXHIBIT 3.120
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AGREEMENT OF LIMITED PARTNERSHIP
OF
CALPINE FREESTONE ENERGY, LP
BY AND BETWEEN
CALPINE FREESTONE ENERGY GP, LLC
AND
CPN FREESTONE, INC.
DATED AS OF
JANUARY 31, 2003
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TABLE OF CONTENTS
Page
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ARTICLE 1 GENERAL TERMS......................................................... 1
1.1 Name .......................................................... 1
1.2 Registered Agent and Office.................................... 1
1.3 Term........................................................... 1
1.4 Purpose........................................................ 1
1.5 Filings........................................................ 2
1.6 Definitions and Interpretation................................. 2
ARTICLE 2 CAPITALIZATION........................................................ 5
2.1 Capital Accounts............................................... 5
2.2 Initial Capital Contributions.................................. 6
2.3 Additional Contributions....................................... 6
2.4 Loans.......................................................... 6
2.5 No Partnership Interest on Capital Account Balances............ 6
2.6 Withdrawal..................................................... 6
ARTICLE 3 PROFIT AND LOSS ALLOCATIONS........................................... 7
3.1 Allocation of Profits and Losses............................... 7
3.2 Elimination of Book/Tax Disparities............................ 7
3.3 Consistency with Allocation Rules.............................. 7
ARTICLE 4 DISTRIBUTIONS......................................................... 7
4.1 Distributions.................................................. 7
4.2 Liquidating Distributions...................................... 7
4.3 Other Distributions............................................ 7
ARTICLE 5 MANAGEMENT............................................................ 7
5.1 Generally.................,..,................................. 7
5.2 Composition of Board; Meetings and Approval
Requirements................................................... 8
5.3 Partner Approval Rights........................................ 9
5.4 Partner Meeting and Approval Procedures........................ 9
5.5 Officers....................................................... 10
5.6 Liability and Indemnification.................................. 10
5.7 Partnership Funds.............................................. 11
TABLE OF CONTENTS, cont'd
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ARTICLE 6 ACCOUNTING AND RECORDS; TAX MATTERS................................... 11
6.1 Fiscal Year.................................................... 11
6.2 Method of Accounting........................................... 11
6.3 Books and Records and Inspection............................... 12
6.4 Tax Matters.................................................... 12
ARTICLE 7 THE PARTNERS.......................................................... 12
7.1 Admission of New Partners...................................... 12
7.2 Transfers of Partnership Interests............................. 12
ARTICLE 8 DISSOLUTION AND TERMINATION........................................... 13
8.1 No Termination................................................. 13
8.2 Events of Dissolution.......................................... 13
8.3 Procedures Upon Dissolution.................................... 13
8.4 Termination of Partnership..................................... 14
ARTICLE 9 NATURE OF PARTNERSHIP INTERESTS....................................... 14
9.1 Partnership Interests Shall Be Securities...................... 14
9.2 Issuance of Certificates....................................... 15
9.3 Registered Owner............................................... 15
ARTICLE 10 MISCELLANEOUS PROVISIONS............................................. 15
10.1 Disclaimer of Agency........................................... 15
10.2 Amendment...................................................... 15
10.3 Notices........................................................ 15
10.4 Consequential Damages.......................................... 16
10.5 Counterparts................................................... 16
10.6 Governing Law.................................................. 17
10.7 Binding Effect.,............................................... 17
10.8 Partial Invalidity............................................. 17
10.9 Captions....................................................... 17
10.10 No Rights in Third Parties..................................... 17
10.11 No Title to Partnership Property............................... 17
10.12 Further Assurances; Additional Documents....................... 17
10.13 Persons Not Named.............................................. 18
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AGREEMENT OF LIMITED PARTNERSHIP
OF
CALPINE FREESTONE ENERGY, LP
THIS AGREEMENT OF LIMITED PARTNERSHIP (this "AGREEMENT"), is made as of
January 31,2003, by and between Calpine Freestone Energy GP, LLC, a Delaware
limited liability company ("▇▇▇▇▇▇▇▇▇ ▇▇"), and CPN Freestone, Inc., a Delaware
corporation ("CPN FREESTONE"). ▇▇▇▇▇▇▇▇▇ ▇▇ and CPN Freestone may hereinafter be
referred to individually as a "PARTNER" and collectively as the "PARTNERS".
WITNESSETH:
WHEREAS, the Partners have organized Calpine Freestone Energy, LP, a
Delaware limited partnership (the "PARTNERSHIP"), by filing a Certificate of
Limited Partnership (the "CERTIFICATE") with the Secretory of State of the State
of Delaware on January 29,2003; and
WHEREAS, the Partners desire to enter into this Agreement to provide
for the management of the affairs of the Partnership and the conduct of its
business.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, desiring to be
legally bound hereby, agree as follows:
ARTICLE 1
GENERAL TERMS
1.1 NAME. The name of the Partnership shall be Calpine Freestone
Energy, LP.
1.2 REGISTERED AGENT AND OFFICE. The Partnership shall maintain
within the State of Delaware a registered agent for service of process on the
Partnership and a registered office in accordance with the provisions of the LP
Act.
1.3 TERM. The term of the Partnership began on the date of filing
of the Certificate with the Secretary of State of the State of Delaware (the
"FORMATION DATE"), and shall continue in perpetuity, unless the Partnership is
earlier dissolved in accordance with the provisions of Article 8.
1.4 PURPOSE. The purpose of the Partnership is to develop,
construct, finance, improve, operate and maintain electrical generation
facilities, and to engage in any other activities related or incidental thereto
or in anticipation thereof. The Board may expand or limit the scope of such
business as it deems necessary or appropriate from time to time.
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1.5 FILINGS. The Board shall cause to be filed all such
certificates, notices, statements or other instruments, and amendments thereto
under the laws of the State of Delaware and other applicable jurisdictions as
the Board may from time to time deem necessary or advisable for the operation of
the Partnership.
1.6 DEFINITIONS AND INTERPRETATION.
(a) DEFINITIONS. Unless otherwise required by the context
in which any capitalized term appears, or unless otherwise specifically defined
elsewhere in this Agreement, capitalized terms used in this Agreement shall have
the meanings set forth below.
"AFFILIATE" means, when used with reference to a specified Person, any
other Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by or is under common control with the Person specified.
For purposes of the foregoing, "control," "controlled by" and "under common
control with" with respect to any Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities,
partnership interests or other equity interests, or by contract or otherwise.
"AGREEMENT" has the meaning set forth in the preamble to this
Agreement, and includes all exhibits and schedules hereto.
"BOARD" has the meaning set forth in Section 5.1.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in New York, New York are required or authorized by
law or regulation to close.
"CAPITAL ACCOUNT" has the meaning set forth in Section 2.1.
"CARRYING VALUE" means, with respect to any asset of the Partnership,
the asset's adjusted basis as of the relevant date for U.S. Federal income tax
purposes, except as follows:
(a) the initial Carrying Value of any asset contributed
by a Partner to the Partnership shall be the gross fair market value of such
asset;
(b) the Carrying Values of all Partnership assets
(including intangible assets such as goodwill) shall be adjusted at the election
of the Board to equal their respective fair market values (determined on a gross
basis) as of the following times:
(i) the acquisition of an additional interest in
the Partnership by any new or existing Partner in exchange for more than a de
minimis capital contribution, within the meaning of Treasury Regulation section
1.704-1(b)(2)(iv)(f)(5)(1);
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(ii) the distribution by the Partnership to a
Partner of more than a de minimis amount of money or Partnership property as
consideration for an interest in the Partnership; and
(iii) the liquidation of the Partnership within
the meaning of Treasury Regulation section 1.704-1 (b)(2)(iv)(f)(5)(ii); and
(c) for purposes of subsections (a) and (b) above, fair
market value shall be as agreed by the Partners. If the Partners are unable to
so agree, fair market value shall be determined in the manner set forth in this
subsection (c), unless the Partners agree to use a different or modified
procedure. Within ten (10) Business Days of the date that the Partners fail to
agree on the fair market value of an asset, the Partners shall appoint an
investment bank or appraiser experienced in valuing assets of the type for which
fair market value is to be determined (any such investment bank or appraiser, an
"APPRAISER"). Within twenty (20) Business Days of the selection of the
Appraiser, the Appraiser shall determine the fair market value of the asset and
shall deliver its valuation of the asset to the Partners. The determination of
fair market value by the Appraiser shall constitute the established fair market
value of the asset and shall be final and binding upon the Partners; and
(d) if the Carrying Value of an asset has been determined
or adjusted pursuant to subsections (a), (b) or (c) above, such Carrying Value
thereafter shall be adjusted by the Depreciation taken into account with respect
to such asset for purposes of computing profits and losses and other items
allocated pursuant to Article 3.
The foregoing definition of Carrying Value is intended to comply with the
provisions of Treasury Regulation Section 1.704-1(b)(2)(iv) and shall be
interpreted and applied consistently therewith.
"CERTIFICATE" has the meaning set forth in the recitals of this
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"CONSENT" means the prior written consent of the indicated party to the
action requested, or the affirmative vote of the required parties to the extent
an action is approved pursuant to Section 5.4(a) at a meeting of the Partners.
"DEPRECIATION" means for each fiscal year or part thereof, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable for U.S. Federal income tax purposes with respect to an asset for such
year or other period, except that if the Carrying Value of an asset differs from
its adjusted basis for income tax purposes at the beginning of such year,
Depreciation shall be an amount that bears the same ratio to such Carrying Value
as the income tax depreciation, amortization or other cost recovery deduction
for such year bears to such adjusted tax basis; provided, however, that if the
income tax depreciation, amortization or other cost recovery deduction for such
year is zero, Depreciation shall be determined with reference to such Carrying
Value using any reasonable method determined by the Board.
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"FORMATION DATE" has the meaning set forth in Section 1.3.
"GAAP" means U.S. generally accepted accounting principles.
"GENERAL PARTNER" means Calpine Freestone Energy GP, LLC and any other
Person admitted as a general partner of the Partnership pursuant to this
Agreement.
"INDEMNITEE" has the meaning set forth in Section 5.6(a).
"LIMITED PARTNER" means CPN Freestone, Inc. and any other Person
admitted as a limited partner of the Partnership pursuant to this Agreement.
"LIQUIDATOR" has the meaning set forth in Section 8.3(b).
"LP ACT" means the Delaware Revised Uniform Limited Partnership Act, as
amended from time to time; provided, however, that if any amendment to the LP
Act, or any succeeding or successor law, is applicable to the Partnership only
if the Partnership has elected to be governed by the LP Act as so amended or by
such succeeding or successor law, as the case may be, the term "LP Act" shall
refer to the LP Act as so amended or to such succeeding or successor law only
after the appropriate election by the Board with the Consent of the Partners.
"PARTNER" means a General Partner or a Limited Partner, and "PARTNERS"
means the General Partner and the Limited Partner, together.
"PARTNERSHIP" has the meaning set forth in the recitals of this
Agreement.
"PARTNERSHIP INTEREST" means the entire legal and equitable ownership
interest of a Partner in the Partnership at any particular time.
"PARTNERSHIP INTEREST CERTIFICATE" means a certificate in the form of
Exhibit A attached hereto issued by the Partnership pursuant to Article 9 that
evidencesa Partner's interest in the Partnership.
"PERSON" means any individual, partnership, corporation, association,
business trust, limited liability company, or other entity.
"SHARING RATIO" means 1% for Calpine Freestone Energy GP, LLC in its
capacity as General Partner and 99% for CPN Freestone, Inc. in its capacity as a
Limited Partner.
"TAX MATTERS PARTNER" has the meaning set forth in Section 6.4(b).
"TRANSFER" means any sale, assignment, conveyance, encumbrance,
mortgage or pledge by a Partner of all or any portion of its Partnership
Interest, whether occurring voluntarily or by operation of law.
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"TREASURY REGULATIONS" means the regulations issued by the Treasury
Department pursuant to the Code.
"UCC" has the meaning set forth in Section 9.1.
"U.S." means the United States of America.
(b) INTERPRETATION. Reference to a given Section,
Subsection, Exhibit or Schedule is a reference to a Section, Subsection, Exhibit
or Schedule of this Agreement, unless otherwise specified. The terms "hereof "
"herein," "hereto," "hereunder" and "herewith" refer to this Agreement as a
whole. Except where otherwise expressly provided or unless the context otherwise
necessarily requires: (i) reference to a given agreement, instrument, statute or
regulation is a reference to that agreement, instrument, statute or regulation
as modified, amended, supplemented and restated from time to time, and, as to a
statute or regulation, any successor statute or regulation, (ii) accounting
terms have the meanings given to them by GAAP applied on a consistent basis by
the accounting entity to which they refer, (iii) references to "dollars" or "$"
shall mean the lawful currency of the U.S., (iv) reference to a Person includes
its successors and permitted assigns, (v) references to any term in this
Agreement when used in the singular shall have the same meanings when used in
the plural and vice versa, (vi) the masculine shall include the feminine and
neuter, and vice versa, and (vii) "includes" or "including" means "including,
for example and without limitation."
ARTICLE 2
CAPITALIZATION
2.1 CAPITAL ACCOUNTS.
(a) ESTABLISHMENT. A separate capital account (a "CAPITAL
ACCOUNT") shall be maintained for each Partner.
(b) CAPITAL ACCOUNT BALANCES. The Capital Account balance
of each Partner immediately after the Formation Date shall be equal to the
amount contributed to the Partnership by such Partner on or before such date
pursuant to Section 2.2, and such Capital Account shall thereafter be further
adjusted with respect to subsequent events as follows:
(i) increased by: (A) the aggregate amount of
such Partner's cash contributions to the Partnership; (B) the Carrying Value of
property contributed by such Partner to the Partnership, net of liabilities
secured by such property that the Partnership is considered to assume, or take
subject to, under Code section 752; and (C) profits and items of income and gain
allocated to such Partner pursuant to Section 3.1; and
(ii) decreased by: (A) cash distributions to such
Partner from the Partnership; (B) the Carrying Value of property distributed in
kind to such Partner,
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net of liabilities secured by such property that such Partner is deemed to
assume, or take subject to, under Code section 752; and (C) losses and items of
loss or deduction allocated to such Partner pursuant to Section 3.1.
(c) INTENT TO COMPLY WITH TREASURY REGULATIONS. The
foregoing provisions and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
section 1.704-1 (b), and shall be interpreted and applied in a manner consistent
with such regulation. To the extent such provisions are inconsistent with such
regulation or are incomplete with respect thereto, the provisions in this
Agreement relating to the maintenance of Capital Accounts shall be amended (with
the Consent of the Partners, which Consent shall not be unreasonably withheld)
in such manner as, in the opinion of independent recognized tax counsel for the
Partnership, is necessary or desirable, taking into account the economic
interests of the Partners as a whole and all other relevant factors, to avoid or
reduce such inconsistency or incompleteness without changing the amounts that
otherwise would be distributable to any Partner pursuant to this Agreement.
2.2 INITIAL CAPITAL CONTRIBUTIONS. The Partners shall make such
initial capital contributions to the Partnership as are agreed upon by the
Partners.
2.3 ADDITIONAL CONTRIBUTIONS. The Partners shall make additional
capital contributions to the Partnership as and when required by the Board,
provided that the Board shall make capital calls of the Partners, and the
Partners shall be required to make capital contributions to the Partnership,
only with the written consent of each Partner or otherwise in accordance with
procedures to be established by the Partners by agreement among them from time
to time. Except as set forth in the immediately preceding sentence, no Partner
shall be required to make any capital contribution to the Partnership on or
after the Formation Date, whether on liquidation of the Partnership, by reason
of a deficit Capital Account balance, or otherwise. A Partner may, with the
Consent of the Board, make additional capital contributions to the Partnership,
but no change in the Sharing Ratio of such Partner shall result from any such
contribution without the Consent of all Partners.
2.4 LOANS. Except as otherwise agreed between the Partners from
time to time, no Partner shall be required or permitted to lend any money to or
for the benefit of the Partnership.
2.5 NO PARTNERSHIP INTEREST ON CAPITAL ACCOUNT BALANCES. No
Partner shall be entitled to receive any interest on the balance in its Capital
Account.
2.6 WITHDRAWAL. No Partner may withdraw as a Partner of the
Partnership without the Consent of each other Partner.
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ARTICLE 3
PROFIT AND LOSS ALLOCATIONS
3.1 ALLOCATION OF PROFITS AND LOSSES. Each item of income, gain,
loss, deduction and credit of the Partnership for each fiscal year (or portion
thereof) shall be allocated to the Partners in accordance with their Sharing
Ratios.
3.2 ELIMINATION OF BOOK/TAX DISPARITIES. If any Partnership
property has a Carrying Value on the books of the Partnership different from its
adjusted tax basis to the Partnership for U.S. Federal income tax purposes
(whether by reason of the contribution of such property to the Partnership or
otherwise), allocations of taxable income, gain, loss and deduction under this
Article 3 with respect to such asset shall take account of any variation between
the adjusted tax basis of such asset for federal income tax purposes and its
Carrying Value in the same manner as under Code section 704(c) or the principles
set forth in Treasury Regulations section 1.704-1(b)(2)(iv)(g), as the case may
be, using the remedial method set forth in Treasury Regulation section
1,704-3(d), unless each of the Partners otherwise agrees.
3.3 CONSISTENCY WITH ALLOCATION RULES. Notwithstanding the terms
of Section 3.1, allocations of items described therein shall be made to the
Partners in the manner required by Treasury Regulations sections 1.704-1(b) and
1.704-2 in order for the allocations described in Section 3.1 to be respected
for U.S. Federal income tax purposes.
ARTICLE 4
DISTRIBUTIONS
4.1 DISTRIBUTIONS. From time to time, as and when determined by
the Board, the Partnership shall make distributions to the Partners in
accordance with their Sharing Ratios from funds legally available for such
purpose.
4.2 LIQUIDATING DISTRIBUTIONS. Distributions to the Partners of
cash or property arising from a liquidation of the Partnership shall be made in
accordance with the Capital Account balances of the Partners, as provided in
Section 8.3(d)(ii).
4.3 OTHER DISTRIBUTIONS. Except as provided in Section 4.1 or
Section 4.2 or otherwise in this Agreement, no Partner shall be entitled to
receive any distribution from the Partnership without the consent of all other
Partners.
ARTICLE 5
MANAGEMENT
5.1 GENERALLY. The Partnership shall have a board of directors
(the "BOARD"), comprised of one or more members (each, a "DIRECTOR"), all of
whom shall be appointed by the General Partner. The number of Directors
comprising the Board shall initially be
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two (2), and shall thereafter be set by the General Partner from time to time.
The overall management of the Partnership shall be vested exclusively in the
Board. Except as provided in Section 5.3 or as otherwise provided in this
Agreement, the General Partner hereby specifically delegates to the Board its
rights and powers to manage and control the business and affairs of the
Partnership in accordance with the provisions of Section 17-403 of the LP Act.
5.2 COMPOSITION OF BOARD; MEETINGS AND APPROVAL REQUIREMENTS.
(a) ELECTION AND REMOVAL OF DIRECTORS. Upon election by
the General Partner, each Director shall hold office until death, disability,
resignation or removal at any time at the pleasure of the General Partner. If a
vacancy occurs on the Board, the General Partner shall, as soon as practicable
after the occurrence of such vacancy, elect a successor so that the Board
remains fully constituted at all times.
(b) MEETINGS AND APPROVAL REQUIREMENTS.
(i) REGULAR MEETINGS. Regular meetings of the
Board shall be held as the Board, by vote, may determine and, if so determined,
no notice thereof need be given. Special meetings of the Board shall be held at
the written request of any Director.
(ii) TELEPHONIC MEETINGS. Any meeting of the
Board may be held by conference telephone call or through similar communications
equipment by means of which all Persons participating in the meeting are able to
hear each other. Participation in a telephonic or videographic meeting held
pursuant to this section shall constitute presence in person at such meeting.
(iii) NOTICES. Notices of regularly scheduled
meetings of the Board shall not be required unless the time or place of a
particular regular meeting is other than as set forth in the schedule of annual
meetings previously approved by the Board. Notices of special meetings shall be
required and shall state the place, date and hour of the meeting and the purpose
or purposes for which the meeting is called. Special meetings shall be held at
the address specified in the notice of such meeting or at such other place as
shall be agreed by the Directors. Notice of a special meeting shall be given to
each Director not less than two (2) nor more than fifteen (15) days before the
date of the meeting. Directors may waive in writing the requirements for notice
before, at or after the special meeting involved. The presence of a Director at
a meeting shall constitute waiver of notice of such meeting unless said Director
expressly states otherwise at the outset of such meeting.
(iv) QUORUM. At each meeting of the Board, the
presence in person or by electronic means, as the case may be, of two (2) of the
Directors shall be necessary to constitute a quorum for the transaction of
business by the Board.
(v) APPROVAL REQUIREMENTS. The Board may act
either through the presence of Directors voting at a meeting or by written
consent without a
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meeting as described in clause (vi) below. In the case of actions taken at a
meeting, the affirmative vote of a majority of the Directors present in person
or by electronic means, as the case may be, and voting at a duly held meeting of
the Board where a quorum is present shall be necessary for any action of the
Board.
(vi) WRITTEN CONSENTS. Any action required or
permitted to be taken at a meeting of the Board may be taken without a meeting,
without prior notice and without a vote if a consent or consents in writing,
setting forth the action so taken, shall be signed by at least two (2)
Directors. Such consents shall be filed with the minutes of the proceedings of
the Board.
5.3 PARTNER APPROVAL RIGHTS. In addition to any other approval
required by applicable law, the following matters shall require the approval of
the Partners:
(a) any merger or combination of the Partnership with
another Person, or any reclassification, recapitalization, dissolution,
liquidation or winding up of the Partnership;
(b) any issuance, sale or buyback by the Partnership of
Partnership Interests, or any other similar transactions;
(c) any addition to or amendment or repeal of the
Certificate or this Agreement; and
(d) approval of the procedures by which the Board shall
make capital calls of the Partners.
Except as set forth in this Section 5.3, or as otherwise expressly
provided in this Agreement, the Limited Partner shall have no other voting or
consent rights.
Notwithstanding the provisions of Sections 5.4(a) and 5.4(b) below, the
Partners may take such action without a meeting, without prior notice and
without a vote if a consent or consents in writing, setting forth the action so
taken, shall be signed by all of the Partners. An original or copy of any such
consent shall be inserted in the record of the proceedings of the Partners.
5.4 PARTNER MEETING AND APPROVAL PROCEDURES.
(a) MEETINGS. A meeting of the Partners for the purpose
of acting upon any matter upon which the Partners are entitled to vote may be
called by the Board at any time, and such a meeting shall be called by the Board
not more than thirty (30) days after receipt of a written request therefor
signed by any Partner. Meetings of the Partners shall be held at such location
as from time to time shall be reasonably determined by the Board. The Board
shall give written notice of any such meeting to all Partners, and such meeting
shall be held not less than seven (7) days nor more than thirty (30) days after
the Board sends such notice. All Partners shall be entitled to attend and
participate in any such meeting, and the affirmative vote or written consent of
each Partner shall be required for any action of the Partners.
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(b) QUORUM; NOTICE; WAIVERS; PROXIES. The presence in
person or by proxy of all of the Partners shall constitute a quorum at all
meetings of the Partners. No notice of the time, place or purpose of any meeting
of Partners need be given to any Partner entitled to such notice who, in
writing, executes and files with the records of the meeting, either before or
after the time thereof, a waiver of such notice. Any Partner who attends a
meeting in person or is represented by proxy, except for a Partner attending a
meeting for the express purpose of objecting at the beginning of the meeting to
the transaction of any business on the ground that the meeting is not lawfully
called or convened, shall be deemed to have waived notice of such meeting. Each
Partner may authorize any Person to act for it by proxy with respect to any
matter in which such Partner is entitled to participate, including waiving
notice of any meeting and voting or participating in a meeting. Every proxy must
be signed by such Partner or its attorney-in-fact. No proxy shall be valid
after the expiration of twelve (12) months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the pleasure
of the Partner executing it.
(c) AUTHORITY OF THE GENERAL PARTNER. In the case wherein
the Board is unable to exercise its management power as provided in Section 5.1
above, the General Partner shall have the power on behalf and in the name of the
Partnership to manage and control the business and affairs of the Partnership.
The Limited Partner agrees that all determinations, decisions and actions made
or taken by the General Partner shall be conclusive and absolutely binding upon
the Partnership, the Limited Partner and their respective successors, assigns
and personal representatives.
Notwithstanding the provisions of Sections 5.4(a) and 5.4(b), the
General Partner may take such action without a meeting, without prior notice and
without a vote if a consent or consents in writing, setting forth the action so
taken, shall be signed by the General Partner. An original or copy of any such
consent shall be inserted in the record of the proceedings of the Partners.
5.5 OFFICERS. From time to time, the Board shall appoint such
officers ("OFFICERS"), including a secretary (the "SECRETARY"), with such
authority as the Board deems necessary or advisable in connection with the
affairs of the Partnership. The Officers shall manage the day-to-day affairs of
the Partnership and shall perform such other duties as may be delegated to them
by the Board from time to time. The Board shall have the right to remove any
Officer at any time with or without cause.
5.6 LIABILITY AND INDEMNIFICATION.
(a) EXCULPATION OF DIRECTORS. No Director shall be
liable, responsible or accountable in damages or otherwise to the Partnership or
any of the Partners for any act or omission performed or omitted (i) in good
faith on behalf of the Partnership, (ii) in a manner reasonably believed by such
Director to be within the scope of the authority granted to him or her by this
Agreement, and (iii) in a manner not constituting willful misconduct, fraud, or
breach of fiduciary duty of loyalty.
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(b) INDEMNIFICATION OF GENERAL PARTNER AND DIRECTORS BY
THE PARTNERSHIP. The Partnership shall, solely from assets of the Partnership
and without recourse to the General Partner, indemnify, defend and hold harmless
the General Partner and each Director (each, an "INDEMNITEE"), for any and all
claims or threats thereof, expenses and liabilities or threats thereof
(including, without limitation, reasonable attorneys' fees and costs of
investigation and defense relating to the Partnership) that such party may incur
by reason of being an Indemnitee (regardless of the disclosure or lack of
disclosure of such status) or by virtue of taking any action pursuant to this
Agreement in such capacity unless such claim, expense or liability is caused by
an act or omission performed or omitted by the Indemnitee in bad faith or in a
manner constituting willful misconduct, fraud, or breach of fiduciary duty of
loyalty. Expenses incurred by an Indemnitee in defense or settlement of any
claim that may be subject to indemnification may be advanced by the Partnership
prior to the final disposition thereof upon (i) receipt of an undertaking by or
on behalf of such Indemnitee to repay such amount to the extent that it shall be
determined ultimately that such Indemnitee is not entitled to indemnification
and (ii) a reasonable determination that such Indemnitee is able to repay such
amounts under such circumstances, including the provision of such security or
assurance of repayment as reasonably may be requested by the Board.
5.7 PARTNERSHIP FUNDS. The funds of the Partnership shall
be deposited in such bank account or accounts identified to the Partnership, or
invested in such interest-bearing or non-interest-bearing investments identified
to the Partnership, as shall be designated by the Board in its sole discretion.
All withdrawals from any such bank accounts shall be made by the Board or the
duly authorized agent or agents of the Board. Partnership funds shall not be
commingled with those of the Partners or any other Person.
ARTICLE 6
ACCOUNTING AND RECORDS; TAX MATTERS
6.1 FISCAL YEAR. Unless otherwise determined by the
Board, the fiscal year of the Partnership shall be the calendar year.
6.2 METHOD OF ACCOUNTING. Unless otherwise determined by
the Board, the books of account and reports of the Partnership shall be
maintained or prepared, as the case may be, in accordance with GAAP; provided,
however, that for purposes of making allocations and distributions hereunder
(including, without limitation, distributions in liquidation of the Partnership
in accordance with Capital Account balances as required by Section 8.3(d)(2)),
shall be determined in accordance with U.S. Federal income tax accounting
principles utilizing the accrual method of accounting, with the adjustments
required by Treasury Regulation section 1.704-1(b) to properly maintain Capital
Accounts. Each Partner acknowledges that the Capital Account balances of the
Partners for the purposes described in the preceding sentence are not computed
in accordance with GAAP.
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6.3 BOOKS AND RECORDS AND INSPECTION.
(a) BOOKS OF ACCOUNT AND RECORDS. Proper and complete
records and books of account of the Partnership, including all such transactions
and other matters as are usually entered into records and books of account
maintained by Persons engaged in businesses of like character or as are required
under applicable law, shall be maintained by the Partnership. The Partnership
also shall keep at its principal place of business all records relating to the
Partnership required by the LP Act and any other applicable laws to be kept at
such office.
(b) INSPECTION. All records and books of account
described in subsection (a) above shall be open to inspection and copying by any
Partner or its accredited representatives at any reasonable time during normal
business hours and at such Partner's expense.
6.4 TAX MATTERS.
(a) PARTNERSHIP TAX STATUS. The Partners intend that the
Partnership shall be treated as a disregarded entity for U.S. Federal tax
purposes and hereby agree, and authorize the Partnership and the Tax Matters
Partner to take such actions (including the making of, or refraining from
making, any relevant elections) to perfect such status. The Partners further
intend that the provisions of sections 6221-6234 of the Code shall apply to the
Partnership and intend that, if the circumstances so require, an election under
section 6231(a)(1)(B)(ii) of the Code shall be made. The Board shall have
authority to amend or supplement the provisions of this Section 6.4 from time to
time, as it sees fit.
(b) TAX MATTERS PARTNER. With respect to U.S. Federal
income tax matters, ▇▇▇▇▇▇▇▇▇ ▇▇ shall be the "tax matters partner" (the "TAX
MATTERS PARTNER") within the meaning of section 6231 (a)(7) of the Code and
shall act in any similar capacity under state, local, foreign or provincial tax
law.
ARTICLE 7
THE PARTNERS
7.1 ADMISSION OF NEW PARTNERS. Except as the Partners may
otherwise agree from time to time, a new Partner may be admitted to the
Partnership only with the Consent of each other Partner.
7.2 TRANSFERS OF PARTNERSHIP INTERESTS. Except as the Partners may
otherwise agree from time to time, a Partner may not Transfer all or any part of
its Partnership Interest without the Consent of each other Partner, which
Consent may be withheld in the sole discretion of each such other Partner.
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ARTICLE 8
DISSOLUTION AND TERMINATION
8.1 NO TERMINATION. Except as expressly provided in this
Agreement, no Partner shall or shall seek to dissolve, terminate or liquidate
the Partnership, and no Partner shall petition a court for the partition,
dissolution, termination or liquidation of the Partnership, or its property.
Each of the Partners hereby irrevocably waives any and all rights that it may
have to maintain an action to partition Partnership property or to compel any
sale or transfer thereof.
8.2 EVENTS OF DISSOLUTION. The Partnership shall be dissolved upon
the first to occur of the following:
(a) the unanimous Consent of the Partners to dissolve the
Partnership, but only on the effective date of dissolution specified by such
Partners at the time of such approval;
(b) entry of a decree of judicial dissolution under the
LP Act; or
(c) any other event that causes a dissolution of the
Partnership because the LP Act mandates dissolution upon the occurrence of such
other event, notwithstanding any agreement among the Partners to the contrary.
8.3 PROCEDURES UPON DISSOLUTION.
(a) GENERAL. If the Partnership dissolves, it shall
commence winding up pursuant to the appropriate provisions of the LP Act and the
procedures set forth in this Section 8.3. Notwithstanding the dissolution of the
Partnership, prior to the termination of the Partnership, the business of the
Partnership and the affairs of the Partners, as such, shall continue to be
governed by this Agreement.
(b) CONTROL OF WINDING UP. The winding up of the
Partnership shall be conducted under the direction of the Board (the Board in
such capacity hereinafter referred to as the "LIQUIDATOR"); provided, however,
that any Partner who caused the dissolution of the Partnership in contravention
of this Agreement shall not participate in the control of the winding up of the
Partnership and provided further, that if the dissolution is caused by entry of
a decree of judicial dissolution pursuant to Section 8.2(b), the winding up
shall be carried out in accordance with such decree.
(c) MANNER OF WINDING UP. The Partnership shall engage in
no further business following dissolution other than that necessary for the
orderly winding up of the business and distribution of assets. The maintenance
of offices shall not be deemed a continuation of the business for purposes of
this Section 8.3(c). Upon dissolution of the Partnership, the Liquidator shall
(i) cause to be filed a certificate of cancellation in accordance with the LP
Act, and (ii) determine the time, manner and terms of any sale or sales of
Partnership property pursuant to such winding up, consistent
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with its fiduciary responsibility and having due regard to the activity and
condition of the relevant market and general financial and economic conditions.
Upon completion of winding up of the Partnership, the Liquidator shall cause to
be filed a certificate of cancellation in accordance with the LP Act.
(d) APPLICATION OF ASSETS. In the case of a dissolution
of the Partnership, the Partnership's assets shall be applied as follows:
(i) CREDITORS. First, to payment of the
liabilities of the Partnership owing to third parties (including Affiliates of
the Partners) and to Partners. After payment of any such known liabilities, the
Liquidator shall set up such reserves as are reasonably necessary for any
contingent or unforeseen liabilities or obligations of the Partnership. Such
reserves may be paid over by the Liquidator to an escrow holder or trustee, to
be held in escrow or trust for the purpose of paying any such contingent or
unforeseen liabilities or obligations, and, at the expiration of such period as
the Liquidator may deem advisable, such reserves shall be distributed to the
Partners or their assigns in the manner set forth in Section 8.3(d)(ii) below.
(ii) PARTNERS. Second, to the Partners in
accordance with the balances in their Capital Accounts, after as applicable, all
allocations of profits or losses and other items pursuant to Article 3, provided
that if there are insufficient assets available to pay to each Partner the
positive balance in such Partner's Capital Account, the available assets shall
be distributed to the Partners with positive Capital Accounts in proportion to
their respective positive Capital Account balances. All distributions pursuant
to this Section 8.3(d)(ii) shall be made no later than the end of the
Partnership taxable year during which the liquidation of the Partnership occurs
(or, if later, within ninety (90) days after the date of such liquidation).
8.4 TERMINATION OF PARTNERSHIP. Upon the completion of the
liquidation of the Partnership and the distribution of all Partnership assets,
the Partnership's affairs shall terminate and the Board shall cause to be
executed and filed an appropriate certificate, if required, to such effect in
the proper governmental office or offices, as well as any and all other
documents required to effectuate the termination of the Partnership.
ARTICLE 9
NATURE OF PARTNERSHIP INTERESTS
9.1 PARTNERSHIP INTERESTS SHALL BE SECURITIES. The Partnership
Interests shall be deemed to be "securities" within the meaning of Section
8-102(a)(15) of the Uniform Commercial Code as in effect from time to time in
the State of New York ("UCC"), including for purposes of the grant, pledge,
attachment or perfection of a security interest in the Partnership Interests.
The law of the State of New York is hereby designated as the issuer's
jurisdiction within the meaning of Section 8-110(d) of the UCC for purposes of
the matters specified therein.
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9.2 ISSUANCE OF CERTIFICATES. The Interest in the Partnership of
each Genera! Partner and each Limited Partner shall be evidenced by a
Partnership Interest Certificate in the form attached hereto as EXHIBIT A issued
to each such Partner. The Partnership Interest Certificate shall state on its
face (i) the restrictions of transfer set forth in Section 7.1 or Section
8.3(c), as applicable, and (ii) that it is subject to the terms and conditions
of this Partnership Agreement. Subject to the restrictions set forth in Section
5.3, only the Managing General Partner may issue a Partnership Interest
Certificate, and only upon the execution of the same by the President and a Vice
President of the Managing General Partner. Evidence of the issuance of the
Partnership Interest Certificate shall be recorded in the books of the
Partnership as set forth in Section 6.3.
9.3 REGISTERED OWNER. The Partnership shall be entitled to treat
the registered owner of a Partnership Interest Certificate as the owner of such
Partnership Interest for all purposes and, accordingly, shall not be bound to
recognize any equitable or other claim to or interest in such Partnership
Interest, regardless of whether it shall have actual or other notice thereof, by
a person other than the registered owner of such certificate, except as provided
in the Project Financing Documents.
ARTICLE 10
MISCELLANEOUS PROVISIONS
10.1 DISCLAIMER OF AGENCY. This Agreement does not create any
relationship beyond the scope set forth herein, and except as otherwise
expressly provided herein, this Agreement shall not constitute any of the
Partners or the Partnership the legal representative or agent of any other, nor
shall any Partner or the Partnership have the right or authority to assume,
create or incur any liability or obligation, express or implied, against, in the
name of or on behalf of any other Partner or the Partnership.
10.2 AMENDMENT. Except for an amendment reflecting the withdrawal
of a Partner from the Partnership in accordance with the terms of this
Agreement, or as provided otherwise herein, any amendment to this Agreement must
be in writing and approved by each Partner.
10.3 NOTICES. Any notice, demand, offer, or other instrument
required or permitted to be given pursuant to this Agreement shall be in writing
signed by the party giving such notice and shall, to the extent reasonably
practicable, be sent by telecopy, and if not reasonably practicable to send by
telecopy, then by hand delivery, overnight courier, telegram or certified mail
(return receipt requested), to the other parties at the addresses set forth
below:
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(a) If to ▇▇▇▇▇▇▇▇▇ ▇▇, to it at:
c/o Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
(b) if to CPN Freestone, to it at:
c/o Calpine Corporation
▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Each party may change the place to which notice shall be sent or delivered or
specify one additional address to which copies of notices may be sent, in either
case by similar notice sent or delivered in like manner to the other parties.
Without limiting any other means by which a party may be able to prove that a
notice has been received by the other party, a notice shall be deemed to be duly
received: (i) if sent by hand, overnight courier or telegram, the date when duly
delivered at the address of the recipient; (ii) if sent by certified mail, the
date of the return receipt; or (iii) if sent by telecopy, upon receipt by the
sender of an acknowledgment or transmission report generated by the machine from
which the telecopy was sent indicating that the telecopy was sent in its
entirety to the recipient's telecopy number.
10.4 CONSEQUENTIAL DAMAGES. Notwithstanding any provision in this
Agreement to the contrary, no Partner or any Affiliate thereof shall be liable
to any other Partner or the Partnership or to their respective Affiliates under
this Agreement for consequential, incidental, special, indirect or punitive
damages of any nature, including lost profits or revenues, the cost of capital
or lost business opportunity. The Partners intend that the waivers and
disclaimers of liability, releases from liability, and limitations and
apportionments of liability expressed herein shall apply, whether in contract or
in tort, even in the event of the application of strict liability or in the
event of the fault or negligence (in whole or in part) of or breach of contract
by a Partner or its Affiliate released or whose liability is waived, disclaimed,
limited, apportioned or fixed, and shall extend to such Partner's Affiliates and
its and their constituent partners, shareholders, directors, officers,
employees, representatives and agents. The Partners also intend and agree that
such provisions shall continue in full force and effect notwithstanding the
termination, suspension, cancellation or rescission of this Agreement, or the
dissolution and termination of the Partnership.
10.5 COUNTERPARTS. The Partners may execute this Agreement in two
or more counterparts, which shall, in the aggregate, be signed by all the
Partners, and each counterpart shall be deemed an original instrument as against
any Partner who has signed it.
- 16 -
10.6 GOVERNING LAW. This Agreement shall be governed by, construed,
interpreted and applied in accordance with the laws of the State of Delaware
(excluding any conflict of law rules that would refer the matter to be decided
to the laws of another jurisdiction).
10.7 BINDING EFFECT. This Agreement shall be binding on all
successors and assigns of the Partners and inure to the benefit of the
respective successors and permitted assigns of the Partners, except to the
extent of any express contrary provision in this Agreement.
10.8 PARTIAL INVALIDITY. If any term, provision, covenant, or
condition of this Agreement is held by a court of competent jurisdiction to be
invalid, void, or unenforceable, the remaining provisions of this Agreement
shall remain in full force and effect and in no way shall be affected, impaired,
or invalidated by reason of such holding.
10.9 CAPTIONS. Titles or captions of Sections or Articles contained
in this Agreement are inserted only as a matter of convenience and for
reference, and in no way define, limit, extend or describe the scope of this
Agreement or the intent of any provision hereof.
10.10 NO RIGHTS IN THIRD PARTIES. The provisions of this Agreement
are for the exclusive benefit of the Partners and their respective successors
and permitted assigns. This Agreement is not intended to benefit or create
rights in any other Person (including any governmental Person), including (a)
the Partnership, (b) any Person (including any governmental Person) to whom any
debts, liabilities or obligations are owed by the Partnership or any Partner or
(c) any liquidator, trustee or creditor acting on behalf of the Partnership. No
such creditor or any other Person (including any governmental Person) shall have
any rights under this Agreement (or any other Agreement to which the Partners
are parties), including rights with respect to enforcing the payment of capital
contributions, unless specifically set forth herein or therein.
10.11 NO TITLE TO PARTNERSHIP PROPERTY. All property owned by the
Partnership, whether real, personal or mixed, and whether tangible or
intangible, shall be deemed to be owned by the Partnership as an entity, and no
Partner, individually, shall have any ownership interest or title in such
property except indirectly through such Partner's ownership of Partnership
Interests.
10.12 FURTHER ASSURANCES; ADDITIONAL DOCUMENTS. Each Partner shall,
and shall use its reasonable efforts to cause its Affiliates to, take such
further actions as are reasonably requested by any other Partner, including the
execution and delivery of documents, as are necessary or expedient to carry out
the intent of this Agreement. Without limiting the generality of the foregoing,
each party hereto agrees to execute, with acknowledgment or affidavit, if
required or deemed appropriate, any and all documents and writings that may be
necessary or expedient in connection with the creation of the Partnership and
the achievement of its purposes, specifically including (i) such certificates
and other documents as the Board deems necessary or appropriate to form, qualify
or continue the Partnership as a limited partnership in all jurisdictions in
which
- 17 -
the Partnership conducts or plans to conduct business and (ii) all such
agreements, certificates, tax statements, tax returns and other documents as may
be required of the Partnership or its Partners by the laws of the U.S. or any
state or province in which the Partnership conducts or plans to conduct
business, or any political subdivision or agency thereof.
10.13 PERSONS NOT NAMED. Unless named in this Agreement, or unless
admitted to the Partnership as a Partner by Consent of the Partners, no Person
shall be considered a Partner. The Partnership and the Partners need deal only
with Persons so named or admitted as Partners; provided, however, that any
distribution by the Partnership to the Person shown on the Partnership records
as a Partner or its legal representative or the assignee of the right to receive
Partnership distributions as herein provided, shall relieve the Partnership and
the Partner of all liability to any other Person who may be interested in such
distribution by reason of any other assignment by the Partner, bankruptcy of the
Partner or any other reason.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
- 18 -
IN WITNESS WHEREOF, the parties hereto, by their respective duly
authorized officers or directors, have executed this Agreement of Limited
Partnership as of the date first above-written.
GENERAL PARTNER: CALPINE FREESTONE ENERGY GP, LLC,
a Delaware limited liability company
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
LIMITED PARTNER: CPN FREESTONE, INC.,
a Delaware corporation
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
- 19 -
EXHIBIT A
TO
LIMITED PARTNERSHIP AGREEMENT
FORM OF PARTNERSHIP INTEREST CERTIFICATE
PARTNERSHIP INTEREST CERTIFICATE
CALPINE FREESTONE ENERGY, LP
A DELAWARE LIMITED PARTNERSHIP
NO. __________________________________________
[GENERAL/LIMITED] PARTNER INTEREST
THIS CERTIFIES THAT _________________________________ is the owner of a
______________________ [General/Limited] Partner Interest in the above named
Limited Partnership (the "Partnership"). Such [General/Limited] Partner Interest
is not transferable except as provided in the Limited Partnership Agreement of
Calpine Freestone Energy, LP dated as January 31,2003, as amended, modified or
restated from time to time (as so amended, modified or restated, the
"Partnership Agreement"), and is otherwise subject to the terms and conditions
of the Partnership Agreement.
THIS CERTIFICATE is not negotiable or transferable except in connection
with the transfer of the partnership interest evidenced hereby as provided in
the Partnership Agreement; provided, however, that this Certificate, when
coupled with an assignment in the form set forth on the reverse hereof or
otherwise sufficient to convey an interest in the Partnership, duly executed in
blank or assigned to the named assignee, may be deposited with the General
Partner of the Partnership and shall constitute direction by the registered
owner of this Certificate to such General Partner to register the change of
ownership of the partnership interest evidenced hereby to such assignee and to
issue a new Certificate reflecting such change of ownership to such assignee.
The Partner Interest evidenced by this Certificate shall be deemed to be a
security within the meaning of Section 8-102(a)(15) of the Uniform Commercial
Code as in effect from time to time in the State of New York, including for
purposes of the grant, pledge, attachment or perfection of a security interest
in the Partner Interest.
IN WITNESS WHEREOF, the Partnership has caused this Certificate to be
signed by the duly authorized officers of its General Partner and the issuance
recorded in its Partnership books this_____day of_____________.
Calpine Freestone Energy GP, LLC,
a Delaware limited liability company, its
General Partner
By:______________________________________
Name:____________________________________
Title:___________________________________
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED PURSUANT TO THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE OFFERED AND SOLD ONLY
IF SO REGISTERED AND QUALIFIED OR IF AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION EXISTS.
(REVERSE OF CERTIFICATE)
ASSIGNMENT OF [GENERAL/LIMITED] PARTNER INTEREST
FOR VALUE RECEIVED, the undersigned (the "Assignor") hereby assigns,
conveys, sells and transfers unto
__________________________________ ____________________________________
(Please insert taxpayer (Please print name and address)
identification number of Assignee)
all rights and interest of the Assignor in_______________[General/Limited]
Partner Interest represented by the within Certificate and irrevocably
constitutes and appoints the General Partner of_______________________, a
Delaware limited partnership (the "Partnership") as its attorney-in-fact with
full power of substitution in the premises to transfer the same on the books of
the Partnership.
Dated:____________________ By:________________________________
THIS SECURITY HAS NOT BEEN REGISTERED OR QUALIFIED PURSUANT TO THE SECURITIES
ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE AND MAY BE OFFERED AND SOLD ONLY
IF SO REGISTERED AND QUALIFIED OR IF AN EXEMPTION FROM SUCH REGISTRATION AND
QUALIFICATION EXISTS.