AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
UNITED DEFENSE, L.P.
This Amended and Restated Agreement of Limited Partnership (this
"Agreement") of United Defense, L.P. is entered into by and between UDLP
Holdings Corp., a Delaware corporation, as general partner ("Holdings" or the
"General Partner"), and United Defense Industries, Inc., a Delaware
corporation, as limited partner ("UDI" or the "Limited Partner" and, together
with the General Partner, the "Partners").
RECITALS:
WHEREAS, United Defense, L.P., a Delaware limited partnership (the
"Partnership"), was formed on January 20, 1994 in accordance with the Delaware
Revised Uniform Limited Partnership Act (the "Act"), pursuant to that certain
Partnership Agreement dated as of January 1, 1994 by and among FMC Corporation,
a Delaware corporation ("FMC"), Harsco Defense Holding, Inc., a Delaware
corporation, and the Partnership (the "Original Partnership Agreement");
WHEREAS, pursuant to that certain Purchase Agreement (the "Purchase
Agreement"), dated August 25, 1997, among FMC, Harsco Corporation, Harsco UDLP
Corporation (together with Harsco Corporation, "Harsco") and UDI, FMC and
Harsco agreed to sell to UDI and its assigns, and UDI agreed to purchase or
cause to be purchased from FMC and Harsco, all of the outstanding interests in
the Partnership;
WHEREAS, UDI has assigned its right under the Purchase Agreement to
purchase a 1% interest in the Partnership to the General Partner pursuant to an
Assignment Agreement dated as of the date hereof;
WHEREAS, FMC, Harsco, UDI, Holdings and the Partnership have entered
into that certain Amendment No. 1 to the Partnership Agreement, dated as of the
date hereof, whereby UDI was admitted to the Partnership as a limited partner
and Holdings was admitted to the Partnership as a general partner, effective
immediately prior to the consummation of the transactions contemplated by the
Purchase Agreement (the "Closing");
WHEREAS, effective upon the Closing, FMC and Harsco assigned all of
their right, title and interest in and to the Partnership to the Partners in
accordance with the terms and conditions set forth in the Purchase Agreement;
and
WHEREAS, effective upon the Closing, FMC withdrew as a general
partner of the Partnership and Harsco UDLP withdrew as a limited partner of the
Partnership.
AGREEMENT:
NOW, THEREFORE, in consideration of the foregoing recitals and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the
General Partner and the Limited Partner, pursuant to and in accordance with
the Act, hereby agree to amend and restate the Partnership Agreement as
follows:
1. NAME. The name of the Partnership is United Defense, L.P.
2. PURPOSE. The purpose of the Partnership is to engage in
any and all business activities that may be lawfully conducted by a limited
partnership formed under the Act.
3. REGISTERED OFFICE; PRINCIPAL PLACE OF BUSINESS; OTHER
OFFICES. The registered office of the Partnership in the State of Delaware
shall be at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other place
as the General Partner may designate from time to time. The principal place
of business of the Partnership shall be at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other place as the General Partner may
designate from time to time, which need not be in the State of Delaware. The
Partnership may have such other offices as the General Partner may designate
from time to time.
4. REGISTERED AGENT. The registered agent for service of
process on the Partnership in the State of Delaware or any other jurisdiction
shall be such Person or Persons as the General Partner may designate from
time to time.
5. PARTNERS. The names and the business, residence or mailing
addresses of the General Partner and the Limited Partner as of the date hereof
are as follows:
GENERAL PARTNER:
UDLP Holdings Corp.
c/o The Carlyle Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
LIMITED PARTNER:
United Defense Industries, Inc.
c/o The Carlyle Group
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇
6. TERM. The Partnership shall dissolve, and its affairs
shall be wound up, on the twenty-fifth anniversary of the date hereof, or at
such earlier time as (a) the Partners approve in writing, (b) an event of
withdrawal of the General Partner has occurred under the Act and a majority
in interest of the remaining partners do not agree in writing to continue the
Partnership and designate at least one general partner of the Partnership
within ninety (90) days of the date of
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withdrawal of the General Partner, or (c) an entry of a decree of judicial
dissolution has occurred under Section 17-802 of the Act.
7. CAPITAL CONTRIBUTIONS. The aggregate capital contribution
made to the Partnership by each Partner at any given time during the term of
the Partnership shall be as set forth in the Partnership's books and records.
8. ADDITIONAL CONTRIBUTIONS. Except as otherwise set forth
herein, no Partner shall be required to make any further capital contribution
to the Partnership.
9. CAPITAL ACCOUNTS.
(a) There shall be established for each Partner on the
books of the Partnership a capital account (the "Capital Account") reflecting
the difference between (i) the sum of (w) such Partner's capital
contributions, (x) such Partner's share of Profits (as hereafter defined),
and (y) such Partner's share of tax-exempt income of the Partnership minus
(ii) the sum of (w) such Partner's share of Losses (as hereafter defined),
(x) such Partner's share of other Partnership expenditures that are not
deductible for federal income tax purposes (not including principal payments
on indebtedness or expenditures to the extent included in the basis of any
asset of the Partnership), and (y) any distributions to such Partners.
(b) Notwithstanding any other provision in this Section 9
or elsewhere in this Agreement, each Partner's Capital Account shall be
maintained and adjusted in accordance with the Internal Revenue Code of 1986,
as amended (the "CODE"), and the Treasury Regulations thereunder
("REGULATIONS"), including Regulations Sections 1.704-1(b) and 1.704-2. It
is intended that appropriate adjustments shall thereby be made to Capital
Accounts to give effect to any income, gain, loss or deduction (or items
thereof) that is allocated pursuant to this Agreement. Each Partner's
Capital Account shall include that of any predecessor holders of the
Partnership interest of such Partner. The General Partner shall make (1) any
adjustments that are necessary or appropriate to maintain equality between
the Capital Accounts of the Partners and the amount of Partnership capital
reflected on the Partnership's balance sheet, as computed for book purposes,
in accordance with Regulations Section 1.704-1(b)(2)(iv)(q), and (2) any
appropriate modifications in the event that unanticipated events might
otherwise cause this Agreement not to comply with Regulations Section
1.704-1(b) or Section 1.704-2.
(c) The General Partner may in its discretion increase or
decrease the Capital Accounts of the Partners to reflect a revaluation of
Partnership property on the Partnership's books and records, but only in
accordance with the rules set forth in Regulations Section
1.704-1(b)(2)(iv)(f). Following any such revaluation, the Partners' Capital
Accounts shall be adjusted in accordance with Regulations Section
1.704-1(b)(2)(iv)(g) for allocations of depreciation, depletion,
amortization, and gain or loss as computed for book purposes with respect to
such property.
10. TIMING AND AMOUNT OF ALLOCATIONS OF PROFITS AND LOSSES.
Profits and Losses of the Partnership shall be determined and allocated with
respect to each fiscal year of the
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Partnership as of the end of each such year. Subject to the other provisions
of this Agreement, an allocation to a Partner of a share of Profits or Losses
shall be treated as an allocation of the same share of each item of income,
gain, loss or deduction that is taken into account in computing Profits or
Losses. "PROFITS" or "LOSSES" for each fiscal year of the Partnership shall
mean the net income or net loss of the Partnership, determined by the method
of accounting for the Partnership as selected by the General Partner for
federal income tax purposes, including, without limitation, each item of
Partnership income, gain, loss and deduction; provided, however, in the event
of a revaluation of Partnership property as described in Section 9(c),
"Profits" and "Losses" of the Partnership shall be adjusted in accordance
with Regulations Section 1.704-1(b)(2)(iv)(g).
11. ALLOCATIONS.
(a) Except as otherwise provided in this Section 11, all
Profits and Losses of the Partnership shall be allocated to the Partners in
proportion to their respective Percentage Interests. The "PERCENTAGE
INTEREST" of each Partner shall be as set forth on Exhibit A hereto.
(b) Notwithstanding Section 11(a):
(i) If there is a net decrease in Partnership
Minimum Gain (as hereafter defined) or Partner
Minimum Gain (as hereafter defined) during any
fiscal year, the Partners shall be allocated items
of Partnership income and gain for such year (and,
if necessary, for subsequent years) in accordance
with Regulations Section 1.704-2(f) or Section
1.704-2(i)(4), as applicable.
(ii) Any Partner Nonrecourse Deductions (as
hereafter defined) for any fiscal year shall be
specially allocated to the Partner(s) who bears the
economic risk of loss with respect to the Partner
Nonrecourse Debt (as hereafter defined) to which
such Partner Nonrecourse Deductions are
attributable, in accordance with Regulations Section
1.704-2(i).
(iii) Items of Partnership income and gain shall be
allocated to the Partners in accordance with the
"qualified income offset" requirements of
Regulations Section 1.704-1(b)(2)(ii)(d).
(iv) To the extent any allocation of losses would
cause or increase an Adjusted Capital Account
Deficit (as hereafter defined) as to any Partner,
such allocation of losses shall be reallocated among
the other Partners in proportion to their respective
Percentage Interests, but in a manner that will not
produce an Adjusted Capital Account Deficit as to
any other Partner.
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(v) The allocations set forth in Sections
9(b)(1) through (4) (the "REGULATORY ALLOCATIONS") are
intended to comply with certain regulatory
requirements, including the requirements of Regulations
Sections 1.704-1(b) and 1.704-2. Notwithstanding the
provisions of Section 11(a), the Regulatory Allocations
shall be taken into account in allocating other items
of income, gain, loss and deduction among the Partners
so that, to the extent possible, the net amount of such
allocations of other items and the Regulatory
Allocations to each Partner shall be equal to the net
amount that would have been allocated to each such
Partner if the Regulatory Allocations had not occurred.
(c) Definitions.
(i) "ADJUSTED CAPITAL ACCOUNT DEFICIT" means,
with respect to any Partner, the deficit balance, if any,
in such Partner's capital account as of the end of
the relevant fiscal year, after giving effect to the
following adjustments:
(A) Decrease such deficit by any amounts
which such Partner is obligated to restore pursuant to
this Agreement or is deemed to be obligated to restore
to the Partnership pursuant to Regulations Section
1.704-1(b)(2)(ii)(c) or the penultimate sentence of
each of Regulations Sections 1.704-2(g)(1) and
1.704-2(i)(5); and
(B) Increase such deficit by such
Partner's share of the items described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
(ii) "NONRECOURSE DEDUCTIONS" has the meaning
set forth in Regulations Section 1.704-2(b)(1).
(iii) "PARTNER MINIMUM GAIN" means gain
attributable to Partner Nonrecourse Debt determined in
accordance with Regulations Section 1.704-2(i).
(iv) "PARTNER NONRECOURSE DEBT" has the meaning
set forth in Regulations Section 1.704-2(b)(4).
(v) "PARTNER NONRECOURSE DEDUCTION" has the
meaning set forth in Regulations Section 1.704-2(i)(2).
(vi) "PARTNERSHIP MINIMUM GAIN" has the meaning
set forth in Regulations Section 1.704-2(b)(2).
(d) For any fiscal year during which a Partner's
Partnership interest is assigned by such Partner (or by an assignee or
successor in interest to a Partner), the portion of
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the Profits or Losses of the Partnership that is allocable in respect of such
Partner's interest shall be apportioned between the assignor and the assignee
on any basis selected by the General Partner, provided such basis is
permitted by Section 706(d)(2) of the Code.
(e) Tax Allocations
(i) Except as otherwise provided in this Section
11(e), each item of income, gain, loss and deduction
shall be allocated for income tax purposes among the
Partners in the same manner as its correlative item of
"book" income, gain, loss or deduction is allocated
pursuant to Section 11.
(ii) Notwithstanding the foregoing provisions of this
Section 11, income, gain, loss and deduction with
respect to property contributed to the Partnership by a
Partner shall be allocated among the Partners, pursuant
to Regulations promulgated under Section 704(c) of the
Code, so as to take account of the variation, if any,
between the adjusted basis of such property to the
Partnership and its initial value. The Partnership
shall account for such variation under any method
approved under Section 704(c) of the Code and the
applicable Regulations as chosen by the General
Partner. In the event the value of any Partnership
asset is adjusted pursuant to Section 3.2(c),
subsequent allocations of income, gain, loss and
deduction with respect to such asset shall take account
of the variation, if any, between the adjusted basis of
such asset for federal income tax purposes and its
value in the same manner as under Section 704(c) of the
Code and the applicable Regulations, consistent with
the requirements of Regulations Section
1.704-1(b)(2)(iv)(g), using any method approved under
Section 704(c) of the Code and the applicable
Regulations, as chosen by the General Partner.
Allocations pursuant to this Section 11(e) are solely
for purposes of federal, state and local income taxes
and shall not affect, or in any way be taken into
account in computing, any Partner's Capital Account or
share of Profits, Losses, other tax items or
distributions pursuant to any provision of this
Agreement.
12. DISTRIBUTIONS. All distributions of Partnership assets to
be made to the Partners prior to and otherwise not in conjunction with the
final liquidation of the Partnership in accordance with Section 16 shall be
made to the Partners only at such times as the General Partner, in its sole
and absolute discretion, deems appropriate and shall be made in proportion to
each Partner's Percentage Interest. The General Partner may withhold from
any distributions to the Partners the amount(s) required to satisfy the
present and future cash needs of the Partnership, as determined by the
General Partner in its sole and absolute discretion. No right is given to
any Partner to demand and receive property other than cash. The General
Partner may
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determine, in its sole and absolute discretion, to make a distribution in
kind to the Partners of Partnership assets other than cash.
13. MANAGEMENT OF PARTNERSHIP.
(a) The General Partner shall have exclusive control over
the business of the Partnership and shall have all rights, powers and
authority generally conferred by law or necessary, advisable or consistent in
connection therewith. The General Partner may, in its discretion, appoint
officers of the Partnership (such as President, Vice President, Treasurer,
Secretary and Assistant Secretary) to act as agents of the Partnership. If
the General Partner so resolves in writing, any such officer may bind the
Partnership by executing and delivering contracts, agreements or instruments
in the name and on behalf of the Partnership. The Limited Partner shall have
no right to participate in or vote upon any Partnership matters except as
specifically provided by this Agreement or required by any mandatory
provision of the Act.
(b) Without limiting the foregoing, the General
Partnership shall have full power on behalf and in the name of the
Partnership to carry out any and all of the objects and purposes of the
Partnership and to perform all acts and to execute and deliver all
agreements, instruments and other documents which it, in its sole discretion,
may deem necessary or desirable, including without limitation, the power to:
(c) enter into, deliver, perform, construe and take any
action under, any contract, agreement or other instrument as the General
Partner shall determine to be necessary or desirable to further the purpose
of the Partnership;
(d) open, maintain and close bank accounts, make deposits
thereunder and investment decisions with respect thereto and draw checks or
other orders for the payment of moneys;
(e) collect all sums due the Partnership, including the
assertion by all advisable means of the Partnership's right to payment;
(f) to the extent that funds of the Partnership are
available therefor, pay as they become due all debts, obligations and
operating expenses of the Partnership including, without limitation, the
salaries, bonuses, benefits and expenses of the employees and agents of the
Partnership and equipment and office acquisitions and operating costs;
(g) employ and dismiss from employment, and pay the fees
and expenses of, any and all employees, attorneys, accountants, consultants,
advisors or other agents, on such terms and for such compensation as the
General Partner may determine, whether or not such person may also be
otherwise employed by any affiliate of the General Partner;
(h) obtain insurance for the Partnership;
(i) admit addition partners;
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(j) determine distributions of Partnership cash and other
property as provided in Section 12;
(k) bring and defend actions, investigations and
proceedings at law or equity or arbitrations or other forms of alternative
dispute resolution and before any governmental, administrative or other
regulatory agency, body or commission or arbitrator, mediator or other forum
for dispute resolution;
(l) make all elections, investigations, evaluations and
decisions, binding the Partnership thereby, that may in the sole judgment of
the General Partner be necessary or desirable for the acquisition, management
or disposition of assets by the Partnership, including without limitation the
exercise of rights to elect to adjust the tax basis of Partnership assets;
(m) incur expenses and other obligations on behalf of the
Partnership and, to the extent that funds of the Partnership are available
for such purpose, pay all such expenses and obligations;
(n) cause the Partnership to incur or guarantee
indebtedness for borrowed money;
(o) possess and exercise all rights and powers of general
partners under the Act, in furtherance of the purposes of the Partnership; and
(p) consult with and seek the advice of one or more of
the Limited Partners as contemplated by Section 17-303 of the Act.
14. TRANSFER OR PLEDGE. A partner's interest in the
Partnership shall not be assigned, pledged, sold or otherwise transferred, in
whole or in part, without the prior written consent of the other partner,
which consent may be given or withheld in such partner's sole and absolute
discretion. No assignee of a partner's interest in the Partnership shall be
admitted into the Partnership as a substituted partner without the prior
written consent of the General Partner, which consent may be given or
withheld by the General Partner in its sole and absolute discretion.
15. WITHDRAWAL. No right is given to any partner of the
Partnership to withdraw from the Partnership.
16. DISSOLUTION AND WINDING UP. Upon the expiration of the
Partnership's term, the Partnership shall be dissolved and the business wound
up. Upon the dissolution of the Partnership the General Partner shall act as
liquidator (unless there is no General Partner at such time, in which case
the Limited Partner shall select a person (which may include the Limited
Partner) to act as liquidator) of the Partnership's assets. After paying the
Partnership's outstanding liabilities to creditors in the order of priority
as provided by law (or the provision of adequate reserves therefor), the
liquidator(s) shall distribute the remaining assets to the Partners
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pro rata in accordance with their relative positive Capital Account balances,
determined after taking into account all Capital Account adjustments for the
Partnership fiscal year during which such liquidation occurs through the date
of such liquidation. No Partner shall be obligated to contribute to the
Partnership the amount of any deficit balance in its Capital Account. All
liquidating distributions shall be made in assets of the Partnership and/or
in cash, as the liquidator(s) shall determine in its sole and absolute
discretion.
17. LIMITED LIABILITY. The Limited Partner shall not be
liable for the losses, debts, liabilities, contracts or other obligations of
the Partnership except as otherwise required by law.
18. GOVERNING LAW. This Agreement, and all rights and
remedies in connection therewith, shall be governed by, and construed under,
the laws of the State of Delaware, without regard to otherwise governing
principles of conflicts of law.
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IN WITNESS WHEREOF, the undersigned, intending to be bound hereby,
have duly executed this Agreement of Limited Partnership as of the date first
above written.
GENERAL PARTNER:
UDLP Holdings Corp.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
LIMITED PARTNER:
United Defense Industries, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
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SCHEDULE A
PERCENTAGE INTEREST
-------------------
General Partner:
UDLP Holdings Corp. ....................... 1.0%
Limited Partner:
United Defense Industries, Inc. ........... 99.0%
TOTAL: ................................. 100.0%