EXHIBIT 4.4
AGREEMENT OF LIMITED PARTNERSHIP
OF
FNB FINANCIAL SERVICES, LP
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.
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TABLE OF CONTENTS
ARTICLE 1 ORGANIZATIONAL MATTERS................................................. 1
Section 1.1 - Formation.......................................................... 1
Section 1.2 - Name............................................................... 1
Section 1.3 - Purpose and Character of Business.................................. 1
Section 1.4 - Effective Date; Term............................................... 1
Section 1.5 - Registered Agent................................................... 1
Section 1.6 - Partners........................................................... 2
ARTICLE 2 DEFINITIONS............................................................ 2
ARTICLE 3 CAPITAL CONTRIBUTIONS; LOANS........................................... 2
Section 3.1 - Capital............................................................ 2
Section 3.2 - Interest........................................................... 2
Section 3.3 - Additional Required Funds.......................................... 2
Section 3.4 - Loans.............................................................. 3
Section 3.5 - Distributions and Withdrawals...................................... 3
Section 3.6 - Subsequent Partners................................................ 3
ARTICLE 4 ALLOCATIONS OF PROFITS AND LOSSES; DISTRIBUTIONS; ACCOUNTING........... 3
Section 4.1 - Allocation of Income and Loss...................................... 3
Section 4.2 - Distribution of Cash Flow.......................................... 4
Section 4.3 - Books and Records.................................................. 4
Section 4.4 - Accounting Period and Method....................................... 5
Section 4.5 - Capital Accounts................................................... 5
Section 4.6 - Charges Against Capital Accounts................................... 5
Section 4.7 - Tax Election....................................................... 5
Section 4.8 - Tax Matters Partner................................................ 5
ARTICLE 5 MANAGEMENT............................................................. 6
Section 5.1 - Powers of the General Partner...................................... 6
Section 5.2 - Duties of the Managing Partners.................................... 7
Section 5.3 - Compensation to the Managing Partners.............................. 7
Section 5.4 - Prohibition on Authority of the Managing Partners.................. 7
Section 5.5 - Exculpation and Indemnification.................................... 8
Section 5.6 - Expenses........................................................... 8
Section 5.7 - Insurance.......................................................... 8
ARTICLE 6 RIGHTS AND PROHIBITIONS AFFECTING GENERAL PARTNERS..................... 9
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Section 6.1 - Withdrawal of General Partner...................................... 9
Section 6.2 - Additional General Partners........................................ 9
ARTICLE 7 RIGHTS AND PROHIBITIONS AFFECTING LIMITED PARTNERS..................... 9
Section 7.1 - Rights, Powers, and Restrictions................................... 9
Section 7.2 - Limitation on Withdrawal........................................... 9
Section 7.3 - Additional Limited Partners........................................ 9
Section 7.4 - Voting - Limited Partners.......................................... 9
ARTICLE 8 TRANSFER OF INTEREST; WITHDRAWAL....................................... 10
Section 8.1 - Unrestricted Transfers............................................. 10
Section 8.2 - Right of First Refusal............................................. 10
Section 8.4 - Transferees........................................................ 11
Section 8.5 - Admission of Transferees........................................... 11
Section 8.6 - Compliance......................................................... 12
Section 8.7 - Withdrawal of a General Partner.................................... 12
Section 8.8 - Withdrawal of Sole General Partner................................. 12
ARTICLE 9 DISSOLUTION; TERMINATION OF THE PARTNERSHIP............................ 12
Section 9.1 - Causes of Termination.............................................. 12
Section 9.2 - Liquidation........................................................ 12
Section 9.3 - Final Accounting................................................... 13
ARTICLE 10 MISCELLANEOUS......................................................... 13
Section 10.1 - Governing Law..................................................... 13
Section 10.2 - Amendments........................................................ 13
Section 10.3 - Further Action.................................................... 14
Section 10.4 - Binding Effect.................................................... 14
Section 10.5 - Ratification...................................................... 14
Section 10.6 - Entire Agreement.................................................. 14
Section 10.7 - Headings, Etc..................................................... 14
Section 10.8 - Severability...................................................... 14
Section 10.9 - Notices........................................................... 14
Section 10.10 - Power of Attorney................................................ 15
Section 10.11 - Counterparts..................................................... 15
Section 10.12 - Exhibits......................................................... 15
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AGREEMENT OF LIMITED PARTNERSHIP
OF
FNB FINANCIAL SERVICES, LP
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "Agreement"), is entered into
by and among Regency Consumer Financial Services Inc. (hereinafter referred to
as the "General Partner"), and FNB Consumer Financial Services Inc. (hereinafter
referred to as the "Limited Partner") (the Limited Partner and the General
Partner are hereinafter sometimes collectively referred to as the "Partners" and
individually as a "Partner") who hereby agree to form a limited partnership
under and governed by the provisions of the Delaware Revised Uniform Limited
Partnership Act, Title 6, Chapter 17 of the Delaware Code (the "Act"). The
limited partnership is formed for the purposes and upon the terms and conditions
hereinafter set forth.
ARTICLE 1
ORGANIZATIONAL MATTERS
Section 1.1 - Formation. The Partners hereby enter into this Agreement
under the Act for the purpose of evidencing their agreement to operate the
Partnership as a partnership for federal tax purposes. The Partners have
authorized the formation of the Partnership as a Delaware limited partnership
pursuant to the provisions of the Act and have caused to be filed a Certificate
of Limited Partnership with the Secretary of State of Delaware. The Partners
shall forthwith execute and cause to be filed any additional documents and
instruments as may be necessary or appropriate in connection with the
transaction of business by the Partnership.
Section 1.2 - Name. The name of the Partnership is FNB FINANCIAL SERVICES,
LP (the "Partnership"). The Partnership shall conduct business under such name
or such variations of such name as the General Partner deems appropriate to
comply with the laws of any other jurisdiction in which the Partnership
qualifies to do business.
Section 1.3 - Purpose and Character of Business. The Partnership is formed
to issue, administer and repay Securities (as defined in the Indenture) being
issued pursuant to and authenticated under that certain Indenture by and among
the Partnership, F.N.B. Corporation, as Guarantor and ▇.▇. ▇▇▇▇▇▇ Trust Company,
National Association, as Trustee ("Trustee"), dated as of January ____, 2005
(the "Indenture"), as well as to perform any other actions necessary or
appropriate to effectuate the issuance, administration and repayment of such
Securities.
Section 1.4 - Effective Date; Term. This Agreement shall be deemed to be
effective on the date that an executed copy of the Certificate of Limited
Partnership required by Section 17-201 of the Act was filed with the Secretary
of State of Delaware. The term of the Partnership shall be perpetual unless
earlier dissolved and terminated pursuant to the Act or any provision of this
Agreement.
Section 1.5 - Registered Agent. The name of the registered agent for
service of process on the Partnership shall be Entity Services Group, LLC
#9272016, and the address of the registered agent and registered office in the
State of Delaware is ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Upon any change of the Registered Agent, the Partnership shall
file a notice of change with the Secretary of State of Delaware as required
under the Act.
Section 1.6 - Partners. Upon the execution of a counterpart signature page
to this Agreement, (i) the General Partner shall be admitted as a general
partner of the Partnership and (ii) the Limited Partner shall be admitted as the
limited partner of the Partnership. The names, mailing addresses and number of
Units of the Partners are set forth on Exhibit A attached hereto.
ARTICLE 2
DEFINITIONS
For purposes of this Agreement, unless the context clearly indicates
otherwise: (i) all of the capitalized words in this Agreement shall have the
meanings set forth in the Appendix; and (ii) all non-capitalized words defined
in the Act shall have the meanings set forth therein.
ARTICLE 3
CAPITAL CONTRIBUTIONS; LOANS
Section 3.1 - Capital. Concurrently with the execution of this Agreement,
the Partners shall make a Capital Contribution in cash or property having a fair
market value in the amount set forth opposite each Partner's name in Exhibit A
attached hereto. All Capital Contributions of the partners shall be credited to
the Partners' Capital Accounts and maintained by the Partnership in accordance
with Section 4.5 hereof.
Section 3.2 - Interest. No Partner shall be entitled to any interest on
its Capital Account or on its contributions to the capital of the Partnership.
Section 3.3 - Additional Required Funds. If additional capital is
required, as determined by the General Partner, each Partner may, but shall not
be required to, contribute such capital in proportion to the number of Units
owned by each Partner as compared to the total number of Units owned by all of
the Partners. If additional Capital Contributions are made by the Partners to
the Partnership, additional Units (General Partnership Units or Limited
Partnership Units, as the case may be) shall be issued by the General Partner to
such Partners. The determination of the amount of Units to be issued shall be
determined by the General Partner, taking into account the value of said Capital
Contribution and the then net fair market value of the underlying Partnership
property immediately before the contribution. If any Partner shall not make such
additional contribution, the other Partners shall have the right, but not the
duty, to make such contributions, in proportion to the number of Units owned by
such Partner or as otherwise agreed, in exchange for additional Units. The
Partners agree that the sole remedy for failure to make an additional Capital
Contribution under this Section 3.3 shall be the dilution of their ownership
interest in the Partnership by the reason of the issuance of additional Units to
other Partners who have made such additional Capital Contributions.
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Section 3.4 - Loans. In the event the Partnership shall require funds to
carry on the business of the Partnership, any Partner shall have the right, but
not be required, to loan money upon terms and conditions acceptable to such
Partner and the Partnership ("Loans").
Section 3.5 - Distributions and Withdrawals. No Partner shall be entitled
to make withdrawals from the Partnership except to the extent of distributions
made pursuant to express provisions of this Agreement. Distributions may be made
in cash or in property or partly in each. No Partner shall have the right to
require that a distribution be made other than in cash, except as expressly
provided otherwise in this Agreement.
Section 3.6 - Subsequent Partners. Any Person who subsequently becomes a
Partner by contributing property to the Partnership shall be given full and fair
Capital Account credit therefor based upon the net fair market value of the
property at the date of the contribution, as determined by mutual agreement of
the Person contributing the property and the General Partner. Upon any such
contributions, the Capital Account balances of the other Partners shall be
adjusted to reflect the then net fair market value of the underlying Partnership
property after the contribution in accordance with Section 704(b) of the Code
and the Treasury Regulations promulgated thereunder.
ARTICLE 4
ALLOCATIONS OF PROFITS AND LOSSES;
DISTRIBUTIONS; ACCOUNTING
Section 4.1 - Allocation of Income and Loss. For purposes of maintaining
the Capital Accounts and in determining the rights of the Partners among
themselves, the Partnership's items of income, gain, loss, and deduction shall
be allocated among the Partners for each fiscal year (or portion thereof) as
provided herein below.
a. Profits. Except as otherwise provided, after giving effect to the
Regulatory Allocations and Curative Allocations, Profits of the
Partnership for each fiscal year shall be allocated among the
Partners as follows:
(i) First, to the Partners in proportion to and to the extent of
the cumulative amount of Losses allocated to the Partners
pursuant to Section 4.1(b)(ii) hereof for all prior fiscal
years, over the cumulative Profits allocated to the Partners
pursuant to this Section 4.1(a)(i) for all prior fiscal years;
(ii) Second, to the Partners in proportion to and to the extent of
the cumulative amount of Losses allocated to the Partners
pursuant to Section 4.1(b)(i) hereof for all prior fiscal
years, over the cumulative Profits allocated to the Partners
pursuant to this Section 4.1(a)(ii) for all prior fiscal
years;
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(iii) The balance, if any, to the Partners in proportion to the
total number of Units owned by each Partner as compared to the
total number of Units owned by all of the Partners.
b. Losses. Except as otherwise provided, after giving effect to the
Regulatory and Curative Allocations, Losses of the Partnership for
each fiscal year shall be allocated among the Partners as follows:
(i) First, to the Partners, up to an amount, if any, necessary to
reduce their respective positive Capital Account balance to
zero, in proportion to their respective positive Capital
Account balances; and
(ii) The balance, if any, to the Partners in proportion to the
total number of Units owned by each Partner as compared to the
total number of Units owned by all of the Partners.
c. Varying Unit Ownership. Partners whose Units in the Partnership vary
during a fiscal year shall be allocated Profits and Losses by
allocating to them the appropriate pro rata part amount of such
items based on the number of days that they held their Units during
the fiscal year.
Section 4.2 - Distribution of Cash Flow. Except as provided in Article 9
hereof, the General Partner may distribute Cash Flow, from time to time, first
to the payment of the principal and accrued interest, if any, of the Loans
contemplated by Section 3.4 hereof, in proportion to the relative amounts of
each; then to the Partners in proportion to the total number of Units owned by
each Partner as compared to the total number of Units owned by all of the
Partners, provided that the General Partner has adequately funded Working
Capital Reserves to meet the future liabilities of the Partnership.
Notwithstanding any provision to the contrary contained in this Agreement, the
Partnership shall not be required to make a distribution to a Partner on account
of its interest in the Partnership if such distribution would violate the Act or
any other applicable law.
Section 4.3 - Books and Records. The books and records of the Partnership
shall be kept in sufficient detail to determine the Profits, Losses, credits and
the federal income tax items of the Partnership for each period for which an
allocation is to be made pursuant to this Agreement. The Partnership shall also
keep such books and records in sufficient detail so as to permit preparation of
financial statements in accordance with customary accounting principles
consistently applied. Such books and records and financial statements, together
with any other records and documents required to be made available by the
Partnership for inspection under the Act, shall be maintained at the principal
office of the Partnership. Such documents shall be open for inspection and
examination, copying, verification or audit thereof by any Partner or its duly
authorized representative for any purpose reasonably related to such Partner's
interest in the Partnership. The General Partner shall have the right to keep
confidential from the Limited Partners for such period of time as the General
Partner deems reasonable, any information which the General Partner reasonably
believes to be in the nature of trade secrets or other information the
disclosure of which the General Partner in good faith believes is not in the
best interest of the Partnership or could damage the Partnership or its
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business or which the Partnership is required by law or by agreement with a
third party to keep confidential.
Section 4.4 - Accounting Period and Method. The accounting period and
fiscal year of the Partnership shall be the period ending December 31 each year.
The Partnership shall prepare all financial statements on the cash method of
accounting or such other reasonable accounting method approved by the General
Partner.
Section 4.5 - Capital Accounts. A separate Capital Account shall be
determined and maintained for each Partner. No Partner shall have any interest
in the Capital Account of any other Partner. Capital Accounts shall be
determined and maintained on the same basis as Capital Accounts are determined
and maintained by the Partnership for purposes of federal income taxation in
accordance with the requirements of Section 704(b) of the Code and Section
1.704-1(b) of the Treasury Regulations promulgated thereunder.
Section 4.6 - Charges Against Capital Accounts. If the Partnership shall
suffer Losses as a result of which the Capital Account of any Partner shall be
negative, such Losses shall be carried as a charge against such Partner's
Capital Account and a subsequent share of Profits and gain of the Partnership
shall be applied to restore such deficit in such Partner's Capital Account.
Section 4.7 - Tax Election. All elections and options available to the
Partnership for federal and state tax purposes shall be taken or rejected by the
Partnership in the sole discretion of the General Partner. The General Partner
may elect pursuant to Section 754 of the Code to adjust the basis of the
Partnership's assets, in the case of a distribution of property, in the manner
provided in Section 734 of the Code and, in the case of a transfer of a
Partner's Units, in the manner provided in Section 743 of the Code.
Section 4.8 - Tax Matters Partner. The General Partner shall act as the
initial Tax Matters Partner as defined in Section 6231 of the Code. The Tax
Matters Partner shall provide the Partners with a copy of all correspondence and
shall keep the other Partners reasonably informed of any audit, administrative
or judicial proceedings involving the potential adjustment at the Partnership
level of any item required to be taken into account by the Partners for purposes
of federal, state and local income taxation. In any controversy with the
Internal Revenue Service or any other taxing authority involving the
Partnership, either directly or indirectly, the Tax Matters Partner may, in
respect thereof, incur expenses on behalf of the Partnership which it deems
necessary and advisable and in the best interests of the Partnership including,
but not limited to, attorneys' and accounting fees. The Tax Matters Partner may
execute or agree to a settlement or a compromise of such controversy, waive or
extend the statute of limitations, choose a forum for litigation and file
amended tax returns without the prior consent of the Partners. The Partnership
shall indemnify the Tax Matters Partner and make advancement of expenses as
provided in Section 5.5 of this Agreement.
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ARTICLE 5
MANAGEMENT
Section 5.1 - Powers of the General Partner. The General Partner shall
have all the rights, powers and restrictions conferred in this Agreement and
under the Act which are consistent with the characterization and treatment of
the Partnership as a limited partnership. Subject to the limitations imposed
under the Act and this Agreement, the General Partner shall have all the rights,
powers and restrictions which may be possessed by a general partner under the
Act as are necessary to manage and carry on the business of the Partnership.
Such rights and powers shall include, but shall not be limited to, the right and
power to:
a. cause the issuance, administration and repayment of the Securities
issued pursuant to and authenticated under the Indenture in such
manner as the General Partner deems reasonable and appropriate under
the circumstances;
b. manage the day-to-day operations of the Partnership, including the
right to establish bank accounts for the Partnership and make
deposits of the capital and other funds for the Partnership in and
withdrawals from such accounts, and to borrow funds, use the assets
of the Partnership as collateral, or guarantee any obligation of the
Partnership as the General Partner deems necessary to carry on the
Partnership business;
c. incur and pay reasonable expenses with respect to the conduct and
operation of the Partnership business, including expenses in
connection with the registration, administration and repayment of
securities, and expenses for accounting, legal, appraisal,
investment advice, clerical and other services;
d. disseminate information concerning the Partnership's affairs to the
Partners as it deems necessary or appropriate;
e. perform any reasonable act in furtherance of the Partnership
business;
f. render periodic reports to the Partners with respect to the
operations of the Partnership;
g. maintain complete and accurate books of account (containing such
information as shall be necessary to record allocations and
distributions), and make such records and books of account available
for inspection and audit by any Partner or its duly authorized
representative (at the expense of such Partner) during regular
business hours and at the principal office of the Partnership;
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h. prepare and distribute to the Partners, within the time prescribed
by law, all required tax reporting information for each fiscal year
and arrange for the preparation and filing of all tax returns of the
Partnership;
i. cause to be timely filed all governmental filings for the
Partnership, and do such other acts as may be required by law to
qualify and maintain the Partnership as a limited partnership under
the Act; and
j. execute any and all documents, in the name of and on behalf of the
Partnership, which are necessary to effectuate any of the foregoing
or otherwise necessary to carry out its duties as General Partner.
Section 5.2 - Duties of the General Partner. The General Partner shall owe
no duties to the Partnership or the other Partners, other than as expressly
stated in this Agreement; provided, however, that the General Partner must
comply with the implied contractual covenant of good faith and fair dealing. In
addition to the obligations expressly imposed upon it by this Agreement:
a. The General Partner will comply with all the obligations imposed
upon it, and will cause the Partnership to comply with all
obligations imposed upon the Partnership by the Indenture.
b. Nothing in this Agreement, express or implied, shall give to any
Person, other than the parties hereto and their successors hereunder
and the Trustee and the Holders, which are hereby expressly made
third party beneficiaries of this Agreement, any benefit or any
legal or equitable right, remedy or claim under this Agreement,
provided, however, that any such benefit, legal or equitable right,
remedy or claim of such Trustee and Holders shall be enforceable
only, and subject to all the limitations and restrictions thereon,
as provided by the Indenture; provided, however, that in no event
shall the General Partner be liable for the payment of the principal
of, or the interest on, the Securities.
Section 5.3 - Compensation to the General Partner. The General Partner
shall be allowed reasonable compensation for services rendered to the
Partnership. The General Partner shall also be entitled to reimbursement for any
reasonable expenses paid by it arising out of the business of the Partnership.
Section 5.4 - Prohibition on Authority of the General Partner. The General
Partner shall not have the authority to:
a. do any act in contravention of the Certificate of Limited
Partnership, the Act or this Agreement;
b. do any act which would make it impossible to carry on the ordinary
business of the Partnership; or
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c. possess Partnership property or assign the rights of the Partnership
in specific Partnership property for other than a Partnership
purpose.
Section 5.5 - Exculpation and Indemnification.
a. No Partner shall be liable to the Partnership or any other Partner
for any loss, damage or claim incurred by reason of any act or
omission performed or omitted by such Person, except that a Person
shall be liable for any such loss, damage or claim incurred by
reason of such Person's bad faith violation of the implied
contractual covenant of good faith and fair dealing.
b. The Partnership shall, to the fullest extent permitted by law,
indemnify any Partner who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative
by reason of the fact that such Partner is a partner of the
Partnership, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and
reasonably incurred by such Partner in connection with such action,
suit or proceeding; provided, however, the Partnership shall not
indemnify any Partner for such Partner's bad faith violation of the
implied contractual covenant of good faith and fair dealing. The
termination of any action, suit or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, shall not of itself create a presumption that the
Partner did not act in good faith and in a manner which the Partner
reasonably believed to be in or not opposed to the best interests of
the Partnership and, with respect to any criminal action or
proceeding, had reasonable cause to believe that such Partner's
conduct was unlawful.
Section 5.6 - Expenses. Expenses incurred in defending a civil or criminal
action, suit or proceeding may be paid by the Partnership in advance of the
final disposition of such action, suit or proceeding upon receipt of an
understanding by or on behalf of a Partner to repay such amount unless it shall
ultimately be determined that such Partner is entitled to be indemnified by the
Partnership as authorized in this Article 5.
Section 5.7 - Insurance. The Partnership shall have power to purchase and
maintain insurance on behalf of any Person who is or was a Partner of the
Partnership against any liability asserted against such Person and incurred by
such Person in such Person's capacity as a Partner, or arising out of such
Person's status as such.
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ARTICLE 6
RIGHTS AND PROHIBITIONS AFFECTING GENERAL PARTNERS
Section 6.1 - Withdrawal of General Partner. A General Partner ceases to
be a general partner of the Partnership upon the happening of any of the events
of withdrawal described in Section 17-402 of the Act. Upon the happening of any
of the foregoing events, then the General Partnership Units of such General
Partner shall become Limited Partnership Units and such General Partner shall
become a Limited Partner of the Partnership.
Section 6.2 - Additional General Partners. Notwithstanding anything to the
contrary contained herein, after the filing of the Partnership's original
Certificate of Limited Partnership, additional General Partners may be admitted
only with the written consent of all the Partners. A Person shall be admitted to
the Partnership as an additional General Partner upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page to this
Agreement.
ARTICLE 7
RIGHTS AND PROHIBITIONS AFFECTING LIMITED PARTNERS
Section 7.1 - Rights, Powers, and Restrictions. Without limiting any
rights conferred to a Limited Partner under the Act, a Limited Partner's rights,
powers and restrictions in the Partnership shall be the same (except as to
management rights and operation of the Partnership business) as the General
Partner's rights, powers and restrictions in the Partnership, provided that no
rights, powers and restrictions are conferred herein to a Limited Partner, as a
Limited Partner, which would cause such Limited Partner to be liable or cause
such Limited Partner to be treated as or like a general partner in whole or in
part under the Act.
Section 7.2 - Limitation on Withdrawal. Except as otherwise provided in
the Act, a Limited Partner may not withdraw from the Partnership prior to the
dissolution and winding up of the Partnership.
Section 7.3 - Additional Limited Partners. Except as provided in Article 8
herein, after the filing of the Partnership's original Certificate of Limited
Partnership, additional Limited Partners may only be admitted by the General
Partner. The amount of Units to be issued to the Limited Partner shall be
determined by the General Partner, taking into account the value of said Capital
Contribution and the then net fair market value of the underlying Partnership
property after the contribution. A Person shall be admitted to the Partnership
as an additional Limited Partner upon its execution of an instrument signifying
its agreement to be bound by the terms and conditions of this Agreement, which
instrument may be a counterpart signature page to this Agreement.
Section 7.4 - Voting - Limited Partners. All matters contained in this
Agreement requiring the approval of the holders of Limited Partnership Units,
and any matter upon which the General Partner shall determine in its reasonable
discretion to require approval of the holders of Limited Partnership Units,
shall be voted on by such holders in accordance with the provisions of this
Section
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7.4. The vote shall be conducted by the General Partner which, contained within
its authority and without limitation thereof, shall have the authority to
establish a "record date" to establish ownership of Limited Partnership Units in
the Partnership and to conduct a vote by mail. Alternatively, the vote of the
holders may be taken at a meeting of all of the Partners. The General Partner
shall give at least three (3) days' prior notice of such a meeting to all
holders of Limited Partnership Units entitled to vote thereat, and such notice
shall specify the date, time, and location of the meeting, and the matters to be
discussed and voted upon. Each Limited Partner shall be entitled to one vote for
each Limited Partnership Unit owned.
ARTICLE 8
TRANSFER OF INTEREST; WITHDRAWAL
Section 8.1 - Unrestricted Transfers. Except as otherwise limited under
the Act or this Agreement, and subject to applicable law, a Partner may transfer
all or any part of its Units in the Partnership by gift, sale or other transfer.
Section 8.2 - Right of First Refusal. No Partner shall have the right or
power to sell, assign, transfer or otherwise dispose of any part of such
Partner's Units in the Partnership except in accordance with the following
provisions of this Agreement:
a. Option to Other Partners. No Partner shall transfer any Units to any
Person without first offering to sell such Units to the other
Partners at the same price and on the same terms as such Partner
received in a bona fide offer from a third party, as such offer is
defined in subparagraph (e) below. Each offeree Partner shall have
the option to purchase all or less than all of its proportionate
share of such offered Units (determined by the ratio of its then
holdings of the outstanding Units to the total holdings of all of
the offeree Partners) at the price and upon the terms set forth in
the bona fide offer; provided, however, if any offeree Partner does
not purchase its full share of the offered Units, the unaccepted
Units may be purchased by the other offeree Partners. To exercise
the option, an offeree Partner shall notify the transferring
Partner, in writing, within thirty (30) days from the date the
offeree Partner receives the offer.
b. Option to the Partnership. If the offeree Partners elect to purchase
less than all of the Units offered pursuant to subparagraph (a)
above, the transferring Partner shall offer any remaining Units to
the Partnership at the same price and on the same terms as such
Partner received in a bona fide offer from a third party, as such
offer is defined in subparagraph (e) below. The Partnership shall
have the option to purchase all, but not less than all, of such
remaining offered Units at the same price and on the same terms as
set forth in the bona fide offer. The determination to exercise the
option of the Partnership to purchase the offered Units shall be
made by a majority of the offeree Partners. To exercise the option,
the Partnership shall notify the
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transferring Partner, in writing, within thirty (30) days from the
date the Partnership receives the offer.
c. Closing. If the offeree Partners and the Partnership collectively
exercise their options to purchase all of the Units offered pursuant
to subparagraphs (a) and (b) above, the closing of the purchase(s)
of such Units by the offeree Partners or the Partnership, or both,
pursuant to this Section 8.2 shall take place on the latest of: (i)
the date specified in the offer; or (ii) thirty (30) days after the
transferring Partner is notified of the exercise of the option(s) to
purchase all of the offered Units by the offeree Partners or the
Partnership, or both.
d. Failure to Exercise Options. If the offeree Partners and the
Partnership do not collectively exercise their options to purchase
all of the Units offered pursuant to subparagraphs (a) and (b)
above, then any exercise of the option to purchase by an offeree
Partner or the Partnership, or both, shall become void, and all, but
not less than all, of the offered Units may be sold to a bona fide
third party purchaser at the same price and on the same terms as
were offered to the offeree Partners and Partnership, and such
purchaser shall hold such Units subject to the provisions of this
Agreement. If such sale is not consummated within sixty (60) days
after the expiration date of the Partnership's option period, such
Units shall again become subject to the offer procedure of this
Section 8.2.
▇. ▇▇▇▇ Fide Offer. A bona fide offer is a legally enforceable, written
offer in good faith from a Person, other than an affiliate of the
offeror Partner, financially capable of carrying out its terms,
which offer shall be available for inspection upon request of any
party.
Section 8.3 - Transferees. Units transferred pursuant to this Article 8
shall be and remain subject to all of the provisions of this Agreement and the
Partnership shall be deemed to continue with the remaining Partners on the same
terms (except as the Partners' Interests and Units in the Partnership may
thereby be affected) as set forth in this Agreement.
Section 8.4 - Admission of Transferees. A transferee of General
Partnership Units shall be admitted as a substitute General Partner upon its
execution of an instrument signifying its agreement to be bound by the terms and
conditions of this Agreement, which instrument may be a counterpart signature
page to this Agreement. Such admission shall be deemed effective immediately
prior to the transfer and, immediately following such admission, the
transferring General Partner shall cease to be a general partner of the
Partnership to the extent of the General Partnership Units transferred, and the
parties hereby agree that following such transfer, any remaining General
Partners of the Partnership, including a substitute General Partner, are hereby
authorized to, and shall, continue the business of the Partnership without
dissolution. A transferee of Limited Partnership Interests shall be admitted to
the Partnership as a limited partner of the Partnership upon its execution of an
instrument signifying its agreement to be bound by the terms and conditions of
this Agreement, which instrument may be a counterpart signature page to this
Agreement. Such admission shall be deemed effective immediately prior to the
transfer and, immediately following such admission, the
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transferor Limited Partner shall cease to be a limited partner of the
Partnership to the extent of the Limited Partnership Units transferred.
Section 8.5 - Compliance. Any purported transfer of Units not in
compliance with this Article 8 shall be null and void. Any transfer of Units
shall be deemed effective as of the last day of the calendar month in which the
last of the conditions specified in this Article 8 is satisfied.
Section 8.6 - Withdrawal of a General Partner. In the event of the
withdrawal of a General Partner, the Partnership shall continue, provided there
is at least one other General Partner.
Section 8.7 - Withdrawal of Sole General Partner. In the event of the
withdrawal of the sole remaining General Partner, the remaining Limited Partner
or Partners may, by unanimous agreement (within ninety (90) days after notice of
any such event), elect to continue the Partnership and designate a new General
Partner or General Partners, if it or they shall consent to and accept such
designation or designations.
ARTICLE 9
DISSOLUTION; TERMINATION OF THE PARTNERSHIP
Section 9.1 - Causes of Termination. The Partnership shall dissolve upon
the earliest of the following events (each a "Liquidating Event"):
a. The unanimous written consent of all Partners;
b. The sale, transfer or other disposition of all or substantially all
of the Partnership's assets;
c. The withdrawal of the sole remaining General Partner unless the
Partnership is continued in accordance with Section 8.7 of this
Agreement or the Act;
d. Upon entry of a decree of judicial dissolution; or
e. There are no limited partners of the Partnership unless the business
of the Partnership is continued in accordance with the Act.
Section 9.2 - Liquidation. Upon the occurrence of a Liquidating Event, the
Partnership shall continue solely for the purposes of winding up its affairs in
an orderly manner, liquidating its assets, and satisfying the claims of its
creditors and Partners, and no Partner shall take any action that is
inconsistent with, or not necessary to or appropriate for, winding up the
Partnership's business and affairs. To the extent not inconsistent with the
foregoing, all covenants and obligations in this Agreement shall continue in
full force and effect until such time as the assets have been distributed
pursuant to this Section 9.2 and the Partnership is terminated. the General
Partner (or if there is no General Partner, a Limited Partner designated by a
majority of the Limited Partners) (the "Liquidator") shall be responsible for
overseeing the winding up of the Partnership, shall take full
12
account of the Partnership's assets and liabilities, and shall apply and
distribute the assets in kind or distribute the proceeds therefrom in the
following order and priority:
a. First, to the satisfaction (whether by payment or the reasonable
provision for payment thereof) of the expenses of liquidation and
the expenses, debts and liabilities of the Partnership, excluding
any loans or advances that may have been made by any Partner to the
Partnership;
b. Second, to the repayment of any loans or advances that may have been
made by any Partner (including the Loans) to the Partnership, but if
the amount available for such repayment shall be insufficient, then
pro rata on account thereof; and
c. The balance to the Partners in proportion to their respective
positive Capital Account balances (as determined after giving effect
to all contributions, distributions and allocations for all fiscal
years of the Partnership, including the fiscal year during which the
dissolution of the Partnership occurs).
No Partner shall receive any additional compensation for any services performed
pursuant to this Section 9.2. This Section 9.2 shall not apply in the case of a
Regulatory Liquidation.
Section 9.3 - Final Accounting. Each Partner (or such Partner's personal
representative) shall be furnished with a statement prepared by the Liquidator
that shall set forth the assets and liabilities of the Partnership as of the
date of dissolution. Upon compliance with the foregoing distribution plan, the
Limited Partner or Partners shall cease to be such, and the Liquidator shall
execute and cause to be filed, distributed, or published any and all notices and
documents as may be necessary or appropriate to terminate the Partnership.
ARTICLE 10
MISCELLANEOUS
Section 10.1 - Governing Law. This Agreement and the Partnership shall be
governed by and construed under the laws of the State of Delaware excluding its
choice of law principles that would require the application of the laws of
another jurisdiction. The Partners consent to the jurisdiction of the courts of
the State of Delaware and agree that any action arising out of or to enforce
this Agreement must be brought and maintained in New Castle County, Delaware.
Section 10.2 - Amendments. This Agreement may be amended by the General
Partner to: (a) reflect the disposition by a Limited Partner of all or any part
of such Limited Partner's Units (subject to the provisions hereof); (b) reflect
the substitution or addition of a Person becoming a Limited Partner (subject to
the provisions hereof); or (c) cure any ambiguity or correct or supplement any
provision herein which may be inconsistent with any other provision herein. All
other amendments to this Agreement shall require the unanimous written consent
of all the Partners.
13
Section 10.3 - Further Action. As required from time to time in
furtherance of the business of the Partnership, the parties hereto agree to
execute and deliver all documents, provide all information and take or refrain
from taking all such action as may be necessary or appropriate to achieve the
purposes of this Agreement.
Section 10.4 - Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and, subject to the provisions
hereof, their respective heirs, executors, successors, assigns and personal
representatives.
Section 10.5 - Ratification. Each Partner shall, and does hereby ratify
each, every, and all of the acts heretofore accomplished and/or performed by the
Partners and their agents for or on behalf of the Partnership prior to the
execution of this Agreement.
Section 10.6 - Entire Agreement. This Agreement contains the entire
understanding among the parties and supersedes any prior understanding and
agreements among them with respect to the subject matter hereof. There are no
representations, agreements, arrangements, or understandings, oral or written,
between and among the parties hereto relating to the subject matter of this
Agreement which are not fully expressed herein
Section 10.7 - Headings, Etc. The use of the term "this Agreement" and/or
the words "herein", "hereof", "hereunder" and other similar compounds of the
word "here" shall refer to this entire instrument (and any agreement
supplemental to this instrument) and not merely to any particular article,
section, paragraph, provision or item. Unless something in the subject matter or
the context is inconsistent therewith, references herein to articles, sections
and paragraphs are to articles, sections and paragraphs of this Agreement.
Whenever in this Agreement the word "including" is used, it shall be deemed to
be for purposes of identifying only one or more of the possible alternatives,
and the entire provision in which such word appears shall be read as if the
phrase "including without limitation" were actually used in the text. The
titles, headings or captions contained in this Agreement are for convenience of
reference only and in no way define, limit, extend, or describe the scope of
this Agreement or the intent of any of the provisions hereof. As used in this
Agreement, the word Partner, General Partner and any pronoun used in designation
thereof shall be construed to include the plural as well as the singular number,
and the masculine, feminine, and/or neuter gender, as appropriate to the
designation of the party or parties to which such words refer.
Section 10.8 - Severability. If any provision of this Agreement, or the
application thereof to any Person or circumstances, shall, for any reason and to
any extent, be invalid or unenforceable, the remainder of this Agreement and the
application of such provision to other Persons or circumstances shall not be
affected thereby, but rather shall be enforced to the greatest extent permitted
by law.
Section 10.9 - Notices. Notice to Partners or to the Partnership shall be
deemed to have been given when mailed by prepaid certified mail, return receipt
requested, to the addresses set forth in Exhibit A, unless a more current
address appears on the books and records of the Partnership or has been provided
by a Partner in writing delivered to the Partnership, or to the Partnership at
the location of the principal place of business of the Partnership stated in
Section 1.4 hereof.
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Section 10.10 - Power of Attorney. The Limited Partner irrevocably
constitutes and appoints the General Partner as its true and lawful attorney,
with full power of substitution, in its name, place and stead to make, execute,
swear to, acknowledge, certify, deliver, file and record:
a. All certificates of limited partnership, certificates of doing
business under an assumed name and any other certificates or
instruments which may be required to be filed by the Partnership or
the Partners under the laws of the State of Delaware or any other
jurisdiction;
b. One or more certificates of cancellation of the Partnership and such
other instruments or documents as may be deemed necessary or
desirable by the General Partner upon completion of the winding up
of the Partnership;
c. Any and all amendments of the instruments described in Sections
10.10(a) and 10.10(b) above, provided such amendments are either
required by law or are consistent with the provisions of this
Agreement or have been authorized by the Limited Partner; and
d. Any and all other instruments as may be deemed necessary or
desirable by the General Partner to carry out fully the provisions
of this Agreement in accordance with its terms.
The power of attorney granted hereby shall not constitute a waiver of, or
be used to avoid, the rights of the Limited Partner to approve amendments to
this Agreement or be used in any other manner inconsistent with the status of
the Partnership as a limited partnership.
It is expressly intended by the Limited Partner that the foregoing power
of attorney is coupled with an interest, is irrevocable, and shall survive the
insolvency, dissolution or termination of each such Limited Partner. The
foregoing power of attorney shall survive the delivery of an assignment by the
Limited Partner of its entire interest in the Partnership, except that where an
assignee of such entire interest has become a substitute Limited Partner, then
the foregoing power of attorney of the assignor Limited Partner shall survive
the delivery of such assignment for the sole purpose of enabling the General
Partner to execute, acknowledge and file any and all instruments necessary to
effectuate such substitution.
Section 10.11 - Counterparts. This Agreement and any amendments hereto may
be executed in multiple counterparts, each of which shall be deemed an original
and all of which shall constitute one and the same instrument, binding on all
Partners, and the signature of any party to any counterpart shall be deemed to
be a signature to, and may be appended to, any other counterpart.
Section 10.12 - Exhibits. Each exhibit, schedule, or certificate attached
to this Agreement is incorporated and made a part of this Agreement for all
purposes.
[Signature page follows.]
15
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement
as of this 3rd day of December, 2004.
REGENCY CONSUMER FINANCIAL
SERVICES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
"General Partner"
FNB CONSUMER FINANCIAL
SERVICES INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: President
"Limited Partner"
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APPENDIX
Definitions
"Act" means the Delaware Revised Uniform Limited Partnership Act, Title 6,
Chapter 17 of the Delaware Code.
"Adjusted Capital Account Deficit" of a Partner means the deficit balance,
if any, in a Capital Account as of the end of the relevant fiscal year of the
Partnership, after giving effect to the following adjustments:
a. Increase such Capital Account by any amounts which such Person is
obligated to restore to the Partnership pursuant to Section
1.704-1(b)(2)(ii)(c) of the Treasury Regulations or is deemed to be
obligated to restore pursuant to the penultimate sentence of Section
1.704-2(g)(1) and Section 1.704-2(i)(5) of the Treasury Regulations;
and
b. Decrease such Capital Account by the amount of the items described
in Sections 1.704-1(b)(2)(ii)(d)(4), (5), and (6) of the Treasury
Regulations.
The foregoing definition of Adjusted Deficit Capital Account Balance is intended
to comply with Section 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and
shall be interpreted consistently therewith.
"Agreement" means this Agreement of Limited Partnership as amended from
time to time.
"Capital Account" means the amount of cash and fair market value of
services or property (net of any liabilities secured by contributed property
that the Partnership is considered to assume or take subject to under Section
752 of the Code) that a Partner has contributed to the Partnership as Capital
Contributions, adjusted as follows:
a. The Capital Account shall be increased by all Profits allocated to
such Person pursuant to Article 4 hereof;
b. The Capital Account shall be decreased by: (i) the amount of cash
and the fair market value of all property distributed to such Person
by the Partnership (net of liabilities securing such distributed
property that such Person is considered to assume or take subject to
under Section 752 of the Code) and (ii) all Losses allocated to such
Person pursuant to Article 4 hereof;
c. The Capital Account shall be credited in the case of an increase or
debited in the case of a decrease to reflect such Person's allocable
share of any adjustment to the adjusted basis of Partnership assets
pursuant to Section 734(b) of the Code to the extent provided by
Section 1.704-1(b)(2)(iv)(m) of the Treasury Regulations;
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d. The Capital Account shall be adjusted in any other manner required
by Section 1.704-1(b)(2)(iv) of the Treasury Regulations or
otherwise, in order to be deemed properly maintained for federal
income tax purposes;
e. Capital Accounts shall not bear interest; and
f. The transferee of Units shall succeed to the Capital Account
attributable to the Units transferred.
"Capital Contributions" means any contribution of cash, property or
services to the Partnership made by or on behalf of a Partner pursuant to
Article 3 (except Section 3.4) hereof. The amount of a Capital Contribution made
in property other than money shall be the fair market value, net of assumed
liabilities, of the contributed property as agreed to by the contributing
Partner and by the General Partner.
"Certificate of Limited Partnership" means the Certificate of Limited
Partnership of the Partnership as properly adopted and amended from time to time
by the Partners and filed with the Secretary of State of the State of Delaware
pursuant to the Act.
"Cash Flow" means the excess of: (a) cash realized during any given period
of time (including interest on credit extended by the Partnership in connection
with a sale, exchange or other disposition of Partnership property) by the
Partnership from (i) the ordinary course of operating the Partnership business,
(ii) insurance proceeds, (iii) proceeds of financing and refinancing, (iv)
proceeds of condemnation awards, (v) proceeds of sale of Partnership property,
and (vi) any other similar items which in accordance with federal income tax
accounting principles are attributable to capital (except Capital Contributions
by Partners), over; (b) Operating Expenses, the total amount of Working Capital
Reserves created, and principal indebtedness and other expenses paid in
connection with and out of the proceeds of any capital transaction.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Curative Allocations" means the following allocations of income, gain,
loss or deduction. Notwithstanding any provision of this Agreement to the
contrary, the General Partner shall be authorized to make such other or
different allocations of Partnership income, gain, loss or deduction to be
specially allocated pursuant to the Regulatory Allocations as the General
Partner determines in good faith to be prudent and necessary in order to both:
(a) satisfy the applicable provisions of the Code and the Treasury Regulations
issued thereunder; and (b) properly reflect and comply with the underlying
economic arrangements between the Partners as set forth and described in this
Agreement.
"General Partner" means the Person listed as general partner on Exhibit A,
as may be revised, or where the context so requires, any additional or successor
General Partner selected pursuant to the provisions of this Agreement, in its
capacity as general partner of the Partnership.
"General Partnership Units" means all outstanding Interests in the
Partnership owned by the General Partners in their capacity as General Partners
and as set forth on Exhibit A.
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"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" has the meaning specified in Section 5.2 of this Agreement.
"Interest" means each Partner's partnership interest in the Partnership.
"Issuance Items" means any income, gain, loss, or deduction realized as a
direct or indirect result of the issuance of a Unit by the Partnership to a
Partner.
"Loan" shall have the meaning set forth in Section 3.4 hereof.
"Limited Partners" means each Person who becomes a Limited Partner under
this Agreement by executing this Agreement as a Limited Partner and making the
Capital Contribution required hereunder and each Person who may become a
substitute Limited Partner pursuant to the provisions hereof and applicable law
or who acquires an Interest in the Partnership pursuant to Article 8 hereof, in
their capacities as limited partners of the Partnership, and reference to a
"Limited Partner" shall be to any one of the Limited Partners.
"Limited Partnership Units" means all outstanding Interests in the
Partnership owned by Limited Partners in their capacity as Limited Partners and
as set forth on Exhibit A.
"Liquidating Event" has the meaning set forth in Section 9.1 hereof.
"Nonrecourse Deductions" shall have the meaning set forth in Section
1.704-2(b)(1) of the Treasury Regulations.
"Nonrecourse Liability" shall have the meaning set forth in Section
1.704-2(b)(3) of the Treasury Regulations.
"Operating Expenses" means all Partnership expenses paid in the ordinary
course of operating the Partnership business, principal and interest payments on
Partnership debt and any additions to the Working Capital Reserves.
"Partner Nonrecourse Debt" shall have the meaning set forth in Section
1.704-2(b)(4) of the Treasury Regulations.
"Partner Nonrecourse Debt Minimum Gain" means, with respect to each
Partner Nonrecourse Debt, an amount equal to the Partnership Minimum Gain that
would result if such Partner Nonrecourse Debt were treated as a Nonrecourse
Liability, all as determined in accordance with Section 1.704-2(i)(3) of the
Treasury Regulations.
"Partner Nonrecourse Deductions" shall have the meaning set forth in
Sections 1.704-2(i)(1) and (2) of the Treasury Regulations.
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"Partners" means the General Partner and the Limited Partner where no
distinction is required by the context in which the term is used herein, and
reference to a "Partner" shall be to any one of the Partners.
"Partnership" means the limited partnership formed pursuant to this
Agreement and the Certificate of Limited Partnership.
"Partnership Minimum Gain" shall have the meaning set forth in Sections
1.704-2(b)(2) and 1.704-2(d) of the Treasury Regulations.
"Person" means a natural person, trust, estate, partnership, limited
liability company or any incorporated or unincorporated organization,
association or entity.
"Profits" and "Losses" mean, for each fiscal year of the Partnership, an
amount equal to the Partnership's taxable income or loss for such year,
determined in accordance with Section 703(a) of the Code as adjusted to conform
with the requirements of Section 1.704-1(b)(2)(iv)(b) of the Treasury
Regulations. Profits and Losses for any fiscal year shall be considered to have
been earned or incurred on a daily basis except that if permitted under the
applicable provisions of the Code, gains and losses arising from the disposition
of Partnership property shall be taken into account as of the date of such
disposition.
"Regulatory Allocations" means the following allocations of income, gain,
loss and deductions which shall be made in the following order:
a. Minimum Gain Chargeback. Except as otherwise provided in Section
1.704-2(f) of the Treasury Regulations, notwithstanding any
provision of this Agreement to the contrary, if there is a net
decrease in Partnership Minimum Gain during any Partnership taxable
year, each Partner shall be specially allocated items of Partnership
income and gain for such year (and, if necessary, subsequent years)
in an amount equal to such Partner's share of the net decrease in
Partnership Minimum Gain determined in accordance with Section
1.704-2(g) of the Treasury Regulations. Allocations made pursuant to
the previous sentence shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant thereto.
The items to be so allocated shall be determined in accordance with
Sections 1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury
Regulations. This provision is intended to comply with the minimum
gain chargeback requirement in Section 1.704-2(f) of the Treasury
Regulations and shall be interpreted consistent therewith.
b. Partner Minimum Gain Chargeback. Except as otherwise provided in
Section 1.704-2(i)(4) of the Treasury Regulations, notwithstanding
any provision of this Agreement to the contrary, if there is a net
decrease in Partner Nonrecourse Debt Minimum Gain attributable to a
Partner Nonrecourse Debt during any Partnership taxable year, each
Partner who has a share of the Partner Nonrecourse Debt Minimum Gain
attributable to such Partner
A-4
Nonrecourse Debt, all as determined in accordance with Section
1.704-2(i)(5) of the Treasury Regulations, shall be specially
allocated items of Partnership income and gain for such year (and,
if necessary, subsequent years) in an amount equal to such Partner's
share of the net decrease in Partner Nonrecourse Debt Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in
accordance with Section 1.704-2(i)(4) of the Treasury Regulations.
Allocations pursuant to the previous sentence shall be made in
proportion to the respective amounts required to be allocated to
each Partner pursuant thereto. The items to be so allocated shall be
determined in accordance with Sections 1.704-2(i)(4) and
1.704-2(j)(2) of the Treasury Regulations. This provision is
intended to comply with the minimum gain chargeback requirement in
Section 1.704-2(i)(4) of the Treasury Regulations and shall be
interpreted consistently therewith.
c. Qualified Income Offset. In the event any Limited Partner
unexpectedly receives any adjustments, allocations or distributions
described in Sections 1.704(b)(2)(ii)(d)(4), (5) or (6) of the
Treasury Regulations, items of Partnership income or gain
(consisting of a pro rata portion of each item of Partnership
income, including gross income and gain) shall be specially
allocated to each such Partner in an amount and in a manner
sufficient to eliminate the Adjusted Capital Account Deficit in
their Capital Accounts created by such adjustments, allocations or
distributions as quickly as possible, provided that an allocation
pursuant to this section shall be made only if and to the extent
that such Partner would have an Adjusted Capital Account Deficit
after all other allocations provided for in Article 4 have been
tentatively made as if this provision were not in this Agreement.
▇. ▇▇▇▇▇ Income Allocation. In the event any Limited Partner has a
deficit Capital Account at the end of any Partnership taxable year
which is in excess of the sum of (i) the amount such Limited Partner
is obligated to restore pursuant to any provision of this Agreement,
and (ii) the amount such Limited Partner is deemed to be obligated
to restore pursuant to the penultimate sentences of Sections
1.704-2(g)(1) and 1.704-2(i)(5) of the Treasury Regulations, each
such Limited Partner shall be specially allocated items of
Partnership income and gain in the amount of such excess as quickly
as possible, provided that an allocation pursuant to this provision
shall be made only if and to the extent that such Limited Partner
would have a deficit Capital Account in excess of such sum after all
other allocations provided for in Article 4 have been made as if
subsections (c) and (d) of this definition of Regulatory Allocations
were not in this Agreement.
e. Allocation of Nonrecourse Deductions. Nonrecourse Deductions for any
fiscal year or other period shall be specially allocated among the
Partners in proportion to their respective Capital Accounts at the
end of the Partnership taxable year for which the allocation is
made.
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f. Allocation of Partner Nonrecourse Deductions. Any Partner
Nonrecourse Deductions for any taxable year or other period shall be
specially allocated to the Partner who bears the economic risk of
loss with respect to the Partner Nonrecourse Debt to which such
Partner Nonrecourse Deductions are attributable in accordance with
Section 1.704-2(i)(1) of the Treasury Regulations.
g. Section 754 Adjustments. To the extent an adjustment to the adjusted
tax basis of any Partnership asset pursuant to Section 734(b) or
Section 743(b) of the Code is required pursuant to Section
1.704-1(b)(2)(iv)(m)(2) of the Treasury Regulations to be taken into
account in determining Capital Accounts as the result of a
distribution to a Partner in complete liquidation of its Interest,
the amount of such adjustment to Capital Accounts shall be treated
as an item of gain (if the adjustment increases the basis of the
asset) or loss (if the adjustment decreases such basis) and such
gain or loss shall be specially allocated to the Partners in
accordance with their interests in the Partnership in the event
Section 1.704-1(b)(2)(iv)(m)(2) of the Treasury Regulations applies,
or to the Partner to whom such distribution was made in the event
Section 1.704-1(b)(2)(iv)(m)(4) of the Treasury Regulations applies.
h. Allocations Relating to Taxable Issuance of Partnership Interests.
Any income, gain, loss, or deduction realized as a direct or
indirect result of any Issuance Items shall be allocated among the
Partners so that, to the extent possible, the net amount of such
Issuance Items, together with all other allocations under this
Agreement to each Partner, shall be equal to the net amount that
would have been allocated to each such Partner if the Issuance Items
had not been realized.
i. Allocation of Imputed Interest Deductions. In the event the
Partnership is entitled to a deduction for interest imputed under
any provision of the Code on any loan or advance from a Partner,
such deduction shall be allocated solely to such Partner.
j. Tax Allocations. In accordance with Section 704(c) of the Code and
any applicable Treasury Regulations thereunder, income, gain, loss
and deductions with respect to any property contributed to the
capital of the Partnership shall, solely for tax purposes (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 items
or distributions pursuant to any provisions of this Agreement), be
allocated among the Partners so as to take account of any variation
between the adjusted basis of such property to the Partnership for
federal income tax purposes and the value thereof as computed for
book purposes. In the event the value of any Partnership asset is
revalued as provided in the Treasury Regulations under Section
704(c) of the Code, subsequent allocations, for tax purposes, of
income, gain, loss, and
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deductions respecting such asset shall be made so as to take account
of any variation between the adjusted basis of such asset for
federal income tax purposes and its value, as computed then and
thereafter, for book purposes, in the same manner as under Section
704(c) of the Code and any applicable Treasury Regulations
thereunder. Any elections or decisions relating to such allocations
shall be made by the General Partner in good faith in order to both
(a) satisfy the provisions of Section 704(c) of the Code and the
applicable Treasury Regulations thereunder, and (b) properly reflect
the purpose and intention of this Agreement.
For federal, state and local income tax purposes, the income, gains,
losses and deductions of the Partnership shall, for each fiscal
year, be allocated among the Partners in the same manner and in the
same proportion that such items have been allocated among the
Partners' respective Capital Accounts.
"Regulatory Liquidation" means that the Partnership is "liquidated" within
the meaning of Section 1.704-1(b)(2)(ii)(g) of the Treasury Regulations.
Notwithstanding any other provision of Article 9 of this Agreement, in the event
the Partnership is liquidated within the meaning of Section 1.704-1(b)(2)(ii)(g)
of the Treasury Regulations but no Liquidating Event has occurred, the
Partnership shall not be dissolved, the assets of the Partnership shall not be
liquidated, the Partnership's liabilities shall not be paid or discharged, and
the Partnership's affairs shall not be wound up. Instead, solely for federal
income tax purposes, the Partnership shall be deemed to have contributed all of
its assets and liabilities to a new limited partnership. Immediately thereafter,
the Partnership shall be treated as having liquidated by distributing the
interests in the new limited partnership to the Partners (and the purchaser, if
any), followed by the continuation of the business by the new limited
partnership or its dissolution and winding up. The deemed contribution of assets
to the new limited partnership and the distribution of the new limited
partnership interests to the Partners of the Partnership shall be disregarded
for purposes of maintaining Capital Accounts. The termination of the Partnership
shall not change the Capital Accounts of the Partners or the books of the
Partnership nor shall the deemed contribution of assets to the new limited
partnership create additional Section 704(c) property.
"Securities" means any Securities authenticated and delivered under the
Indenture.
"Security Register" has the meaning specified in Section 305 of the
Indenture.
"Treasury Regulations" except where the context indicates otherwise, means
the permanent, temporary, proposed, or proposed and temporary regulations
promulgated by the Department of the Treasury under the Code as such regulations
may be changed from time to time.
"Units" means General Partnership Units and Limited Partnership Units. The
number of Units initially issued to each Partner in exchange for such Partner's
Capital Contribution is set forth on Exhibit A which shall be amended in the
event that the Partnership issues additional Units or acquires any outstanding
Units. Units shall not represent a Partner's interest in the capital of the
Partnership, which is determined solely by the Partner's Capital Account.
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"Working Capital Reserves" means Partnership funds set aside by the
General Partner for working capital reserves for all Partnership expenses,
investments, debt payments, capital improvements, replacements or contingencies.
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EXHIBIT A
AGREEMENT OF LIMITED PARTNERSHIP
OF
FNB FINANCIAL SERVICES, LP
Date: December 3, 2004
PARTNER INITIAL CAPITAL NUMBER OF NUMBER OF
AND CONTRIBUTION GENERAL LIMITED
ADDRESS AND VALUE PARTNERSHIP UNITS PARTNERSHIP UNITS INTEREST (%)
----------------------- --------------- ----------------- ----------------- ------------
Regency Consumer $ 10 1 __ 1%
Financial Services Inc.
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FNB Consumer $ 990 __ 99 99%
Financial Services Inc.
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TOTAL $ 1,000 1 99 100%
A-9