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Document Preview Agreement of Limited Partnership |
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Title: |
Agreement of Limited Partnership |
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Entities: |
First Investors Financial Services Group Inc.; First Union National Bank; First Union Securities, Inc.; Wells Fargo Bank Minnesota, NA; Kilpatrick Stockton |
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Date: |
2000 |
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Size: |
Preview shows 19KB of 109KB total |
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Price: |
$54 |
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ID: |
#373590 |
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PROJECT BRAVE LIMITED PARTNERSHIP
AGREEMENT OF LIMITED PARTNERSHIP
DATED AS OF
JULY 1, 2000
{PAGE}
TABLE OF CONTENTS
PAGE
ARTICLE I....................................................................2
FORMATION AND PURPOSE........................................................2
1.1 FORMATION; CONTINUATION..................................................2
1.2 DEFINITIONS..............................................................2
1.3 NAME.....................................................................2
1.4 REGISTERED OFFICE; OTHER OFFICES.........................................2
1.5 TERM.....................................................................3
1.6 PURPOSE OF PARTNERSHIP...................................................3
1.7 INVESTMENT GUIDELINES....................................................4
ARTICLE II ADMISSION OF ADDITIONAL LIMITED PARTNERS.........................4
2.1 ADMISSION................................................................4
2.2 [RESERVED]...............................................................4
2.3 ADMISSION AMENDMENTS.....................................................4
ARTICLE III PARTNERSHIP CAPITALIZATION......................................5
3.2 [RESERVED]...............................................................5
3.3 NO INTEREST ON CONTRIBUTIONS.............................................5
3.4 LOANS....................................................................5
ARTICLE IV CAPITAL CONTRIBUTIONS............................................6
4.1 CAPITAL CONTRIBUTIONS....................................................6
4.2 NO CALLED CONTRIBUTIONS..................................................6
ARTICLE V DISTRIBUTIONS.....................................................6
5.1 AVAILABLE CASH DISTRIBUTION DATES........................................6
5.2 DISTRIBUTION INTENT; CERTAIN DEFINITIONS.................................6
5.3 NO IN-KIND DISTRIBUTIONS.................................................6
5.4 DISTRIBUTIONS UPON DISSOLUTION...........................................7
5.5 [RESERVED]...............................................................7
5.6 WITHHOLDING FROM DISTRIBUTIONS...........................................7
ARTICLE VI POWERS AND DUTIES OF THE GENERAL PARTNER.........................7
6.1 MANAGEMENT OF THE PARTNERSHIP............................................7
6.2 REPRESENTATION OF GENERAL PARTNER........................................7
6.3 POWERS OF THE GENERAL PARTNER............................................8
6.4 DUTIES OF THE GENERAL PARTNER; LIMITATION OF LIABILITY...................9
6.5 NO OTHER ACTIVITIES OF THE GENERAL PARTNER...............................9
6.6 MANAGEMENT AND ADMINISTRATIVE SERVICES AGREEMENTS.......................10
6.7 RELIANCE ON AUTHORITY OF THE GENERAL PARTNER............................10
6.8 LIMITATIONS ON AUTHORITY OF THE GENERAL PARTNER.........................10
6.9 INDEMNIFICATION.........................................................12
6.10 EXPENSES OF THE GENERAL PARTNER........................................12
6.11 REMOVAL OF THE GENERAL PARTNER.........................................12
6.12 EXPENSES OF THE PARTNERSHIP............................................13
ARTICLE VII POWERS, RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS.............13
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{PAGE}
ARTICLE VIII................................................................14
[RESERVED]..................................................................14
ARTICLE IX MEETINGS OF PARTNERS; VOTING....................................14
9.1 MEETINGS................................................................14
9.2 PLACE OF MEETINGS.......................................................14
9.3 NOTICE OF MEETINGS......................................................14
9.4 MEETING OF ALL PARTNERS.................................................15
9.5 QUORUM..................................................................15
9.6 MANNER OF ACTING........................................................15
9.7 AMENDMENT...............................................................15
9.8 PROXIES.................................................................16
9.9 ACTION BY PARTNERS WITHOUT A MEETING....................................16
9.10 WAIVER OF NOTICE.......................................................16
9.11 MEETING BY TELEPHONE; ACTION BY CONSENT................................16
ARTICLE X ACCOUNTING, BOOKS AND RECORDS....................................16
10.1 ACCOUNTING METHODS.....................................................16
10.2 BOOKS AND RECORDS......................................................17
10.3 FINANCIAL REPORTS AND TAX RETURNS......................................17
10.4 GENERAL INFORMATION....................................................17
10.5 ADJUSTMENT OF TAX BASIS................................................18
10.6 CONTROVERSIES WITH INTERNAL REVENUE SERVICE............................18
ARTICLE XI..................................................................18
CAPITAL ACCOUNTS; ALLOCATIONS; TAX DISTRIBUTIONS............................18
11.1 MAINTENANCE OF CAPITAL ACCOUNTS........................................18
11.2 ALLOCATION OF PROFITS AND LOSSES.......................................19
11.3 TAX ITEMS; CONTRIBUTED AND REVALUED PROPERTY...........................20
ARTICLE XII DISQUALIFICATION AND WITHDRAWAL OF PARTNERS....................20
12.1 DISQUALIFICATION.......................................................20
12.2 WITHDRAWAL OF PARTNERS.................................................21
12.3 PAYMENT TO PARTNERS UPON WITHDRAWAL....................................22
ARTICLE XIII TRANSFER AND ASSIGNMENT OF PARTNERSHIP INTEREST...............22
13.1 GENERAL PROHIBITION....................................................22
13.2 PERMITTED TRANSFERS....................................................22
13.3 UNAUTHORIZED TRANSFERS.................................................23
ARTICLE XIV DISSOLUTION AND LIQUIDATION OF PARTNERSHIP.....................23
14.1 DISSOLUTION............................................................23
14.2 LIQUIDATION............................................................24
14.3 NO FURTHER CLAIM.......................................................25
ARTICLE XV..................................................................25
POWER OF ATTORNEY...........................................................25
ARTICLE XVI.................................................................25
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{PAGE}
DEFINITIONS.................................................................25
16.1 DEFINITIONS IN GENERAL.................................................25
16.2 CERTAIN DEFINITIONS....................................................26
ARTICLE XVII................................................................30
MISCELLANEOUS...............................................................30
17.1 ADDITIONAL DOCUMENTS...................................................30
17.2 APPLICABLE LAW.........................................................30
17.3 NOTICES................................................................30
17.4 ENTIRE AGREEMENT.......................................................31
17.5 EXTENSION NOT A WAIVER.................................................31
17.6 CREDITORS NOT BENEFITED................................................31
17.7 SEVERABILITY...........................................................31
17.8 SUCCESSORS.............................................................31
17.9 COUNTERPARTS...........................................................32
17.10 SECTION HEADINGS......................................................32
17.11 TIME..................................................................32
17.12 PRONOUNS..............................................................32
17.13 ACCEPTANCE OF PRIOR ACTS BY NEW PARTNER...............................32
17.14 PARTNERSHIP PROPERTY..................................................32
17.15 WAIVER OF ACTION FOR PARTITION........................................32
Exhibit A Partners
Exhibit B Regulatory Allocations
Exhibit C Form of Management Agreement
Exhibit D Form of Administrative Services Agreement
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{PAGE}
PROJECT BRAVE LIMITED PARTNERSHIP
THIS AGREEMENT OF LIMITED PARTNERSHIP (the "AGREEMENT") is made and
entered into as of the 1st day of July, 2000, by and between FIFS ACQUISITION
FUNDING COMPANY, L.L.C. ("FAFC") a Delaware liability company as the "GENERAL
PARTNER" and FIRST UNION INVESTORS, INC., a corporation organized under the laws
of Delaware (the "LIMITED PARTNER").
WHEREAS, General Partner heretofore entered into that certain Loan and
Security Agreement, dated as of October 2, 1998 (the "BRIDGE AGREEMENT") by and
among General Partner, as the borrower, Auto Lenders Acceptance Corporation, as
servicer and seller, VFCC, First Union Securities, Inc., as deal agent and
documentation agent, and First Union National Bank, as liquidity agent; and
WHEREAS, pursuant to the Bridge Agreement, the General Partner incurred
certain indebtedness (the "BRIDGE DEBT") and secured such Bridge Debt with a
pledge of the Collateral (as defined in the Indenture, as described below); and
WHEREAS, inasmuch as a DE FACTO partnership with respect to the ownership
of the Collateral may have been created solely for federal income tax purposes
pursuant to certain term sheets and other documents executed and/or delivered at
the time of, or in connection with, the execution and delivery of the Bridge
Agreement, which partnership's rights in said Collateral were and are subject to
the rights of the lenders under the Bridge Agreement, it being the intent of the
parties to the Bridge Agreement and such partnership that the Bridge Agreement
create a debtor/creditor relationship between the General Partner and the
lenders under the Bridge Agreement and that the Bridge Agreement provide
temporary financing of said Collateral; and
WHEREAS, the parties to the Bridge Agreement have agreed that,
contemporaneously with the formation of this partnership (the "PARTNERSHIP"),
the General Partner will transfer, subject to Bridge Debt, the Collateral to the
Partnership in exchange for its Partnership interest; and
WHEREAS, the Partnership will issue certain asset-backed notes (the
"NOTES") under that certain Indenture dated as of August 8, 2000 by and among
the Partnership, First Union National Bank, as paying agent and Wells Fargo Bank
Minnesota, National Association, as trustee (the "INDENTURE") the proceeds of
which to be used to extinguish the Bridge Debt.
NOW, THEREFORE, for and in consideration of the foregoing premises, the
mutual covenants and agreements contained in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do hereby covenant and agree as follows:
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{PAGE}
W I T N E S S E T H:
- - - - - - - - - -
ARTICLE I
FORMATION AND PURPOSE
1.1 FORMATION; CONTINUATION.
(a) The Partners hereby acknowledge that the Partnership was formed on or
about August 8, 2000 by the filing of the Certificate of Limited Partnership
(the "CERTIFICATE") with the Secretary of State of Delaware with terms and
conditions thereof and as specified herein and the existence thereof
established. The Partners agree to continue the Partnership as a limited
partnership pursuant to the Act and other relevant laws of the State of Delaware
for the purposes the fifth recital hereof and further enumerated in SECTION 1.6
and upon the terms and conditions set forth in this Agreement.
(b) The Partners further acknowledge that solely for purposes of federal
and state income taxation from and after October 2, 1998 to the date hereof the
respective interests of the parties in and with respect to the Collateral and
any earnings thereon or proceeds therefrom (subject to the rights of the lenders
under the Bridge Agreement) shall be and has been determined on the basis of a
partnership with terms and provisions identical to the terms and conditions
hereof (with FAFC constituting the sole general partner thereof).
1.2 DEFINITIONS
Certain capitalized terms not otherwise defined in the body of this
Agreement are defined in ARTICLE XVI and the Indenture.
1.3 NAME.
The name of the Partnership shall be, and the business of the Partnership
shall be conducted under, the firm name: PROJECT BRAVE LIMITED PARTNERSHIP,
unless the General Partner changes the Partnership's name or implements a
different trade name for the business of the Partnership.
1.4 REGISTERED OFFICE; OTHER OFFICES.
(a) The registered office of the Partnership in the State of Delaware and
the office at which the records of the Partnership are maintained, is located at
1013 Centre Road, Wilmington, Delaware 19805, and its registered agent for
service of process, located at that address is Corporation Service Company. This
office may be changed, at any time and for any reason, by the General Partner or
the registered agent pursuant to the applicable provisions of the Act.
Notwithstanding the foregoing, the Partnership shall continuously maintain a
registered office in
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{PAGE}
Delaware. The General Partner may designate a different registered agent for the
Partnership by giving written notice to the Partners and by filing an
appropriate amendment to the Certificate.
(b) An office of the Partnership shall be maintained at the principal
office and principal place of business of the General Partner, which is
currently located at 675 Bering Drive, Suite 710, Houston, TX 77057. The
Partnership may have such additional offices at such other places as the General
Partner shall deem advisable. In establishing additional offices of the
Partnership, the General Partner shall do so in such a manner as to preserve the
limited liability of the Limited Partner pursuant to the laws of any
jurisdiction in which any such office may be established.
1.5 TERM.
The term of this Partnership shall continue from the date of its formation
until the date which is three (3) years after the earlier of (i) the date on
which the final payment is received on all of the Collateral and (ii) the date
on which the last item of Collateral is liquidated or otherwise disposed of,
unless sooner terminated.
1.6 PURPOSE OF PARTNERSHIP.
The purposes of the Partnership shall be:
(a) to acquire, hold, transfer, enforce its rights as obligee under, and
liquidate all Contracts, NIM Collateral, and Servicing Strips (the "ASSETS") (as
the same may be amended, modified, supplemented, restated or replaced from time
to time to achieve, among other things, gains, income, cash flow and other
benefits;
(b) to maintain all Contract Files, Charged Off Contract Lists and
Contract Lists, and all right, title, and interest of the Partnership in and to
the documents, agreements and instruments included in the Contract Files,
including, without limitation, rights of recourse of the Partnership against the
Seller;
(c) to maintain all Insurance Policies and all rights of the Issuer
in all Insurance Policies;
(d) to structure, implement and obtain the financing required for the
investment in or acquisition of the Assets or the refinancing thereof;
(e) to maintain all security interests, Liens, guaranties, mortgages and
other encumbrances in favor of or assigned or transferred to the Partnership in
and to the Assets and Financed Vehicles, and all accessions thereto and
replacements thereof;
(f) to enter into one or more Hedge Transactions with respect to
indebtedness of the Partnership; and
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{PAGE}
(g) to purchase, sell, possess, transfer, lease, license, or otherwise
deal in, and to exercise all rights, powers, privileges and other incidents of
ownership or possession with respect to Contracts and other property, whether
real or personal, tangible or intangible;
(h) to open, maintain, and close bank accounts, including to draw checks
or other orders for the payment of moneys;
(i) to file or cause to be filed financing or continuation statements in
order to establish and maintain secured creditor status for the Partnership in
the Assets; and
(j) to enter into, make and perform all contracts, agreements and other
undertakings and to take any action as may be necessary or advisable or
incidental to the carrying out of the foregoing purposes.
All such activities of the Partnership shall be referred to as the Partnership's
"Business."
1.7 INVESTMENT GUIDELINES.
The Partnership shall invest in or acquire the Assets and any other
securities, receivables or other assets investments selected by the General
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