EXHIBIT 4.1
THIRD AMENDMENT TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
DATRONIC EQUIPMENT INCOME FUND XVII, L.P. (the "PARTNERSHIP")
WHEREAS, the Partnership, together with certain other partnerships has
been operated and managed by its general partner, Lease Resolution Corporation,
a Delaware non-stock corporation (the "General Partner"); and
WHEREAS, the Partnership, having completed its business operations,
wound up its affairs, distributed its remaining assets and provided its
reasonable reserves for contingent or unknown claims or obligations, is about to
formally file its Certificate of Cancellation of Limited Partnership, all in
accordance with the Delaware Revised Uniform Limited Partnership Act; and
WHEREAS, prior to such formal cessation of the Partnership's legal
existence and to provide for the cost-efficient and orderly administration and
satisfaction, if required, of any claims or obligations, in the reasonable and
best judgment of the General Partner the Agreement of Limited Partnership, as
amended, should be amended as hereinafter set forth;
NOW, THEREFORE, the undersigned, under Article XXVI of the Agreement of
Limited Partnership, as amended (the "Partnership Agreement"), of the
Partnership, and on behalf of the Limited Partners, does hereby execute the
following Third Amendment to the Partnership Agreement:
1. From and after the filing of the Certificate of Cancellation of
Limited Partnership of the Partnership, any action or proceeding with respect to
the Partnership brought by or on behalf of any former Limited Partner against
the former General Partner or any of its Affiliates, shall only be brought in
and only be subject to the jurisdiction and
venue of courts of competent jurisdiction sitting in the City of Chicago, County
of Xxxx, State of Illinois, irrespective of the law to be applied under
conflicts of law principles, provided, however, that if such action or
proceeding is solely a claim entirely derived from and dependent upon
allegations of fiduciary duties owed by the former General Partner or its
Affiliates to a former Limited Partner making such claim and none of the
allegations states a cause of action independent of equitable theories, such
action shall be within the exclusive jurisdiction of the Court of Chancery in
the State of Delaware.
2. Anything to the contrary in Article XXIII of the Partnership
Agreement notwithstanding, the following shall apply and control:
(a) The former General Partner and its Affiliates shall be
indemnified against any liability, loss or damage imposed by judgment,
and costs associated therewith, including attorneys' fees, arising from
or out of a violation of state or federal securities laws or rules,
unless otherwise ordered by a court of competent jurisdiction;
(b) The former General Partner and its Affiliates shall be
entitled to advances of funds from the appropriate Partnership-funded
reserves for legal expenses and other costs incurred as a result of any
legal action initiated against the former General Partner or its
Affiliates by a former Limited Partner; and
(c) The determination by the custodian, escrow holder, trustee
or other fiduciary in whose possession the contingent reserve funds
established by the Partnership are held (the "Escrowee") as to payments
for any indemnification or any advances of funds for legal expenses or
other costs in connection therewith shall be binding and final unless
otherwise ordered by a court of competent
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jurisdiction in accordance herewith. Such Escrowee may but need not
seek advice of independent counsel prior to making any such payment of
indemnification or advancing any such funds.
WHEREFORE, the undersigned, hereby executes this Third Amendment to the
Agreement effective as of the 1st day of May, 2002.
GENERAL PARTNER:
Lease Resolution Corporation
By: /s/ Xxxxxx X. Xxxxxxx
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Its: President
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LIMITED PARTNERS:
By: Lease Resolution Corporation
Attorney-in-Fact for each of the Limited Partners
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Its: President
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