Exhibit 10 (iiii)
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AGREEMENT OF GENERAL PARTNERSHIP
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OF
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OPL GROUP INVESTMENT PARTNERSHIP
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This PARTNERSHIP AGREEMENT, dated as of December 1, 1997, of OPL Group
Investment Partnership is entered into by and among Overseas Partners Ltd., a
Bermuda company ("OPL"), Overseas Partners Re Ltd., a Bermuda company ("OP Re"),
and those other Persons identified at any time or from time to time on Exhibit
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A.
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W I T N E S S E T H:
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WHEREAS, OPL and OP Re wish to join together to form a general partnership
under the provisions of the Xxxxxxxxxxx Xxx, 0000, and the Exempted Partnerships
Act, 1992, of Bermuda, for the purpose and on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises, the mutual promises and
agreements herein made, and other good and valuable consideration, the
undersigned hereby agree as follows:
ARTICLE I
GENERAL
For all purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
Section 1.1. Definitions.
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(a) "Act" means the Exempted Partnerships Xxx 0000 of Bermuda.
(b) "Affiliate" has the meaning specified in Section 4.7.
(c) "Agreement" means this Partnership Agreement, together with any
Exhibits or other attachments and any documents incorporated herein, as
amended from time to time.
(d) "Borrowing Partner" has the meaning specified in Section 3.1(e).
(e) "Capital Account" has the meaning specified in Section 3.1(f).
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(f) "Distribution Amount" has the meaning specified in Section 5.1.
(g) "Indemnified Parties" has the meaning specified in Section 6.3.
(h) "Investments" has the meaning specified in Section 2.2.
(i) "Liability" has the meaning specified in Section 7.1.
(j) "Liquidation" has the meaning specified in Section 8.5.
(k) "Offer" has the meaning specified in Section 5.1(a).
(l) "Offered Interest" has the meaning specified in Section 5.1(a).
(m) "Offeree" has the meaning specified in Section 5.1(a).
(n) "Offeror" has the meaning specified in Section 6.1(a).
(o) "Partner" means any of those persons identified at any time or
from time to time on Exhibit A attached hereto.
(p) "Partnership" means the partnership created pursuant to this
agreement and named in accordance with Section 2.1.
(q) "Partnership Majority" has the meaning specified in Section 2.3.
(r) "Partnership Share" has the meaning specified in Section 3.2(a).
(s) "Person" means any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization or
government or any agency or political subdivision thereof.
(t) "Resident Representative" has the meaning specified in Section
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2.6.
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(u) "Transfer Counsel" has the meaning specified in Section 6.2.
Section 1.2. References. The words "herein", "hereof" and "hereunder" and
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other words of similar import refer to this Agreement as a whole and not to any
particular section or other subdivision.
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ARTICLE II
PARTNERSHIP
Section 2.1. Name of Partnership. The name of the Partnership shall be the
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OPL Group Investment Partnership (the "Partnership"). The Partnership's
business may be conducted under any other name or names as a Partnership
Majority shall determine on notice to the Partners.
Section 2.2. Purpose and Business of the Partnership. As the Partners are
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desirous of forming a partnership in order to enhance administrative efficiency
and take advantage of the increased benefits and reduced costs ordinarily
associated with the conduct of business in such form and with larger investment
portfolios, the purpose and business of the Partnership is to invest in stocks,
warrants, options, stock futures contracts and other equity instruments and
notes, bonds, debentures, and other interest bearing instruments (collectively,
"Investments"), to own, manage and supervise Investments, to share the profits
and losses therefrom, and to engage in all other activities related, incidental
or ancillary thereto. In furtherance of this purpose, the Partnership shall
have all powers necessary, suitable or convenient for the accomplishment of this
purpose, alone or with others, as principal or agent, including, without
limitation, the following:
(a) to buy, sell and invest, directly or indirectly and with or
without other Persons, through partnerships, joint ventures or otherwise,
in equity or debt Investments, whether such Investments are readily
marketable or not;
(b) to hold, receive, mortgage, pledge, transfer, exchange, otherwise
dispose of, and otherwise deal in and exercise all rights, powers,
privileges and other incidents of ownership or possession with respect to
any Investments and other property;
(c) to open, maintain and close accounts with brokers;
(d) to open, maintain and close custody accounts and bank accounts
and draw checks and other orders for the payment of moneys;
(e) to engage outside accountants, custodians, investment advisors,
attorneys and any and all other third-party agents and assistants, both
professional and nonprofessional, including, without limitation, Affiliates
of the Partners, and to compensate them in such reasonable degree and
manner as may be deemed necessary or advisable;
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(f) to enter into, make and perform all contracts, agreements and
other undertakings and borrow such funds as may be necessary or advisable
or incident to carrying out its purpose;
(g) to xxx and be sued, to prosecute, settle or compromise all claims
against third parties, to compromise, settle or accept judgment with
respect to claims against the Partnership and to execute all documents and
make all representations, admissions and waivers in connection therewith;
and
(h) to engage in any other lawful acts or activities which are
incidental to the powers set forth in paragraphs (a) through (g) of this
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Section 2.2.
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Section 2.3. Location of the Principal Place of Business. The Partnership's
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registered office and principal place of business is Mintflower Place, 8 Par-la-
Ville Road, Xxxxxxxx XX GX, Bermuda, but the Partnership may maintain such other
location outside the United States as shall be designated by any number of
Partners which together constitute more than half of the total number of
Partners in the Partnership and which additionally have in the aggregate
Partnership Shares which in total equal a percentage greater than 50% (a
"Partnership Majority"). The Partnership shall not have an office in the United
States. The management of the Partnership shall be undertaken by the Partners
acting through the Partnership's office in Bermuda wherein the Partnership's
audited accounts and records of its acts and financial affairs shall be
maintained.
Section 2.4. Term of Partnership. The term for which the Partnership shall
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exist shall be from the date hereof until December 1, 2047, unless sooner
terminated as hereinafter provided.
Section 2.5. Property Ownership. All assets and property, whether real or
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personal, tangible or intangible, owned by the Partnership, unless otherwise
determined by a Partnership Majority, shall be owned by and held in the name of
the Partnership.
Section 2.6. Resident Representative. Codan Services Limited or such other
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body or Person as the Partnership Majority shall at any time and from time to
time determine, shall be the Resident Representative of the Partnership for the
purposes of and as required under the Act.
ARTICLE III
CONTRIBUTIONS AND ACCOUNTS
Section 3.1. Capital Contributions of the Partners.
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(a) Initial Capital Contributions. Each Partner has made or shall be
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obligated to make capital contributions to the Partnership aggregating the
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amount specified on Exhibit A as its initial capital contribution. Such
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initial capital contributions shall be made sufficiently in advance of the
time that Partnership obligations are due in order to permit such
obligations to be satisfied promptly, and in any event not later than such
time as is specified by a Partnership Majority.
(b) Subsequent Capital Contributions. The Partners may make
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additional capital contributions, in which event their partnership interest
will be amended accordingly. In the event (other than upon a Liquidation
(as defined in Section 8.5) of the Partnership or a Partner's interest in
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the Partnership) a Partnership Majority determines that additional funds
are necessary or desirable, then any Partner included in such Partnership
Majority shall be permitted to make a loan to the Partnership on the terms
provided in Section 3.1(d). A Person which acquires its Partnership
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interest in return for a capital contribution hereunder shall be treated as
a Partner for all purposes of this Agreement, including the allocations and
distributions under Section 3.2 hereof, on the date on which such Partner
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makes its initial capital contribution to the Partnership. Except as
provided in Sections 5.2 and 5.5, a Person may be admitted to the
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Partnership with the consent of all of the Partners, and a Partnership
Majority shall be permitted to make all amendments to this Agreement deemed
necessary or appropriate by it to reflect such admission, except that no
such amendment shall have the effect of altering a Partner's interest in
the profits or losses of the Partnership or Partnership interest without
such Partner's consent.
(c) Liquidation Adjustments. Without limiting Section 3.2(c), upon a
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Liquidation (as defined in Section 8.5) of the Partnership or of a
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Partner's interest in the Partnership, the Partnership shall make
adjustments to the Capital Accounts of the Partners to reflect the actual
or anticipated profits and losses allocable among the Partners in
accordance with, or as if there had been, an actual disposition of the
assets of the Partnership at their respective fair market values.
(d) Loans to Partnership. All advances or payments to the
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Partnership by any Partner prior to the Liquidation of the Partnership or
such Partner's interest, other than the capital contributions made pursuant
to Sections 3.1(a) or 3.1(b) hereof, shall be deemed to be loans by such
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Partner to the Partnership
(e) Loans from Partnership to Partners. A Partnership Majority may,
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at any time or from time to time, authorize the Partnership to make a loan
or loans to any Partner. Any such loan shall (i) entitle the Partnership
to receive interest thereon for each quarter during which the loan is
outstanding at a rate not less than the Loan Rate; (ii) be evidenced by a
duly executed demand note; (iii) be repaid by the Partner receiving such
loan (a "Borrowing Partner"), together with interest thereon as aforesaid,
before the Borrowing Partner is entitled to receive any distribution of
proceeds from dispositions of Partnership assets which are to
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be made to Partners pursuant to this Agreement; (iv) be secured by a pledge
of the Borrowing Partner's interest in the Partnership; and (v) be payable
on demand by the Partnership.
(f) Capital Accounts. The Partnership shall establish a "Capital
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Account" for each Partner which shall be determined and maintained
throughout the full term of the Partnership in accordance with Section
704(b) of the Code and Treasury regulations thereunder. "Capital Account"
shall mean the aggregate amount of capital contributions made by such
Partner to the Partnership (i) reduced by (1) any losses allocated to such
Partner, (2) any distributions made to such Partner, and (3) such Partner's
distributive share of Partnership expenditures, and (ii) increased by any
profits allocated to such Partner. The Capital Account of each Partner
shall reflect all prior adjustments to the Capital Account of any
predecessor holder of such Partner's interest in the Partnership or portion
thereof and any other item which is required to be reflected in a Partner's
Capital Account under the first sentence of this Section 3.1(f) or
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otherwise under this Agreement.
Section 3.2. Partnership Shares.
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(a) Partnership Share. The share of each Partner in the Partnership
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("Partnership Share") shall be as set forth after its respective name in
Exhibit A attached hereto. Except as provided in the last sentence of
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Section 3.2(b) with respect to adjustments in accordance with Section
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704(c) of the Code, Partnership Shares shall be determined in proportion to
the capital contributions of the Partners.
(b) Allocation of Profits, Losses and Credits. Subject to the last
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sentence of this Section 3.2(b), the profits, losses and credits of the
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Partnership (whether from operations, from the sale, exchange or other
disposition of assets of the Partnership, or otherwise) shall be allocated among
the Partners in accordance with their Partnership Shares as aforesaid.
"Profits" or "losses" as used herein shall include, without limitation, each
item of Partnership income, gain, loss and deduction. Upon the admission to the
Partnership of any other Person not already a Partner, and upon the making by
any existing Partner of an additional capital contribution (where less than all
existing Partners then make additional capital contributions in equal amounts),
the Partnership shall adjust Capital Accounts and Partnership Shares in
accordance with Section 704(c) of the Code and subsequent allocations of profits
and losses (which include items thereof) shall be made under Section 704(c) of
the Code to take into account such adjustments.
(c) Distributions. All distributions (other than distributions in
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connection with a Liquidation (as defined in Section 8.5) of the
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Partnership or of any Partner's interest in the Partnership) to the
Partners of assets of the Partnership, including, but not limited to,
distributions of the net proceeds of
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sales by and loans to the Partnership, shall be made to the Partners in
accordance with their Partnership Shares within 24 hours of demand, as
aforesaid. Distributions in connection with a Liquidation (as defined in
Section 8.5) of the Partnership or of any Partner's interest in the
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Partnership shall be made in accordance with Section 8.5.
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ARTICLE IV
MANAGEMENT AND ADMINISTRATION
Section 4.1. Authority. Subject to the terms and conditions of this
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Agreement, all decisions regarding the Partnership and the management and
control of its affairs shall be made by a Partnership Majority. A Partner may
delegate its authority to another Partner or may delegate authority for specific
actions to any agent or third party subject to the control of the delegating
Partner. The Partners shall, except as otherwise provided herein, have all of
the rights and powers of general partners as provided in the Act and as
otherwise provided by law.
Section 4.2. Action by the Partnership.
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(a) The Partnership shall act either by resolution adopted at a
meeting of the Partnership, held either in Person or by telephone, or
without a meeting by written consent as evidenced by an instrument signed
(or several instruments in like form together signed) by a delegate or
representative of each Partner or by cable, telex or facsimile in such
manner as such representatives shall unanimously agree. The presence of
each Partner's delegate or representative shall constitute a quorum for
meetings or acts of the Partnership. All meetings of the Partnership shall
be conducted at the Partnership's principal office or such other place
outside the United States as the Partners may agree.
(b) An act of the Partnership shall require the vote or consent of
the delegates or representatives of Partners constituting not less than a
Partnership Majority.
Section 4.3. Action Within The United States. Each Partner shall be
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prevented from taking any action on behalf of the Partnership from a location
within the United States without first obtaining oral or written advice from
legal counsel that such action will not cause the Partnership to be engaged in a
United States trade or business.
Section 4.4. United States Office. The Partnership shall not maintain any
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office or other fixed place of business within the United States, or hold itself
out to the public as maintaining an office or fixed place of business within the
United States.
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Section 4.5. Appointments and Removals. Appointments and removals of its
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delegates and representatives by a Partner shall be effective upon written
notice thereof given to the other Partners.
Section 4.6. Acts by Partners. No Partner shall take, or commit the
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Partnership to take, any action, either in its own name in respect of the
Partnership or in the name of the Partnership, without the prior written
approval of a Partnership Majority.
Section 4.7. Conflicts. No Partner shall be required (whether directly or
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through its delegate) to manage, or participate in the management of the
Partnership as its sole and exclusive function, and it may have other investment
interests and may engage in other activities in addition to those relating to
the Partnership, including the making or management of other investments.
Subject to the foregoing, any Partner may manage or participate in the
management of, the Partnership with the prior consent of a Partnership Majority.
Without limitation on the foregoing, each Partner recognizes that the other
Partners have the authority to make other investments and that the other
Partners have made and will make other types of investments. Neither the
Partnership nor any Partner shall have any right by virtue of this Agreement or
the Partnership relationship created hereby in or to such other ventures or
activities or to the income or proceeds derived therefrom, and the pursuit of
such ventures and activities by each Partner, even if competitive with the
affairs of any of the other Partners or the Partnership, is hereby consented to
by each Partner and shall not be deemed wrongful or improper. Except as
otherwise provided in this Agreement, no Partner nor any Affiliate (as
hereinafter defined) of a Partner shall be obligated to present any particular
investment opportunity to the Partnership even if such opportunity is of a
character which, if presented to the Partnership, could be taken by the
Partnership, and such Partner and each Affiliate of a Partner shall have the
right to take for its own account, or to recommend to others, any such
particular investment opportunity. "Affiliate(s)" of a Person means (x) any
officer, director, trustee, employee, shareholder, partner or relative within
the third degree of kindred of such Person; (y) any corporation, partnership,
trust or other entity directly or indirectly controlling, controlled by, under
common control with, or advising or managing such Person; and (z) any officer,
director, trustee, shareholder, general partner or employee of any entity
described in clause (y) above.
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ARTICLE V
TRANSFER OR ASSIGNMENT OF PARTNERSHIP SHARE
5.1. Right of First Refusal.
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(a) Subject to Sections 5.2 and 5.5, if any Partner (the "Offeror")
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desires to sell or offer for sale or otherwise transfer from time to time
all or any portion of the Offeror's interest in the Partnership (all or
such portion is
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hereinafter referred to as the "Offered Interest"), the Offeror shall first
furnish to each other Partner (an "Offeree") a document setting forth the
proposed purchase terms of the bona fide offer for purchase of the Offered
Interest for a specific dollar amount (the "Offer"), which document shall
include the name and address of the proposed purchaser of the Offered
Interest. For a period of 30 days after the receipt by an Offeree of the
description of the Offer, an Offeree shall have a right of first refusal to
purchase the Offered Interest which such Offeree must exercise by notice in
writing to the Offeror within such 30 day period.
(b) In the event that an Offeree shall have timely exercised its
right of first refusal, the Offeror shall sell the Offered Interest to the
Offeree, the Offeree shall pay the price specified in the Offer to the
Offeror, and the parties shall otherwise consummate said transaction no
later than 90 days after the date of delivery of the description of the
Offer to the Offeree; provided that if more than one Offeree shall have
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timely exercised such right of first refusal, such sale, payment and
consummation of said transaction shall be made with such Offerees on a
basis which is consistent with their proportionate interests in the
Partnership.
(c) If no Offeree timely exercises such right of first refusal with
respect to the Offer, the Offeror shall then have a period of 60 days from
the date on which such right of first refusal shall have expired to
consummate the sale of all of the Offered Interest to the proposed
purchaser identified in the document describing the Offer and on terms no
more favorable to the purchaser than those terms offered to Offerees as set
forth in the Offer. If the sale is not consummated by the Offeror pursuant
to the Offer within such 60 day period, the Offeror may not transfer or
assign any interest in the Partnership owned by it except in accordance
with the offer and notice provisions contained herein.
Section 5.2. Deferral of Transfers and Assignments. Any proposed transfer or
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assignment of all or part of a Partner's interest in the Partnership, whether to
another Partner or to a third party, shall not be effective if as a result
thereof the Partnership would (in the opinion of counsel selected in good faith
by the non-transferring or non-assigning Partner with the largest Partnership
Share ("Transfer Counsel")) terminate for U.S. tax purposes. If the prohibition
set forth in the immediately preceding sentence would be operative as a result
of the consequence specified in clause (a) upon a proposed transfer or
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assignment of an interest in the Partnership from one Partner to another
Partner, the Partners hereby agree to negotiate in good faith to defer the
transfer of portions of the interest to be transferred so that the transfer of
no portion (i.e., neither the deferred portion nor the non-deferred portion)
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would cause the Partnership to terminate for U.S. tax purposes.
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Section 5.3. Binding Agreement. Any party or Person to whom a Partnership
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interest is assigned shall be subject to and bound by all of the provisions of
this Agreement as if originally a party to this Agreement.
Section 5.4. Liability Following Transfer or Assignment. A Partner shall
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have no liability hereunder (including, but not limited to, any liability as a
surety) for any obligations accruing under or in connection with the Partnership
after such Partner shall have transferred or assigned its entire Partnership
interest in accordance with this Agreement.
Section 5.5. Permitted Transferees or Assignees. Any transfer or assignment
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of all or part of a Partner's interest in the Partnership shall not be
effective, without the consent of all of the non-transferring or non-assigning
Partners. Without limitation to the foregoing, a transferee or assignee of a
Partnership interest who does not receive such consent has no right to require
that any information or account of Partnership transactions be disclosed, to
inspect the Partnership's books, to vote on Partnership matters, to request a
meeting of the Partnership or to exercise any of the other rights of a Partner
other than to receive the share of cash and taxable income, gains, losses,
deductions or credits to which his assignor or transferor would otherwise be
entitled.
ARTICLE VI
SCOPE OF PARTNERSHIP
Section 6.1. Liability to Partnership and Other Partners. Except as
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otherwise specifically provided in this Agreement or by further written
agreement between the Partners, a Partner shall not act for, or assume any
obligation or responsibility on behalf of, the other Partners or the
Partnership. Each Partner hereby acknowledges, as among the Partners and the
Partnership, responsibility for the liabilities and obligations of the
Partnership incurred in accordance with the terms of this Agreement pro rata in
proportion to its Partnership interest. In furtherance of the foregoing, if a
Partner or any Affiliate of a Partner shall, within its authority as set forth
in this Agreement or pursuant to a final judgment of a court of applicable
jurisdiction, pay any amount on behalf or for the account of the Partnership
with respect to (a) any liability, obligation, undertaking, damage or claim for
which the Partnership shall or may, pursuant to this Agreement or other contract
or applicable law, be liable or responsible, or (b) making good any loss or
damage sustained by, or paying any duty, cost, claim or damage incurred by, the
Partnership (each such item referred to in clauses (a) and (b) above being
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hereinafter called a "Liability"), then the Partnership shall reimburse such
Partner for such amount as shall have been so paid by such Partner. For
purposes of this Article VI, any Liability arising as a result of the
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insufficiency of any reserve established in connection with the dissolution of
the Partnership shall in each case be deemed to be a Liability of the
Partnership. No Partner shall be liable to any other Partner for any act
undertaken by such Partner in accordance with the terms of the obligations of
such Partner under
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this Agreement. Notwithstanding anything to the contrary contained in this
Section 7.1 or elsewhere in this Agreement, under no circumstances shall any
Partner have any right, power or authority to pay any obligation of any other
Partner or to use Partnership property or assets for the payment of any
obligation of any Partner.
Section 6.2. Limitation on Liability of the Resident Representative;
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Indemnification. Notwithstanding anything to the contrary in this Article VI,
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neither the Resident Representative, nor any director, officer or employee of
the Resident Representative, shall be liable for any action taken or omitted to
be taken by them hereunder or in connection herewith, except for their own gross
negligence, fraud or dishonesty. The Partners hereby agree to reimburse the
Resident Representative, on demand, for all reasonable out-of-pocket costs and
expenses incurred by the Resident Representative in connection with its duties
hereunder, including without limitation all costs and expenses of the
enforcement of this Agreement (including, without limitation, costs and expenses
incurred by any agent employed by the Resident Representative) and agree to
indemnify (which indemnification shall survive any termination of this
Agreement) and hold harmless the Resident Representative (and any such agent)
from and against any and all liability incurred by the Resident Representative
(or such agent) hereunder or in connection herewith, unless, and solely to the
extent that, such liability shall be due to gross negligence, fraud or
dishonesty on the part of the Resident Representative or such agent.
Section 6.3. Indemnification. The Partnership shall indemnify (which
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indemnification shall survive any termination of this Agreement) and hold
harmless each Partner and the Resident Representative, any Affiliate of any
Partner or the Resident Representative and any trustee, officer, director,
shareholder, employee or partner of any such Affiliate (the "Indemnified
Parties") from and against any loss, expense, damage or injury suffered or
sustained by any Indemnified Party by reason of any acts, omissions or alleged
acts or omissions arising out of its activities on behalf of the Partnership or
in furtherance of the interests of the Partnership, including, but not limited
to, any judgment, award, settlement, reasonable attorneys' fees and other costs
and expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided that the acts or omissions or alleged acts
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or omissions upon which such actual or threatened action, proceeding or claim is
based were not due to any gross negligence, fraud or dishonesty on the part of
the Indemnification Party.
ARTICLE VII
FINANCIAL MATTERS
Section 7.1. Investments. The funds of the Partnership shall be invested in
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Investments. All such investment activities shall be conducted by financial
institutions or investment managers selected by a Partnership Majority.
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Section 7.2. Books and Records of the Partnership; Fiscal Year. The
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Partnership shall keep and maintain the books and records of the Partnership at
the principal place of business of the Partnership. The fiscal year of the
Partnership shall end on the 31st of December in each year. The books of the
Partnership shall be kept on the cash basis or the accrual basis, and the
Partnership shall be on the cash basis or accrual basis for U.S. tax purposes,
as determined by a Partnership Majority. The books and records of the
Partnership shall be audited at such times and by such accountants as shall be
determined from time to time by a Partnership Majority, and until and subject to
such determination, which may be for a restricted period, the parties hereto
jointly and severally agree pursuant to the Act that no Financial Statement or
auditor's report thereon otherwise required by the Act for any period need be
prepared for the Partnership. The funds of the Partnership which are not
invested in the Investments shall be deposited in such bank accounts or invested
in such interest-bearing or non-interest-bearing investments, as shall be
designated by a Partnership Majority.
ARTICLE VIII
DISSOLUTION OF THE PARTNERSHIP
Section 8.1. Exclusivity. No act, thing, occurrence, event or circumstance
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shall cause or result in the dissolution of the Partnership, except the matters
specified in Section 8.2 below.
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Section 8.2. Dissolution Events and Other Matters. The happening of any one
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of the following events or other matters shall cause an immediate dissolution of
the Partnership:
(a) The bankruptcy, resignation, dissolution or expulsion of a
Partner;
(b) The sale of all or substantially all of the assets of the
Partnership (except that if at least a portion of the purchase price of
such sale is evidenced by a promissory note, the Partnership will not be
dissolved by reason of such sale as long as the Partnership is the holder
of such promissory note);
(c) The agreement in writing by a Partnership Majority to dissolve
the Partnership; or
(d) The expiration of the term of the Partnership pursuant to Section
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2.4 hereof.
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Without limiting the other provisions hereof, the admission of a new Partner
shall not cause a dissolution of the Partnership.
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Section 8.3. Post-Dissolution Matters. Upon the occurrence of any of the
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events specified in Section 8.2 above, the Partners (who shall act by a
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Partnership Majority) shall commence to wind up the affairs of the Partnership
and to liquidate the Investments. The Partners and their successors and
assignees shall continue to share profits, losses, credits and basis during the
period of such liquidation in the same manner and proportion as immediately
before the dissolution. Following the payment of all debts and liabilities of
the Partnership (including any amounts owing to a Partner pursuant to loans
described in Section 3.1(d) hereof) and all expenses of liquidation and subject
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to the right of a Partnership Majority to set up such cash reserves as and for
so long as it or they may deem reasonably necessary, the proceeds of the
liquidation and any other funds of the Partnership shall be distributed to the
Partners (after deducting from a Partner's distributive share of such proceeds
any sum such Partner owes the Partnership) in accordance with Section 3.2
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hereof.
Section 8.4. Termination and Right to Distributions. Upon the completion of
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the liquidation of the Partnership and the distribution of all Partnership
funds, the Partnership shall terminate and a Partnership Majority shall execute
any and all documents required in its or their judgment to effectuate the
dissolution and termination of the Partnership. Each Partner shall look solely
to the assets of the Partnership for all distributions with respect to the
Partnership and its capital contribution thereto and its share of profits,
losses, credits and basis thereof.
Section 8.5. Specified Liquidation. Notwithstanding anything to the contrary
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in this Agreement, (a) upon Liquidation of the Partnership, the proceeds of such
Liquidation shall be distributed in accordance with the positive Capital Account
balances of the Partners and, upon Liquidation of any Partner's interest in the
Partnership, the proceeds of such Liquidation shall be distributed in accordance
with the positive Capital Account balance of such Partner, in each case as
determined after taking into account all Capital Account adjustments for the
Partnership fiscal year during which such Liquidation occurs (other than those
adjustments made pursuant to this clause (a)), by the end of such fiscal year
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(or, if later, within 90 days after the date of such Liquidation); and (b) the
Partners shall make such other adjustments to Capital Accounts and take such
other actions by the end of such fiscal year (or, if later, within 90 days after
the date of such Liquidation) which are necessary to cause the allocations of
profits, losses, credits and basis contained in this Agreement to have
"substantial economic effect" under Section 704(b) of the Code. "Liquidation"
shall mean (i) when used with reference to the Partnership, the earlier of (1)
the date upon which the Partnership is terminated under Section 708(b)(1) of the
Code or (2) the date upon which the Partnership ceases to be a going concern,
and (ii) when used with reference to any Partner, the earlier of (x) the date
upon which there is a Liquidation of the Partnership or (y) the date upon which
such Partner's entire interest in the Partnership is terminated other than by
transfer, assignment or other disposition to a Person other than the
Partnership.
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ARTICLE IX
MISCELLANEOUS
Section 9.1. Notices. Any notice which a Partner is required or may desire
-------
to give any other Partner shall be given in writing, and may be given by
personal delivery or by mailing the same by registered or certified mail, return
receipt required, and shall in addition be sent by facsimile (with receipt of
the facsimile confirmed) or by telephone, to the Partner to whom such notice is
directed at the address of such Partner as kept at the registered office of the
Partnership, subject to the right of a Partner to designate a different address
for itself by notice similarly given. Any notice so given by mail shall be
deemed to have been given on the tenth day after the same is deposited in the
mail as registered or certified matter, addressed as above provided, with
postage thereon fully prepaid or on the date, if earlier, a facsimile of, or
telephone call describing, such notice is additionally received by the
Partnership. Any such notice not given by registered or certified mail as
aforesaid shall be deemed to be given upon receipt of the same by the party to
whom the same is to be given. Any notice which a Partner is required or may
desire to give the Partnership or which the Partnership is required or may
desire to give a Partner shall be given in the same manner and shall be deemed
to be given on the applicable effective date as hereinabove provided for notices
between Partners. Each Partner shall promptly give notice to the Partnership in
the foregoing manner of any attempt by another Person to obtain control of its
assets.
Section 9.2. Amendment. This Agreement may only be amended by a written
---------
consent executed (in one or more counterparts) by all the Partners; provided,
--------
however, that, notwithstanding the foregoing, amendments may be made to this
-------
Agreement from time to time by a Partnership Majority, without the consent of
all Partners, in order to cure any ambiguity or correct any mistake, to correct
or supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Agreement which will not be inconsistent with the
provisions of this Agreement; provided, further, that no amendment shall be
-------- -------
adopted pursuant to the first proviso to this sentence unless the adoption
thereof (a) is for the benefit of or not adverse to the interests of the
Partners; (b) does not affect the intended distribution of cash or the intended
allocation of profits and losses of the Partnership among the Partners; (c) does
not affect the status of the Partnership as a partnership for U.S. Federal
income tax purposes; and (d) does not require the Partnership or any of the
Partners to submit to the laws of the United States or any state thereof.
Section 9.3. Waivers. No waiver by a Partner or the Partnership of any
-------
breach of this Agreement shall be deemed to be a waiver of any other breach of
any kind or nature and no acceptance of payment or performance by a Partner or
the Partnership after any such breach shall be deemed to be a waiver of any
breach of this Agreement whether or not such Partner or the Partnership knows of
such breach at the time it
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accepts such payment or performance. No failure or delay on the part of a
Partner or the Partnership to exercise any right it may have shall prevent the
exercise thereof by such Partner or the Partnership, and no such failure or
delay shall operate as a waiver of any default.
Section 9.4. Integration. This Agreement constitutes the entire agreement
-----------
among the parties concerning the subject matter hereof. This Agreement
supersedes any prior agreements or understandings among the parties concerning
the subject matter hereof.
Section 9.5. Interpretation. Captions and headings contained in this
--------------
Agreement in no way define, limit or extend the scope or intent of this
Agreement or affect in any way the interpretation or construction of this
Agreement. If any provision of this Agreement, or the application of such
provision to any Person or circumstances, shall be held invalid, the remainder
of this Agreement, or the application of such provision to other Persons or
circumstances, shall not be affected thereby. All nouns and pronouns, where the
context so requires, shall be deemed to include the masculine, feminine or
neuter gender, and the singular or plural number. All references in this
Agreement to "this Agreement" or to any portion of this Agreement shall be
deemed to refer to this Agreement as it may have been amended, modified,
restated and the like from time to time.
Section 9.6. Governing Law. This Agreement and the rights and obligations of
-------------
the parties hereunder shall be governed by and interpreted in accordance with
the laws of Bermuda.
Section 9.7. Successors. Except as herein otherwise specifically provided,
----------
this Agreement shall be binding upon and inure to the benefit of the parties and
their legal representatives, successors and assigns.
Section 9.8. Execution in Counterparts. This Agreement (including any
-------------------------
amendment hereto) may be executed in several counterparts, each of which shall
be deemed an original but all of which shall constitute one and the same
instrument.
Section 9.9. Arbitration. Disputes arising out of, or in connection with,
-----------
this Agreement shall be subject to arbitration in Bermuda under the provisions
of the Bermuda International Arbitration and Cancellation Act of 1993 of
Bermuda.
Section 9.10. Remedies. If the Partnership or any party hereto obtains a
--------
judgment against any other party by reason of breach of this Agreement or
failure to comply with the provisions hereof, reasonable attorneys' fees and
expenses as fixed by the court shall be included in such judgment. Each Partner
shall be entitled to maintain, on its own behalf or on behalf of the
Partnership, any action or proceeding against any other Partner or the
Partnership (including, without limitation, any action for damages, specific
performance or declaratory relief) for or by reason of breach by such party of
this Agreement, notwithstanding the fact that any or all of the parties to such
proceeding
16
may then be Partners in the Partnership, and without dissolving the Partnership
as a partnership. No remedy conferred upon the Partnership or any Partner in
this Agreement is intended to be exclusive of any other remedy herein or by law
provided or permitted, but each shall be cumulative and shall be in addition to
every other remedy given hereunder or now or hereafter existing at law or in
equity or by statute (subject, however, to the limitations expressly herein set
forth).
Section 9.11. Power of Attorney. Each Partner, by its execution hereof,
-----------------
hereby irrevocably makes, constitutes and appoints the Representative Partner
and the Resident Representative, and each of the officers and directors as its
true and lawful agents and attorneys-in-fact, with full power of substitution
and full power and authority in its name, place and stead, to make, execute,
sign, acknowledge, swear to, record and file (i) this Agreement; (ii) any
amendment to this Agreement which has been adopted as herein provided; (iii) the
original certificate of Exempted Partnership and all amendments thereto required
or permitted by law or the provisions of this Agreement; (iv) all certificates
required or desirable in connection with distributions by the Partnership to the
Partners and other certificates and instruments deemed advisable by the Resident
Representative to carry out the provisions of this Agreement and any applicable
law or to permit the Partnership to carry on business in each jurisdiction where
the Partnership may be doing business; (v) all instruments which the Resident
Representative deems appropriate to reflect a change or modification of this
Agreement or the Partnership in accordance with this Agreement, including,
without limitation, the admission of new Partners or the substitution of
assignees as Partners pursuant to the provisions of this Agreement; (vi) all
conveyances and other instruments or papers deemed advisable by the Resident
Representative, including, without limitation, those to effect the dissolution
and termination of the Partnership; (vii) all fictitious or assumed name
certificates required or permitted to be filed on behalf of the Partnership; and
(viii) all other instruments or papers which may be required or permitted by law
to be filed on behalf of the Partnership.
17
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day
and year first above written.
Overseas Partners Ltd.
By: /s/ Xxxxx X. Xxxxxx
-------------------
Name Printed: Xxxxx X. Xxxxxx
Title: President and CEO
Overseas Partners Re Ltd.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name Printed: Xxxxxxx X. Xxxxxxx
Title: Vice President - Finance
RESIDENT REPRESENTATIVE:
By:___________________________________
Name Printed:_________________________
Title:________________________________
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__________________
EXHIBIT A
---------
Partnership Shares and
Initial Capital Contributions
-----------------------------
Partnership Initial Capital
Name of Partner Share Contributions
--------------- ----------- ---------------
Overseas Partners Ltd. 75.27% $1,306,338,762
Overseas Partners Re Ltd. 24.73% $ 429,163,887
Total: 100.00% $1,735,502,649
______________________________________
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