Exhibit 4(qqqq)
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AGREEMENT OF LIMITED PARTNERSHIP
OF
MERRILL LYNCH PREFERRED FUNDING VI, L.P.
Dated as of December 3, 1998
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Table of Contents
Page
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ARTICLE I.
FORMATION OF THE PARTNERSHIP
Section 1.01. Name...........................................................1
Section 1.02. Business of the Partnership....................................1
Section 1.03. Term...........................................................2
Section 1.04. Registered Agent and Office....................................2
Section 1.05. Principal Place of Business....................................2
Section 1.06. Name and Business Address of General Partner...................2
Section 1.07. Admission of Initial Partners..................................2
Section 1.08. Additional Partners............................................3
ARTICLE II.
DEFINED TERMS
Section 2.01. Definitions....................................................3
ARTICLE III.
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
Section 3.01. Capital Contributions..........................................4
Section 3.02. Capital Accounts...............................................5
Section 3.03. Interest on Capital Contributions..............................5
Section 3.04. Withdrawal and Return of Capital Contributions.................5
ARTICLE IV.
ALLOCATIONS; DISTRIBUTIONS
Section 4.01. Allocations of Profits and Losses..............................5
Section 4.02. Distributions..................................................5
ARTICLE V.
POWERS, RIGHTS AND DUTIES OF THE PARTNERS
Section 5.01. General Partner................................................6
Section 5.02. Limited Partners...............................................6
Section 5.03. Liability......................................................6
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ARTICLE VI.
MISCELLANEOUS
Section 6.01. Expenses.......................................................7
Section 6.02. Transfer of Interests..........................................7
Section 6.03. Dissolution of the Partnership.................................8
Section 6.04. Distribution in Liquidation....................................9
Section 6.05. Termination....................................................9
Section 6.06. Rights of Limited Partners.....................................9
Section 6.07. Amendments.....................................................9
Section 6.08. Amendment of Certificate......................................10
Section 6.09. Notices.......................................................10
Section 6.10. Entire Agreement..............................................11
Section 6.11. Governing Law.................................................11
Section 6.12. Effect........................................................11
Section 6.13. Pronouns and Number...........................................11
Section 6.14. Captions and Headings.........................................11
Section 6.15. Partial Enforceability........................................11
Section 6.16. Counterparts..................................................12
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AGREEMENT OF LIMITED PARTNERSHIP of Merrill Lynch Preferred Funding
VI, L.P. (the "Partnership"), dated as of December 3, 1998, among Merrill Lynch
& Co., Inc., a Delaware corporation (the "Company"), as the general partner, and
Merrill Lynch Group, Inc., a Delaware corporation, as the initial limited
partner (the "Initial Limited Partner").
WHEREAS, the Certificate of Limited Partnership of the Partnership
substantially in the form of Annex A was filed with the Office of the Secretary
of State of the State of Delaware on December 3, 1998;
NOW, THEREFORE, in consideration of the agreements and obligations
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE I.
FORMATION OF THE PARTNERSHIP
Section 1.01. Name.
The name of the Partnership is "Merrill Lynch Preferred Funding VI,
L.P.", as such name may be modified from time to time by the General Partner
following written notice to the Limited Partners. The Partnership business may
be conducted under the name of the Partnership or any other name deemed
advisable by the General Partner.
Section 1.02. Business of the Partnership.
The sole purpose of the Partnership is (a) to issue partnership
interests in the Partnership, including, without limitation, preferred
securities (the "Partnership Preferred Securities") and to use the proceeds
thereof to purchase, from time to time, (i) certain eligible debt investment
instruments of the Company and its eligible controlled affiliates and (ii) to a
limited extent, certain eligible debt securities of entities not affiliated with
the Company and (b) except as otherwise limited herein, to enter into, make and
perform all contracts and other undertakings, and engage in all activities and
transactions as the General Partner may reasonably deem necessary or advisable
to carry out the foregoing purpose of the Partnership.
Section 1.03. Term.
The term of the Partnership shall commence upon the filing of the
Certificate in the Office of the Secretary of State of the State of Delaware and
shall
continue until the Partnership is dissolved in accordance with the provisions of
this Agreement.
Section 1.04. Registered Agent and Office.
The Partnership's registered office, and the name and address of the
registered agent for service of process, in the State of Delaware shall be CT
Corporation, Corporate Trust Center, 1209 Orange Street, Wilmington, Delaware
19801. At any time, the General Partner may designate another registered agent
and/or registered office.
Section 1.05. Principal Place of Business.
The principal place of business of the Partnership shall be: c/o
Merrill Lynch & Co., Inc., World Financial Center, North Tower, 250 Vesey
Street, New York, New York 10281. Upon ten days written notice to the Limited
Partners, the General Partner may change the location of the Partnership's
principal place of business.
Section 1.06. Name and Business Address of General Partner.
The name and address of the General Partner are as follows:
Merrill Lynch & Co., Inc.
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281
The General Partner may change its name or business address from time to time,
in which event the General Partner shall promptly notify the Limited Partners of
any such change.
Section 1.07. Admission of Initial Partners.
The Company and the Initial Limited Partner shall be deemed admitted
to the Partnership as general partner and limited partner, respectively, upon
the formation of the Partnership.
Section 1.08. Additional Partners.
(a) The General Partner may admit additional Limited Partners. Upon
the admission of any additional Limited Partner, the Initial Limited Partner
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shall withdraw from the Partnership and shall be entitled to receive forthwith
the return of its capital contribution, without interest or deduction.
(b) The Partnership shall continue as a limited partnership under
the Act (as defined herein) after the admission of any additional Limited
Partner pursuant to this Section 1.8.
(c) The admission of additional Limited Partners pursuant to this
Section 1.8 shall be accomplished by the amendment of this Agreement of Limited
Partnership and, if required by the Act, the filing of a certificate of
amendment in the Office of the Secretary of State of the State of Delaware.
ARTICLE II.
DEFINED TERMS
Section 2.01. Definitions.
Unless the context otherwise requires, the terms defined in this
Article II shall, for the purposes of this Agreement, have the meanings herein
specified.
"Act" means the Delaware Revised Uniform Limited Partnership Act, 6
Del. C. Section 17-101, et seq., as amended from time to time.
"Agreement" means this Agreement of Limited Partnership of the
Partnership, as amended, modified, supplemented or restated from time to time.
"Capital Account" has the meaning set forth in Section 3.2.
"Certificate" means the Certificate of Limited Partnership of the
Partnership filed with the Secretary of State of the State of Delaware on
December 3, 1998 and any and all amendments thereto and restatements thereof.
"Company" has the meaning set forth in the forepart of this
Agreement.
"Fiscal Year" means (i) the period commencing upon the formation of
the Partnership and ending on the last Friday in December, 1998 and (ii) any
subsequent period commencing on the day immediately succeeding the last Friday
in December of a calendar year and ending on the last Friday in December of the
immediately succeeding calendar year.
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"General Partner" means the Company, in its capacity as general
partner of the Partnership, and any additional or successor general partner of
the Partnership admitted as a general partner of the Partnership pursuant to
this Agreement.
"Initial Limited Partner" means Merrill Lynch Group, Inc., a
Delaware corporation.
"Interest" means the entire ownership interest of a Partner in the
Partnership at any particular time, including, without limitation, its interest
in the capital, profits, losses and distributions of the Partnership.
"Limited Partner" means any Person who is admitted to the
Partnership as a limited partner of the Partnership pursuant to the terms of
this Agreement, in each such Person's capacity as a limited partner of the
Partnership.
"Partners" means the General Partner and the Limited Partners,
collectively, where no distinction is required by the context in which the term
is used.
"Partnership" means the limited partnership formed under and
pursuant to the Act and this Agreement.
"Treasury Regulations" means the income tax regulations, including
temporary regulations, promulgated under the Internal Revenue Code of 1986, as
amended, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
ARTICLE III.
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
Section 3.01. Capital Contributions.
(a) The General Partner has contributed an aggregate of $15.00 to
the capital of the Partnership, which amount is equal to at least 15% of the
total capital contributions to the Partnership on the date hereof, after taking
into account the contribution of the Initial Limited Partner referred to in
paragraph (b) of this Section 3.1. The General Partner shall from time to time
make such additional capital contributions as are necessary to maintain its
Capital Account balance at least equal to 10% of the aggregate positive Capital
Account balances of all Partners.
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(b) The Initial Limited Partner has contributed the amount of $85.00
to the capital of the Partnership. The Initial Limited Partner is not required
to make any additional capital contributions to the Partnership.
Section 3.02. Capital Accounts.
An individual capital account (a "Capital Account") shall be
established and maintained on the books of the Partnership for each Partner in
compliance with Treasury Regulation (Sec.)1.704-1(b)(2)(iv) and 1.704-2, as
amended. Subject to the preceding sentence, each Capital Account will be
credited with the capital contributions made and the profits allocated to such
Partner (or predecessor in interest) and debited by the distributions made and
losses allocated to such Partner (or predecessor in interest).
Section 3.03. Interest on Capital Contributions.
No Partner shall be entitled to interest on or with respect to any
capital contribution to the Partnership.
Section 3.04. Withdrawal and Return of Capital Contributions.
No Partner shall be entitled to withdraw any part of such Partner's
capital contribution to the Partnership or to receive any distributions from the
Partnership, except as provided in this Agreement.
ARTICLE IV.
ALLOCATIONS; DISTRIBUTIONS
Section 4.01. Allocations of Profits and Losses.
The Partnership's profits and losses shall be allocated in
proportion to the capital contributions of the Partners.
Section 4.02. Distributions.
At the time determined by the General Partner, but at least once
during each Fiscal Year, the General Partner shall cause the Partnership to
distribute any cash held by it which is not reasonably necessary for the
operation of the Partnership. Cash available for distribution shall be
distributed to the Partners in the same proportion as their then Capital Account
balances.
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ARTICLE V.
POWERS, RIGHTS AND DUTIES OF THE PARTNERS
Section 5.01. General Partner.
(a) The General Partner shall have exclusive and complete authority
and discretion to manage the operations and affairs of the Partnership and to
make all decisions regarding the business of the Partnership. Any action taken
by the General Partner shall constitute the act of and serve to bind the
Partnership. In dealing with the General Partner acting on behalf of the
Partnership, no Person shall be required to inquire into the authority of the
General Partner to bind the Partnership. Persons dealing with the Partnership
are entitled to rely conclusively on the power and authority of the General
Partner as set forth in this Agreement.
(b) The General Partner shall have all rights and powers of a
general partner under the Act, and shall have all authority, rights and powers
in the management of the Partnership business to do any and all other acts and
things necessary, proper, convenient or advisable to effectuate the purposes of
this Agreement.
Section 5.02. Limited Partners.
(a) The Limited Partners shall not participate in the management or
control of the Partnership's business, property or other assets nor shall the
Limited Partners transact any business for the Partnership, nor shall the
Limited Partners have the power to act for or bind the Partnership, said powers
being vested solely and exclusively in the General Partner.
(b) Subject to the provisions of the Act, no Limited Partner shall
be liable for the repayment, satisfaction or discharge of any debts or other
obligations of the Partnership in excess of the Capital Account balance of such
Limited Partner.
Section 5.03. Liability.
Except as expressly set forth in this Agreement, (a) the General
Partner shall not be personally liable for the return of any portion of the
capital contributions (or any return thereon) of the Limited Partners; (b) the
return of such capital contributions (or any return thereon) shall be made
solely from assets of the Partnership; and (c) the General Partner shall not be
required to pay to the Partnership or to any Limited Partner any deficit in any
Limited Partner's Capital Account upon dissolution or otherwise. Other than as
expressly provided in this Agreement or under the Act, no Limited Partner shall
have the right to demand or
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receive property other than cash for its respective Interest in the Partnership.
Otherwise, the General Partner shall be liable to an unlimited extent for the
debts and other obligations of the Partnership.
ARTICLE VI.
MISCELLANEOUS
Section 6.01. Expenses.
(a) The General Partner shall pay for all costs and expenses of the
Partnership (including, but not limited to, costs and expenses relating to the
organization of, and offering of limited partner interests in, the Partnership
and costs and expenses relating to the operation of the Partnership, including
without limitation, costs and expenses of accountants, attorneys, statistical or
bookkeeping services and computing or accounting equipment, paying agent(s) or
registrar(s), transfer agent(s), duplicating, travel and telephone and costs and
expenses incurred in connection with the acquisition, financing, and disposition
of Partnership assets).
(b) The General Partner will pay any and all taxes (other than
United States withholding taxes) and all liabilities, costs and expenses with
respect to such taxes of the Partnership.
Section 6.02. Transfer of Interests.
(a) The General Partner may not assign its interest in the
Partnership in whole or in part under any circumstances except to a successor of
the General Partner. The admission of such successor as a general partner of the
Partnership shall be effective upon the filing of an amendment to the
Certificate with the Secretary of State of the State of Delaware which indicates
that such successor has been admitted as a general partner in the Partnership.
If the General Partner assigns its entire Interest to a successor of the General
Partner, the General Partner shall cease to be a general partner in the
Partnership simultaneously with the admission of the successor as a general
partner in the Partnership. Any such successor general partner in the
Partnership is hereby authorized to and shall continue the business of the
Partnership without dissolution.
(b) A Limited Partner may assign all or any part of his or its
partnership interest only with the consent of the General Partner. A Limited
Partner has no right to grant an assignee of his or its partnership interest the
right to become a substituted Limited Partner.
Section 6.03. Dissolution of the Partnership.
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(a) The Partnership shall not be dissolved by the admission of
additional or successor Partners in accordance with the terms of this Agreement.
The death, withdrawal, bankruptcy or dissolution of a Limited Partner, or the
occurrence of any other event which terminates the Interest of a Limited Partner
in the Partnership, shall not, in and of itself, cause the Partnership to be
dissolved and its affairs wound up. To the fullest extent permitted by
applicable law, upon the occurrence of such event, the General Partner may,
without any further act, vote or approval of any Partner, admit any Person to
the Partnership as an additional or substitute limited partner in the
Partnership, which admission shall be effective as of the date of the occurrence
of such event, and the business of the Partnership shall be continued without
dissolution.
(b) The Partnership shall be dissolved and its affairs shall be
wound up upon the occurrence of any of the following events:
(i) The expiration of the term of the Partnership, as provided in
Section 1.3 hereof,
(ii) Upon the bankruptcy of the General Partner;
(iii) Upon the assignment by the General Partner of its entire
interest in the Partnership when the assignee is not admitted to the
Partnership as a general partner of the Partnership in accordance with
Section 6.2(a), or the filing of a certificate of dissolution or its
equivalent, with respect to the General Partner, or the revocation of the
General Partner's charter and the expiration of 90 days after the date of
notice to the General Partner of revocation without a reinstatement of its
charter, or the occurrence of any other event which causes the General
Partner to cease to be a general partner of the Partnership under the Act,
unless the business of the Partnership is continued in accordance with the
Act (any remaining general partner of the Partnership is hereby authorized
to and shall continue the business of the Partnership without
dissolution);
(iv) upon the entry of a decree of judicial dissolution under
Section 17-802 of the Act; or
(v) upon the written consent of all Partners.
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Section 6.04. Distribution in Liquidation.
Upon the winding up of the Partnership, the assets of the
Partnership shall be distributed in the following order of priority:
(i) to creditors of the Partnership, to the extent otherwise
permitted by law, in satisfaction of the liabilities of the Partnership
(whether by payment or the making of reasonable provision for payment
thereof); and
(ii) to the Partners in proportion to such Partners' positive
Capital Account balances.
Section 6.05. Termination.
The Partnership shall terminate when all of the assets of the
Partnership shall have been disposed of and the assets shall have been
distributed in accordance with Section 6.4, and the General Partner has executed
and caused to be filed a certificate of cancellation of the Certificate.
Section 6.06. Rights of Limited Partners.
Each Limited Partner shall look solely to the assets of the
Partnership for all distributions with respect to the Partnership and such
Partner's capital contribution (including return thereof), and such Partner's
share of profits or losses thereof, and shall have no recourse therefor (upon
dissolution or otherwise) against the General Partner. No Partner shall have any
right to demand or receive property other than cash upon dissolution and
termination of the Partnership.
Section 6.07. Amendments.
Except as otherwise provided in this Agreement, this Agreement shall
be amended by, and only by, a written instrument executed by the General
Partner; provided, however, that no amendment shall be made, and any such
purported amendment shall be void and ineffective, to the extent the result
thereof would be to cause the Partnership to be treated as anything other than a
partnership for purposes of United States income taxation.
Section 6.08. Amendment of Certificate.
In the event this Agreement shall be amended pursuant to Section
6.7, the General Partner shall amend the Certificate to reflect such change if
it deems such amendment of the Certificate to be necessary or appropriate.
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Section 6.09. Notices.
All notices provided for in this Agreement shall be in writing, duly
signed by the party giving such notice, and shall be delivered, telecopied or
mailed by registered or certified mail, as follows:
(a) if given to the Partnership, in care of the General Partner at
the Partnership's mailing address set forth below:
Merrill Lynch Preferred Funding VI, L.P.
c/o Merrill Lynch & Co., Inc.
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281
Attention: Treasurer
(b) if given to the General Partner, at its mailing address set
forth below:
Merrill Lynch & Co., Inc.
World Financial Center, North Tower
250 Vesey Street
New York, New York 10281
Attention: Treasurer
(c) if given to any other Partner, at the address set forth on the
books and records of the Partnership.
All such notices shall be deemed to have been given, in the case of
the Partnership or the General Partners, when received in person, telecopied
with receipt confirmed, or mailed by first class mail, postage prepaid.
Section 6.10. Entire Agreement.
This Agreement constitutes the entire agreement among the parties.
It supersedes any prior agreement or understandings among them, and it may not
be modified or amended in any manner other than as set forth herein.
Section 6.11. Governing Law.
This Agreement and the rights of the parties hereunder shall be
governed by and interpreted in accordance with the laws of the State of Delaware
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and all rights and remedies shall be governed by such laws without regard to
principles of conflict of laws.
Section 6.12. Effect.
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 6.13. Pronouns and Number.
Wherever from the context it appears appropriate, each term stated
in either the singular or the plural shall include the singular and the plural,
and pronouns stated in either the masculine, feminine or neuter shall include
the masculine, feminine and neuter.
Section 6.14. Captions and Headings.
Captions and headings contained in this Agreement are inserted only
as a matter of convenience and in no way define, limit or extend the scope or
intent of this Agreement or any provision hereof.
Section 6.15. Partial Enforceability.
If any provision of this Agreement, or the application of such
provision to any Person or circumstance, shall be held invalid, the remainder of
this Agreement, or the application of such provision to persons or circumstances
other than those to which it is held invalid, shall not be affected thereby.
Section 6.16. Counterparts.
This Agreement may contain more than one counterpart of the
signature page and this Agreement may be executed by the affixing of the
signature of each of the Partners to one of such counterpart signature pages.
All of such counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first stated above.
General Partner:
Merrill Lynch & Co., Inc.,
a Delaware corporation
By: /s/ Theresa Lang
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Name: Theresa Lang
Title: Senior Vice President
and Treasurer
Initial Limited Partner:
Merrill Lynch Group, Inc.,
a Delaware corporation
By: /s/ Theresa Lang
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Name: Theresa Lang
Title: President
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Annex A
CERTIFICATE OF LIMITED PARTNERSHIP
OF
MERRILL LYNCH PREFERRED FUNDING VI, L.P.
This Certificate of Limited Partnership of Merrill Lynch Preferred
Funding VI, L.P. (the "Partnership"), dated as of December 3, 1998, is being
duly executed and filed by Merrill Lynch & Co., Inc., a Delaware corporation, as
general partner, to form a limited partnership under the Delaware Revised
Uniform Limited Partnership Act (6 Del. C.ss.17-101, et seq.).
(a) Name. The name of the limited partnership formed hereby is
Merrill Lynch Preferred Funding VI, L.P.
(b) Registered Office. The address of the registered office of the
Partnership in the State of Delaware is c/o The Corporation Trust Company,
Corporate Trust Center, 1209 Orange Street, Wilmington, Delaware 19801.
(c) Registered Agent. The name and address of the registered agent
for service of process on the Partnership in the State of Delaware is The
Corporation Trust Company, Corporate Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801.
(d) General Partner. The name and the business mailing address of
the sole general partner of the Partnership is: Merrill Lynch & Co., Inc., a
Delaware corporation, World Financial Center, North Tower, 250 Vesey Street, New
York, New York 10281.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of
Limited Partnership as of the date first written above.
Merrill Lynch & Co., Inc.,
as sole general partner
By: : /s/ Theresa Lang
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Name: Theresa Lang
Title: Senior Vice President
and Treasurer
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