Attached files
| file | filename |
|---|---|
| EX-31.2 - EXHIBIT 31.2 - TERRA NITROGEN CO L P /DE | tnh-12312017xex312.htm |
| EX-32.2 - EXHIBIT 32.2 - TERRA NITROGEN CO L P /DE | tnh-12312017xex322.htm |
| EX-32.1 - EXHIBIT 32.1 - TERRA NITROGEN CO L P /DE | tnh-12312017xex321.htm |
| EX-31.1 - EXHIBIT 31.1 - TERRA NITROGEN CO L P /DE | tnh-12312017xex311.htm |
| EX-21 - EXHIBIT 21 - TERRA NITROGEN CO L P /DE | tnh-12312017xex21.htm |
| EX-3.6 - EXHIBIT 3.6 - TERRA NITROGEN CO L P /DE | tnh-12312017xex36.htm |
| EX-3.1 - EXHIBIT 3.1 - TERRA NITROGEN CO L P /DE | tnh-12312017xex31.htm |
| 10-K - 10-K - TERRA NITROGEN CO L P /DE | tnh-12312017x10k.htm |
AGRICULTURAL MINERALS COMPANY, L.P.,
UNITED STATES TRUST COMPANY
OF NEW YORK
AND
THE HOLDERS FROM TIME TO TIME
OF UNITS AND DEPOSITARY RECEIPTS
DESCRIBED HEREIN
DEPOSIT AGREEMENT
Dated as of December 4, 1991
TERRA NITROGEN COMPANY, L.P. Exhibit 4.1
ARTICLE I
ARTICLE II
Section
Section
Section
Section
Section
Section
ARTICLE III
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
Section
ARTICLE IV
LX 1 03/2850F
TABLE OF CONTENTS
DEFINITIONS . ..................... I I • ' • I •• I •
DEPOSIT OF CERTIFICATES;
DEPOSIT ACCOUNT............................ 6
2.1
2.2
2.3
2.4
2.5
2.6
Deposit of Certificates............. 6
Documents Accompanying Deposit...... 6
Deposit Account..................... 6
Representations and Warranties
of Each Depositor................. 6
Representations and Warranties
of the Partnership................ 7
Representations and Warranties
of the Depositary................. 7
DEPOSITARY RECEIPTS ....................... . 8
3.1
3.2
3.3
3.4
3.5
3.6
3.7
3.8
3.9
3.10
3.11
3 .'12
Issuance............................ 8
Effect of Acceptance................ 8
Form; Denominations;
Execution......................... 8
Numbering and Registration.......... 10
Combinations and Split-ups.......... 10
Lost Depositary Receipts ............ 11
Limitations on Execution
and Delivery, Transfer,
Split-up, Combination,
Surrender and Exchange............ 11
Cancellation and Return of
Surrendered Depositary
Receipts. . . . . . . . . . . . . . . . . . . . . . . . . . 12
Supply of Depositary Receipts....... 12
Filing Proofs, Certificates
and Other Information............. 12
Refusal of Deposit,
Transfer, etc. . . . . . . . . . . . . . . . . . . . 12
Registrar; Transfer Agent........... 13
TRAN"SFER. 'I • I.' •••• I •••••• I •• I •• I • I •••• I • I I 13
Section 4.1
Section 4.2
Section 4.3
Transferability ..................... 13
Registration of Transfer............ 14
Effect of Execution
of Transfer Application
by Transferee. . . . . . . . . . . . . . . . . . . . . 14
Section 4.4
Section 4.5
ii
Status of Transferee
Prior to Admission
as Limited Partner ................ 15
Filing Notice of Transfers
with General Partner .............. 15
ARTICLE V CONVERSION .... I. I I I •• I ••••• I I •• I I I. I •• I. I.. 15
Section 5.1
Section 5.2
Section 5.3
Section 5.4
Conversion Privilege................ 15
Conversion Procedure ................ 15
Redemption or
Purchase of Units................. 16
Redemption or
Purchase Procedures ............... 16
ARTICLE VI WITHDRAWAL OF UNITS........................ 16
Section 6.1 Withdrawal of Units ................. 17
Section 6.2 Redeposit. . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE VII DUTIES OF DEPOSITARY....................... 18
Section 7.1
Section 7.2
Section 7.3
Section 7.4
section 7.5
Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Lists of Record Holders............. 19
Maintenance of Offices,
Agencies and Transfer Books....... 19
Other Obligations................... 20
Depositary's Agents ................. 20
ARTICLE VIII INFORMATION; DISTRIBUTIONS;
Section 8.1
Section 8.2
Section 8.3
VOTING RIGHTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Duty to Furnish
and Transmit Certain
Information. . . . . . . . . . . . . . . . . . . . . . . 20
Distributions....................... 20
Voting......... . . . . . . . . . . . . . . . . . . . . . 21
ARTICLE IX STATUS AND OTHER ACTIVITIES OF
DEPOSITARY; FORCE MAJEURE;
, IMMUNITIES; INDEMNIFICATION.............. 22
!
Section 9.1 Depositary Not a Trustee,
Issuer, etc. . . . . . . . . . . . . . . . . . . . . . 22
Section 9.2 Other Activities
of Depositary. . . . . . . . . . . . . . . . . . . . . 22
Section 9.3 Force Majeure ........... ~ ........... 22
Section 9.4
Section 9.5
Section 9.6
iii
Irrununi ties. . . . . . . . . . . . . . . . . . . . . . . . . . 23
Indemnification..................... 24
Tax Matters... . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE X CHARGES; FEES; EXPENSES.................... 26
Section
Section
Section
Section
Section
10.1
10.2
10.3
10.4
10.5
General. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Responsibility for
Expenses and Charges.............. 26
Governmental Charges................ 26
Special Charges..................... 26
Notice Requirement.................. 26
ARTICLE XI RESIGNATION; REMOVAL;
AMENDMENT; TERMINATION................... 27
Section 11.1
Section 11.2
Section 11.3
Resignation and Removal
of Depositary;
Appointment of
Successor Depositary.............. 27
Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 7
Termination. . . . . . . . . . . . . . . . . . . . . . . . . 28
ARTICLE XII GENERAL PROVISIONS......................... 29
Section 12.1
Section 12.2
Section 12.3
Section 12.4
Section 12.5
Section 12.6
Section 12.7
Section 12.8
Section 12.9
Section 12.10
Section 12.11
Section 12.12
EXHIBIT A
EXHIBIT B
Counterparts........................ 29
Exclusive Benefit
of Parties. . . . . . . . . . . . . . . . . . . . . . . . 29
Invalidity of Provisions............. 29
Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Holders to Be Parties............... 30
P 1 ur a 1 s .................. : .. : . . . . . . . 3 0
Applicable Law...................... 30
Captions ............................ 30
Partnership Assets.................. 31
Further Action...................... 31
Binding Effect...................... 31
Waiver.............................. 31
10312850F
DEPOSIT AGREEMENT
This Agreement, entered into as of the 4th day of
December, 1991, by and among Agricultural Minerals Company,
L.P., a Delaware limited partnership, United States Trust
Company of New York, as depositary, and Agricultural Minerals
Corporation, a Delaware corporation, as attorney-in-fact for
the holders from time to time of Units and Depositary
Receipts.
W I T N E S S E T H:
WHEREAS, the Partnership is a Delaware limited
partnership; and
WHEREAS, the Partnership has a class of limited
partner interests designated as Senior Preference Units (the
"Senior Preference Units");
WHEREAS, upon the Senior Conversion Date (as
described in the Partnership Agreement) the Senior Preference
Units become convertible for a certain period into limited
partner interests designated as Common Units (the "Common
Units");
WHEREAS, the holders of Senior Preference Units of
the Partnership desire to deposit their Units in a single
convenient depositary institution for the purposes set forth
in this Agreement and for the issuance under this Agreement
of Depositary Receipts evidencing deposited Senior Preference
Units;
WHEREAS, the holders of the Senior Preference Units
may from time to time wish to transfer their Senior
Preference Units, and such transfers would be facilitated by
having one institution act as depositary for such Senior
Preference Units;
WHEREAS, upon conversion of the Senior Preference
Units, the hold-ers of Common Units may desire to deposit
their Common Units for the issuance under this Agreement of
Depositary Receipts representing Common Units;
NOW, THEREFORE, in consideration of the premises and
the promises hereinafter contained, it is agreed by and among
the parties hereto as follows:
ARTICLE I
Definitions
Unless otherwise clearly indicated to the contrary,
the following definitions shall be applied for all purposes
to the terms used herein.
"Affiliate" shall mean, with respect to any Person,
any other Person that directly or indirectly controls, is
controlled by or is under common control with, the Person in
question. As used herein, "control" means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether
through ownership of voting securities, by contract or
otherwise.
"Agreement" shall mean this Deposit Agreement, as it
may be amended or restated from time to time.
"Assignee" shall mean a Person to whom one or more
Units have been transferred, by assignment of a Depositary
Receipt or otherwise in a manner permitted under this
Agreement or the Partnership Agreement, and who has executed
and delivered a Transfer Application, and who thereby owns a
partnership interest equivalent to that of a Limited Partner
but (a) limited to the rights and obligations appurtenant to
a Unit to share in the allocations and distributions,
including liquidating distributions, of the Partnership and
(b) otherwise subject to the limitations under the
Partnership Agreement on the rights of an assignee who has
not become a Substituted Limited Partner.
"Business Day" shall mean Monday through Friday of
each week, except that a legal holiday recognized as such by
the government of the United States or the State of New York
shall not be regarded as a Business Day.
"Certificate" shall mean a non-negotiable
certificate (except to the extent that it is transferable to
the Partnership or the General Partner) issued by the
Partnership representing a partnership interest as a Limited
Partner, including, without limitation, certificates
representing Units.
"Closing Price" of a Unit of any class for any day
means the last sale price on such day, regular way, or, in
2
case no such sale takes place on such day, the average of the
closing bid and asked prices on such day, regular way, in
either case as reported in the principal consolidated
transaction reporting system with respect to securities
listed or admitted to trading on the New York Stock Exchange
or, if the Units of a class are not listed or admitted to
trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with
respect to securities listed on the principal National
Securities Exchange on which Units of such class are listed
or admitted to trading or, if the Units of a class are not
listed or admitted to trading on any National Securities
Exchange, the last quoted price on such day or, if not so
quoted, the average of the high bid and low asked prices on
such day in the over-the-counter market, as reported by the
National Association of Securities Dealers, Inc. Automated
Quotation System or such other system then in use, or, if on
any such day the Units of a class are not quoted by any such
organization, the average of the closing bid and asked prices
on such day as furnished by a professional market maker
making a market in the Units of such class selected by the
Board of Directors of the General Partner, or, if on any such
day no market maker is making a market in the Units of such
class, the fair value of such Units on such day as determined
reasonably and in good faith by the Board of Directors of the
General Partner using any reasonable method of valuation.
"Corporate Office" shall mean the corporate office
of the Depositary or any other office it shall designate in
New York, or for the purposes so designated, which on the
date hereof is 770 Broadway, 7th Floor, Corporate Trust and
Agency Services, New York, New York 10003.
"Current Market Price" of a Unit as of any date
shall mean the average of the daily Closing Prices per Unit
for the twenty consecutive Trading Days immediately prior to,
but not including, such date.
;'Delaware Act" shall mean the Delaware Revised
Uniform Limited Partnership Act, as it may be amended and in
effect from time to time, and any successor to such statute.
"Departing Partner" means a former General Partner,
as of the effective date of any withdrawal or removal of such
former General Partner pursuant to the provisions of the
Partnership Agreement.
"Deposit Account" shall mean an account established
by the Depositary pursuant to Section 2.3 hereof.
3
!'51
"Depositary" shall mean United States Trust Company
of New York or any successor to it as depositary hereunder.
"Depositary Receipt" shall mean a receipt,
substantially in the form of Exhibit A or Exhibit B to this
Agreement, issued by the Depositary or a Depositary Agent in
accordance with this Agreement, evidencing ownership of one
or more Certificates.
"Depositary's Agent" shall mean an agent appointed
by the Depositary pursuant to Section 7.5 hereof.
"Depositor" shall mean a Limited Partner who
deposits a Certificate hereunder.
"General Partner" shall mean Agricultural Minerals
Corporation, a corporation having its principal office at
5100 East Skelly Drive, Suite 800, Tulsa, Oklahoma 74135, or
any successor to it under the Partnership Agreement.
"Limited Partner" shall mean a limited partner of
the Partnership as determined pursuant to the Partnership
Agreement.
"Partnership" shall mean Agricultural Minerals
Company, L.P., a Delaware limited partnership, having its
principal office at 5100 East Skelly Drive, Suite 800, Tulsa,
Oklahoma 74135.
"Partnership Agreement" shall mean the Agreement of
Limited Partnership of the Partnership, as it may be further
amended or restated from time to time. A copy of the
Partnership Agreement as in effect on the date hereof is
attached as Exhibit c hereto and made a part hereof for all
purposes.
"Person" shall mean an individual, corporation,
partnership, trust, unincorporated organization, association
or other entity.
"Record Date" shall mean the date established by the
General Partner for determining the identity of (a) the
Limited Partner~ and Assignees entitled to receive notice of
or vote at any meeting of Limited Partners or entitled to
vote by ballot or to exercise rights in respect of any other
lawful action of Limited Partners or (b) the Record Holders
entitled to receive any report or distribution.
"Record Holder" shall mean the Person in whose name
the Depositary Receipt evidencing a Unit is issued, and in
whose name such Unit is registered on the books of the
Depositary as of the close of business on the date of
determination.
"Registrar" shall mean the Depositary or any bank,
trust company or other Person appointed by the Partnership to
register the Certificates and Depositary Receipts pursuant to
Section 3.12 hereof.
"Registration Statement" shall mean the Registration
Statement on Form S-1 (Registration No. 33-43007) as it has
been or may be amended or supplemented from time to time,
filed by the Partnership with the Securities and Exchange
Commission under the Securities Act of 1933 to register the
offering and sale of Senior Preference Units.
"Subsidiary" means, with respect to any Person, any
corporation or other entity of which a majority of (i) the
voting power of the voting equity securities or (ii) the
outstanding equity interests is owned, directly or
indirectly, by such Person.
"Substituted Limited Partner" shall mean a Person
who is admitted as a Limited Partner pursuant to the
Partnership Agreement in place of and with all the rights of
a Limited Partner and who is shown as a Limited Partner on
the books and records of the Partnership.
"Trading Day" shall mean a day on which the
principal national securities exchange on which the Units of
any class are listed or admitted to trading is open for the
transaction of business or, if the Units of a class are not
listed or admitted to trading on any National Securities
Exchange, a day on which banking institutions in New York
City generally are open.
"Transfer Agent" shall mean the Depositary or any
bank, trust company or other Person appointed by the
Partnership to act as transfer agent for the Depositary
Receipts pursuant to Section 3.12 hereof.
' "Tran~fer Application" shall mean an application and
agreement for transfer of Units in the form set forth on the
back of the Depositary Receipts or in a form substantially to
the same effect in a separate instrument.
5
1'5'1
"Unit" shall mean (i) with respect to a partnership
interest as a Limited Partner not on deposit with the
Depositary pursuant hereto, a partnership interest as a
Limited Partner evidenced by a Certificate and (ii) with
respect to a partnership interest as a Limited Partner on
deposit with the Depositary pursuant hereto, a Certificate
evidenced by a Depositary Receipt, and shall include Common
Units and Senior Preference Units.
Capitalized terms used herein not otherwise defined
herein shall have the meaning ascribed to them in the
Partnership Agreement.
ARTICLE II
Deposit of Certificates; Deposit Account
Section 2.1 Deposit of Certificates. Subject to
the terms and conditions hereof, any Certificate may be
deposited in the Deposit Account established by the
Depositary pursuant to Section 2.3 hereof.
Section 2.2 Documents Accompanying Deposit. A
deposit of a Certificate shall be made by delivering such
Certificate to the Depositary at its Corporate Office. Any
Person presenting a Certificate for deposit shall file such
information and execute such certifications as the Depositary
may reasonably request.
Section 2.3 Deposit Account. The Depositary may
establish, at its Corporate Office, or at any other office or
agency the Depositary may designate for such-purpose, an
account or accounts, in a form and manner satisfactory to the
Partnership, in which deposited Units, evidenced by
Certificates, will be held.
Section 2.4 Representations and Warranties of Each
Depositor. Each Person depositing a Certificate hereunder
represents and warrants that (a) such person is, or is duly
authorized to act for, a Limited Partner and (b) such person
is the owner of such Certificate, or is duly authorized by
the owner thereof to make the deposit. The Depositary shall
not be liable to the General Partner, the Partnership, any
Limited Partner1 or any other Person for any expense or damage
reasonably incurred as a result of any breach by a Depositor
of these representations and warranties, which shall survive
the deposit of a Certificate and the issuance of a Depositary
Receipt.
6
l (.,. 0
Section 2.5 Representations and Warranties of the
Partnership. The Partnership hereby represents and warrants
that (a) it is a limited partnership duly formed and validly
existing under the laws of the State of Delaware, with full
power and authority to engage in its business and has the
necessary power and authority to execute, deliver and perform
this Agreement, (b) the Partnership will not at any time
deposit or cause to be deposited any Senior Preference Units
or Common Units unless such Senior Preference Units or Common
Units were issued pursuant to an effective registration
statement under the Securities Act of 1933, as amended, or in
a transaction not requiring registration under such Act and
(c) all of the Partnership Interests (as defined in the
Partnership Agreement) represented by the Units are, and
future issuances of such interests if issued in accordance
with the terms of the Partnership Agreement will be, duly
authorized, validly issued and, subject to the qualifications
set forth in the following sentence, fully paid and
non-assessable limited partner interests in the Partnership.
Assuming that the Limited Partners, as Limited Partners, do
not take part in the control of the business of the
Partnership (within the meaning of the Delaware Act) and that
they do no more than exercise their rights as Limited
Partners, the Limited Partners, other than any Departing
Partner, will have no liability in excess of their
obligations to make contributions to the Partnership, their
obligations to make other payments provided for in the
Partnership Agreement and their share of the Partnership's
assets and undistributed profits (subject to the obligation
of a Limited Partner to repay to the Partnership, to the
extent provided under the Delaware Act for a period of three
years after the date of distribution, any funds wrongfully
returned or distributed to it if the Limited Partner knew at
the time of such distribution that the distribution was in
violation of the Delaware Act). The Depositary shall not be
liable to any Person for any expense or damage incurred as a
result of any breach by the Partnership of these
representations and warranties, which shall survive the
deposit of Units and the issuance of Depositary Receipts.
Section 2.6 Representations and Warranties of the
Depositary. The Depositary hereby represents and warrants
that it is a New York corporation duly organized and validly
existing under the laws of the State of New York, with full
power and authority to engage in its business and has the
necessary power and authority to execute, deliver and perform
this Agreement. The Partnership, the General Partner, any
Limited Partner and any Assignee shall not be liable to any
7
i/o I
Person for any expense or damage incurred as a result of any
breach by the Depositary of such representation and warranty,
which shall survive the deposit of Units and the issuance of
Depositary Receipts.
ARTICLE III
Depositary Receipts
Section 3.1 Issuance. {a) Upon the deposit of a
Certificate, accompanied by such other documents, if any, as
required by the Depositary pursuant to Section 2.2 hereof,
the payment of any tax or other governmental charge in
respect of the deposit of a Certificate and the payment of
any fee of the Depositary provided for in Article X hereof,
the Depositary shall issue to the Depositor thereof one or
more Depositary Receipts and shall deliver such Depositary
Receipts to such Depositor or, subject to the requirements of
Section 3.l(b) hereof, to a Person designated by such
Depositor. One Depositary Receipt shall be issued in a
denomination evidencing all of such Depositor's Units unless
such Depositor elects to have depositary Receipts issued in
smaller denominations, subject to Section 3.3(b) hereof.
{b) If a Depositor wishes to have any of such
Depositor's Units registered in the name of, and the
Depositary Receipt therefor issued to, another Person
designated by such Depositor, the transaction shall be
treated as a transfer and shall be governed by the provisions
of Article IV hereof, and such Depositor and such Person
shall comply with such requirements as the Depositary or the
Partnership may impose, including the requirement that such
Person execute a Transfer Application.
Section 3.2 Effect of Acceptance. By acceptance of
a Depositary Receipt, a Depositor becomes a party to this
Agreement, assents to all of its provisions and becomes bound
by the terms and conditions of this Agreement and the
Depositary Receipt. The effect of acceptance of a Depositary
Receipt upon a Person designated by such Depositor pursuant
to Section 3.l(b) hereof shall be as provided in Section 4.3
hereof in respect of a transferee.
I
Sectidn 3.3 Form; Denominations; Execution.
(a) Definitive Depositary Receipts shall be engraved,
printed or lithographed on steel-engraved borders and shall
be substantially in the form of Exhibit A hereto with respect
to Senior Preference Units and Exhibit B hereto with respect
to Common Units, with appropriate insertions, modifications
and omissions as approved by the Partnership and the
Depositary, as conclusively evidenced by the issuance
thereof. Pending the preparation of definitive Depositary
Receipts, the Depositary, upon the order of the Partnership,
shall execute and deliver temporary Depositary Receipts that
are printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive
Depositary Receipts in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and
other variations as approved by the Partnership or the
Depositary, as evidenced by the issuance of such Depositary
Receipts. If temporary Depositary Receipts are issued, the
Partnership and the Depositary will cause definitive
Depositary Receipts to be prepared without unreasonable
delay. After the preparation of definitive Depositary
Receipts, the temporary Depositary Receipts shall be
exchangeable for definitive Depositary Receipts upon
surrender of the temporary Depositary Receipts at the
Corporate Office, without charge to the holder. Upon
surrender for cancellation of any one or more temporary
Depositary Receipts, the Depositary shall execute and deliver
in exchange therefor definitive Depositary Receipts
evidencing the same number of Depositary Shares as are
evidenced by the surrendered temporary Depositary Receipt or
Depositary Receipts. Such exchange shall be made at the
Partnership's expense and without any charge therefor. Until
so exchanged, the temporary Depositary Receipts shall in all
respects be entitled to the same benefits under this
Agreement and with respect to the Units as definitive
Depositary Receipts.
(b) The Partnership may authorize the exchange of
Depositary Receipts for other Depositary Receipts printed or
engraved in such other manner as it shall determine. The
Depositary Receipts shall conform to the requirements of any
securities exchange upon which the Units are or may be listed
or admitted to trading.
(c) Depositary Receipts may be issued in
denominations of any number of Units, except that no
Depositary Receipt shall repr~sent a fraction of a Unit.
(d) D·epositary Receipts may be endorsed with, or
have incorporated in the text thereof, such legends or
recitals not inconsistent with the provisions hereof as may
be required to comply with the provisions of this Agreement
or the Partnership Agreement, any applicable law or
regulation or the rules and regulations of any securities
exchange upon which the Units are or may be listed or
admitted to trading, to conform with any usage with respect
thereto, to indicate any special limitation or restriction to
which a Unit may be subject or for any other reason.
(e) Each Depositary Receipt shall be signed on
behalf of the Depositary by the manual signature of a duly
authorized employee of the Depositary, except that such
signature may be a facsimile if a Registrar who is a Person
other than the Depositary has been appointed pursuant to
Section 3.12 hereof and the Depositary Receipt is
countersigned by the manual signature of a duly authorized
employee of the Registrar. No Depositary Receipt shall be
entitled to any benefits hereunder or shall be valid or
obligatory for any purpose, unless it has been so signed or
countersigned. Depositary Receipts bearing the facsimile
signature of a Person who was at any time duly authorized to
sign Depositary Receipts on behalf of the Depositary shall
bind the Depositary, notwithstanding that such Person has
ceased to be an employee prior to the manual signature by the
Registrar and delivery of such Depositary Receipts or was not
an employee at the date of issuance of such Depositary
Receipts or the execution hereof.
Section 3.4 Numbering and Registration. (a) All
Depositary Receipts representing Senior Preference Units and
Common Units issued by the Depositary shall be numbered
consecutively within their respective classes. Each Record
Holder shall be registered on the books of the Depositary and
any Registrar or Transfer Agent in a manner permitting
identification by Persons authorized to have access to the
books of all Record Holders, their Depositary Receipts and
the Units evidenced thereby.
(b) The Depositary shall keep records to prepare
-accurately such lists as the Partnership may request from
time to time, including the list specified in Section 4.5
hereof, lists of the Record Holders of Common Units and
Senior Preference Units subject to any special limitations or
restrictions by, or stop transfer orders from, the
Partnership and a list of the Record Holders of Common Units
and Senior Preference Units listed or admitted to trading on
a securities exchange.
Section 3.5 Combinations and Sp~it-ups. Up?~
surrender of a Depositary Receipt tor spllt-up or como1nation
of the Units evidenced thereby at the Corporate Office, and
10
lb~
subject to the terms and conditions hereof, the Depositary
shall execute and deliver new Depositary Receipts bearing
previously unassigned numbers, in authorized denominations
evidencing the same aggregate number of Common Units or
Senior Preference Units, as the case may be, as evidenced by
the Depositary Receipt surrendered. Upon the request of the
Partnership, the Depositary shall execute and deliver new
Depositary Receipts bearing previously unassigned numbers in
authorized denominations and shall take such other
appropriate action as may be necessary if the outstanding
Common Units or Senior Preference Units shall be divided into
a greater number of Common Units or Senior Preference Units
or shall be cancelled to be combined into a smaller number of
Common Units or Senior Preference Units.
Section 3.6 Lost Depositary Receipts. If any
Depositary Receipt is mutilated, destroyed, lost or stolen,
the Depositary shall execute and, upon its request, the
Transfer Agent shall countersign and deliver, a Depositary
Receipt bearing a previously unassigned number of like form
and tenor in exchange and substitution for the mutilated,
destroyed, lost or stolen Depositary Receipt; provided that
the Depositary shall require the Record Holder of the Units
evidenced by such Depositary Receipt to (a) furnish to the
Depositary, in a form and manner satisfactory to the
Depositary, proof by affidavit of the mutilation,
destruction, loss or theft, and of such Record Holder's
ownership of the Units, and (b) furnish reasonable
indemnification (including the posting of an indemnity bond
for the benefit of the Depositary, the Partnership and the
General Partner) satisfactory to the Depositary and as may be
required by the General Partner pursuant to the Partnership
Agreement.
Section 3.7 Limitations on Execution and Delivery,
Transfer, Split-up, Combination, Surrender and Exchange. As
a condition precedent to the execution and delivery,
transfer, split-up, combination, surrender or exchange of any
Unit or Depositary Receipt, the Depositary, any Transfer
Agent or any Depositary's Agent may require (a) payment.of a
sum sufficient for reimbursement of any tax or other
governmental charge with respect thereto (including any such
tax or charge with respect to Certificates or Units being
deposited or withdrawn), (b) proof satisfactory to it as to
the identity and genuineness of any signature or as to the
due authorization of the action and (c) compliance with such
regulations consistent herewith as the Depositary may
reasonably establish.
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Section 3.8 Cancellation and Return of Surrendered
Depositary Receipts. All Depositary Receipts surrendered to
the Depositary or any Depositary's Agent shall be cancelled.
The Depositary shall return to the Partnership cancelled
Depositary Receipts and shall retain or return to the
Partnership other instruments, documents and records in
accordance with the reasonable policies and regulations of
the Depositary, any applicable law or regulation and the
rules and regulations of any securities exchange upon which
any class of Units is or may be listed or admitted to trading.
Section 3.9 Supply of Depositary Receipts. The
Partnership shall deliver to the Depositary from time to time
such quantities of Depositary Receipts as the Depositary may
request to enable the Depositary to perform its obligations
hereunder.
Section 3.10 Filing Proofs, Certificates and Other
Information. Any Person presenting a Certificate for deposit
or any Record Holder may be required from time to time to
execute such certificates and make such representations and
warranties as the Depositary may reasonably request in order
to carry out the purposes hereof. The Depositary may
withhold the delivery, transfer or exchange of any Depositary
Receipt or any distribution in respect thereof until such
certificates are executed or such representations and
warranties are made.
Section 3.11 Refusal of Deposit, Transfer, etc.
(a) The deposit of Certificates and the transfer of Units
Ula..r be refused, and the delivery, surrender or exchange of
Depositary Receipts may be suspended, during any period when
any register of Record Holders is closed, or if such action
is reasonably deemed necessary or advisable by.the
Depositary, any Depositary's Agent or the Partnership at any
time or from time to time because of any applicable law or
regulation, the rules and regulations of any securities
exchange upon which the Units are listed or admitted to
trading, any government or governmental body or commission or
any provision hereof. Without limitation of the foregoing,
the Depositary shall not knowingly issue or deliver
Depositary Receipts in connection with a registration of
transfer of Units, if to the knowledge of the Depositary (i)
such transfer i's required to be registered under the
Securities Act of 1933, as amended, or applicable securities
laws of any state and (ii) such registration requirements
have not been met . ·
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(b) The Partnership may give written instructions
to the Depositary to place an appropriate legend on any
Depositary Receipts pursuant to Section 3.3(c) hereof. The
Partnership may deliver a stop transfer order to the
Depositary in writing, specifying the name of the Record
Holder and the number of Common Units or Senior Preference
Units so restricted. The Depositary may rely upon such
legend or stop transfer order until instructed in writing by
the Partnership to remove such legend or to lift such stop
transfer order.
Section 3.12 Registrar; Transfer Agent. (a) The
Partnership may, and to the extent required by any applicable
law or regulations of any securities exchange on whica any
class of Units is listed or admitted to trading shall,
appoint one or more Registrars and one or more Transfer
Agents for the Units. The Depositary is hereby initially
appointed as Registrar and as Transfer Agent with respect to
the Senior Preference Units and the Common Units. A
Registrar or Transfer Agent may be removed and a substitute
appointed by the Partnership.
(b) The Depositary shall, at the request of the
Partnership, arrange for such facilities for the delivery,
transfer, surrender and exchange of the Units and Depositary
Receipts as may be required by any applicable law or
regulation or the rules and regulations of any securities
exchange upon which any class of Units is or may be listed or
admitted to trading.
ARTICLE IV
Transfer
Section 4.1 Transferability. Units are investment -
securities and are transferable in accordance with the laws
governing transfers of investment securities. In addition to
the other rights acquired upon transfer, the transferor shall
give a transferee who executes and delivers a Transfer
Application pursuant to Section 4.2 hereof the right to
request admission as a Limited Partner in respect of the
transferred Units. A Record Holder shall have the authority
to convey to a ,transferee who does not properly execute and
deliver a Transfer Application only (a) the right to assign
the Units to a purchaser or other transferee and (b) the
right to transfer the right to request admission as a Limited
Partner with respect to such Units. A transferee, by
acceptance of a Depositary Receipt, (x) becomes a party to
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this Agreement, thereby assenting to all of its provisions,
(y) agrees to be bound by the terms and conditions of this
Agreement and the Depositary Receipt and (z) agrees that such
transferor's duty to provide such transferee with any
requisite information necessary to obtain registration of the
transfer of the units shall exclude any duty by the
transferor to deliver an executed Transfer Application. It
is a condition of the Depositary Receipt, and every
successive holder thereof by acceptance of a Depositary
Receipt consents and agrees, that, until a Unit has been
transferred on the books of the Depositary or a Transfer
Agent pursuant to Section 4.2 hereof, the Depositary, any
Transfer Agent and the Partnership, notwithstanding any
notice to the contrary or any notation or other writing on
the Depositary Receipt, may treat the Record Holder at such
time as the absolute owner of the Unit for all purposes.
Section 4.2 Registration of Transfer. Subject to
the terms and conditions hereof, the Depositary shall
transfer Units on its books, from time to time, upon
surrender of the Depositary Receipt evidencing such Units by
the Record Holder, in person or by duly authorized attorney,
to the Depositary at the Corporate Office. Such Depositary
Receipt shall be properly endorsed or accompanied by an
executed instrument of transfer and accompanied by an
executed Transfer Application. The Depositary shall then
issue or cause to be issued a new Depositary Receipt
evidencing the same aggregate number of Common or Senior
Preference Units, as the case may be, as evidenced by the
Depositary Receipt surrendered and shall deliver the new
Depositary Receipt to or upon the order of the Person
entitled thereto. A Transfer Application may be executed on
behalf of a transferee by (i) an attorney, executor,
administrator, personal representative, trustee,
attorney-in-fact or guardian, and, if so executed, the person
executing said transfer application must give his or her full
title in such capacity, and proper evidence of authority to
act in such capacity or (ii) a member of the National
Association of Securities Dealers, Inc. who is registered
with a national securities exchange and who has obtained from
the transferee authority to act in such capacity. In the
case of (ii) above the agent will not be required to obtain
evidence of the, signatory's authority to execute the Transfer
Application on behalf of the transferee.
Section 4.3 Effect of Execution of Transfer
Application by Transferee. The Depositary shall not register
the transfer of Units unless the transferee has delivered an
executed Transfer Application as required by Section 4.2
hereof.
Section 4.4 Status of Transferee Prior to Admission
as Limited Partner. The Record Holder of a Unit, unless and
until admitted as a Limited Partner pursuant to the
Partnership Agreement, has the rights of an Assignee in
respect of such Unit as set forth in the Partnership
Agreement. The rights of such Record Holder as an Assignee
or a Limited Partner are subject to and shall be governed by
the Partnership Agreement.
Section 4.5 Filing Notice of Transfers with General
Partner. The Depositary shall prepare, as of the close of
business on the last Business Day of each month, a list or
other appropriate evidence, in such form as may be requested
by the General Partner, setting forth transfers of Depositary
Units registered by all Transfer Agents since the last
Business Day of the preceding month and the Business Day on
which each Limited Partner was admitted to the Partnership.
As promptly as practicable after the last Business Day of
each month, the Depositary shall submit such transfer record
to the General Partner.
ARTICLE V
Conversion
Section 5.1 Conversion Privilege. Subject to the
conditions and in accordance with the procedures set forth in
the Partnership Agreement, a Record Holder of a Senior
Preference Unit may convert any and all of such Record
Holder's Senior Preference Units into Common Units.
Section 5.2 Conversion Procedure. (a) To convert
a Senior Preference Unit, a Record Holder must (i) complete
and sign the conversion notice on the reverse side of the
Depositary Receipt representing such Senior Preference Unit
or Units;· ( i i) surrender the Depositary Receipt or
Certificate to the Depositary; (iii) furnish a Transfer
Application, if required; and (iv) pay any tax which is due
because the Common Units are issued in a name other than the
Record Holder's,; provided that all such actions must be
satisfied within 90 days after the mailing of notice of the
Senior Conversion Date.
(b) Effective prior to the close of business on the
Senior Conversion Date, the Record Holders of Senior
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Preference Units with respect to which the conversion notice
has been sent shall cease to be Record Holders with respect
to the converted Senior Preference Units and the Person or
Persons entitled to receive the Common Units upon conversion
shall be treated for all purposes as having become the Record
Holders of such Common Units as of the close of business on
the Senior Conversion Date, except for the purpose of
determining the Senior Preference Units entitled to receive
distributions with respect to periods ending on or prior to
the Senior Conversion Date.
Section 5.3 Redemption or Purchase of Units.
Subject to the conditions and in accordance with the terms
and procedures set forth in the Partnership Agreement, the
Partnership may (a) at any time on or after the Senior
Conversion Date redeem Senior Preference Units and (b) at any
time not more than 25% of the total outstanding Units of any
class are held by Persons other than the General Partner and
its Affiliates, may call or assign to the General Partner or
its Affiliates the right to acquire all of such Units.
Section 5.4 Redemption or Purchase Procedures. If,
on or before the redemption or purchase date specified by the
General Partner, as the case may be, all funds necessary for
such redemption or purchase have been deposited with the
Transfer Agent for the benefit of the holders of the Units to
be redeemed or purchased, so as to be and continue to be
available therefor, and the holders of such Units do not
surrender such Units for redemption or purchase, as the case
may be, all as provided for in the Partnership Agreement,
then upon and after the date of redemption or purchase, as
the case may be, such holders of Units to whom notice has
been given in accordance with the Partnership Agreement shall
cease to be Partners with respect to such Units and shall
have no interest in, or right in or claim against the
Partnership by virtue thereof, and shall have no voting
-~ights or other rights with respect to such Units except as
set forth in the following sentence. At any time from and
after the date of redemption or purchase, as the case may be,
such holders of outstanding Units subject to redemption or
purchase as provided in the Partnership Agreement may
surrender their Depositary Receipts or Certificates
evidencing such Units to the Transfer Agent in exchange for
payment of the iredemption or purchase price, as the case may
be, therefor without interest thereon, as provided in the
Partnership Agreement.
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ARTICLE VI
Withdrawal of Units
Section 6.1 Withdrawal of Units. (a) A Record
Holder may not withdraw Units from deposit unless such Record
Holder is a Limited Partner. Subject to terms and conditions
of this Agreement and the Partnership Agreement, at the
written request of a Limited Partner for withdrawal of Units
from deposit hereunder, and upon surrender of the Depositary
Receipt evidencing such Common Units or Senior Preference
Units to the Depositary at the Corporate Office, accompanied
by proof satisfactory to the Depositary and the Partnership
that the Person surrendering the Depositary Receipt is such
Record Holder or a Person duly authorized to act for such
Record Holder, the Depositary shall deliver a Certificate to
and in the name of such Record Holder or shall forward it to
such place as may be specified by such Record Holder, at the
risk and expense of such Record Holder. In satisfying its
obligation to deliver a Certificate, subject to Sections 3.7
hereof and 3.11 hereof, Article X hereof and the other terms
and conditions hereof, (i) if the Depositary has on deposit a
Certificate in the appropriate denomination in the name of
such Record Holder, the Depositary shall deliver such
Certificate to such Record Holder, and (ii) if the Depositary
has no such Certificate on deposit, the Depositary shall
surrender to the Partnership a Certificate representing an
adequate number of Common Units or Senior Preference Units
and shall request the Partnership to issue and deliver at the
Corporate Office, (A) a Certificate in the appropriate
denomination in the name of such Record Holder and (B) if
necessary, a Certificate in the appropriate denomination in
the name of the Depositary or the Depositary's Agent,
representing the difference between the denomination of the
Certificate surrendered to the Partnership and the
denomination of the Certificate issued in the name of such
Record Holder pursuant to clause (A). The Depositary shall
give notice of any withdrawal pursuant to this Section 6.1 to
the Partnership, any Registrar or Transfer Agent other than
the Depositary and any securities exchange upon which the
units are or may be listed or admitted to trading. Units
withdrawn from deposit shall not be transferable, except to
the Partnership or the General Partner, or by death or
operation of law.
i
(b) The Depositary may require that a Depositary
Receipt surrendered pursuant to Section 6.1(a) hereof be
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properly endorsed in blank or accompanied by a properly
executed instrument of transfer in blank, and that a Record
Holder execute and deliver to the Depositary a written order
directing the Depositary to cause the Certificate evidencing
the Units being withdrawn to be delivered to or upon the
written order of such Record Holder.
(c) If a Record Holder withdrawing Units pursuant
to Section 6.1(a} hereof desires to have any of such Units
registered in the name of, and the Certificate therefor
issued to, another Person designated by such Record Holder,
he and such other Person shall comply with such requirements
as the Partnership or the Depositary may impose, treating the
transaction as a request for a transfer subject to the
provisions of Article IV hereof.
Section 6.2 Redeposit. (a} Units withdrawn from
deposit may be redeposited pursuant to the terms hereof.
Redeposit of Certificates evidencing Units that have been
withdrawn shall be subject to receipt by the Depositary of 60
days' written notice and to such other conditions as may be
prescribed in the Partnership Agreement, except that the
Partnership and its Affiliates need not give any notice of
redeposit. The Depositary shall promptly notify the
Partnership of any redeposit of Certificates.
(b) Upon each delivery to the Depositary of a
Certificate to be redeposited, the Depositary shall, as soon
as transfer and recordation can be accomplished, present such
Certificate to the Partnership for transfer and recordation
of the Units being deposited in the name of the Depositary or
the Depositary's Agent.
(c) Upon receipt from the Partnership of a
Certificate in the name of a Depositor, the Depositary shall
issue and deliver at its Corporate Office, to or upon the
order of the Persons designated by such Depositor, a
Depositary Receipt registered in the name and representing
the number of Units requested, all at the risk and expense of
such Depositor.
ARTICLE VII
Duties of Depositary
Section 7.1 Reports. (a} The Depositary shall
make available for inspection during normal business hours by
Record Holders at its Corporate Office (and shall, upon the
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request of the Partnership and as required by applicable law
or the rules and regulations of the Securities and Exchange
Commission, furnish to the Securities and Exchange
Commission) any report, financial statement or communication
of or from the Partnership that is both received by the
Depositary in its capacity as depositary and made generally
available to Record Holders.
(b) The Depositary shall keep all required records
and, upon the request and at the expense of the Partnership,
shall promptly furnish to or file with the Securities and
Exchange Commission all materials or reports required by
applicable law or the rules and regulations of the Securities
and Exchange Commission to be filed or provided there~o under
the Securities Act of 1933, as amended, or the Securities
Exchange Act of 1934, as amended, by virtue of the
Depositary's agreement to act as depositary, Registrar and
T~ansfer Agent hereunder. A copy of any material or report
filed with the Securities and Exchange Commission shall be
mailed to the Partnership within two Business Days after its
filing. To the extent that such material or report requires
inform~tion from the Partnership, such information shall be
furnished to the Depositary by the Partnership in sufficient
quantity and sufficient time in advance of the date on which
the material or report is required to be filed to enable the
Depositary to comply with the filing requirement.
Section 7.2 Lists of Record Holders. As promptly
as practicable upon request by the Partnership, the
Depositary shall furnish to the Partnership a list of the
names and addresses of all Record Holders and the number of
Common or Senior Preference Units held by them as of the date
requested by the Partnership. A Record Holder shall have the
right with the consent of the General Partner and upon
notifying the Depositary of a proper purpose related to such -
Record Holder's interest in the Partnership, to have
furnished to such Record Holder at such Record Holder's
expense a list of the name and addresses of all Record
Holders.
Section 7.3 Maintenance of Offices, Agencies and
Transfer Books. (a) The Depositary shall maintain at its
Corporate Offic,e and at any other office the Depositary may
designate, or as may be required by any securities exchange
upon which any class of Units is or may be listed or admitted
to trading, facilities for the execution and delivery,
transfer, surrender and exchange of Common or Senior
Preference Units and Depositary Receipts.
19
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(b) The Depositary shall keep books at its
Corporate Office for the transfer of Units. Such books shall
be open at all reasonable times for inspection by Record
Holders with the consent of the General Partner; provided
that such inspection shall not be for the purpose of
communicating with Record Holders in the interest of a
business or object other than the business of the Partnership
or a matter related to this Agreement or the Units.
Section 7.4 Other Obligations. In performing the
services set forth herein, the Depositary shall comply with
any additional requirements that may be imposed by virtue of
its being deemed a transfer agent for Units or Depositary
Receipts by any securities exchange upon which any class of
Units are or may be listed or admitted to trading.
Section 7.5 Depositary's Agents. The Depositary
may from time to time, with the prior written consent of the
Partnership, appoint agents that may include the General
Partner, the Partnership and its Affiliates for the purposes
hereof and may vary or terminate the appointment of such
agents.
ARTICLE VIII
Information; Distributions; Voting Rights
Section ·8.1 Duty to Furnish and Transmit Certain
Information. The General Partner is required by the
Partnership Agreement to furnish to Record Holders and
Assignees certain reports and notices. If the Partnership
elects to have the Depositary deliver such reports or
notices, the General Partner shall furnish to the Depositary
a sufficient quantity of each such report or notice for
transmittal to the Record Holders. Upon receipt of any such
report or notice from the General Partner, the Depositary
shall mail such report or notice within five Business Days to
the Record Holders as of the close of business on the last
Business Day of the month preceding the month in which such
report or notice is received by the Depositary, or as of such
other date as the General Partner may specify.
Section 8.2 Distributions. (a) To facilitate cash
or other distr~butions made by the Partnership to Limited
Partners and Record Holders, the Depositary shall, at the
General Partner's request, furnish or cause to be furnished
to the General Partner as promptly as practicable a list of
the Record Holders and the number of Common or Senior
20
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Preference Units held by them, as recorded on the books of
the Depositary as of the close of business on the last
Business Day of the month preceding the month in which such
request is made, or as of such other date as the General
Partner may specify as the Record Date.
(b) The General Partner may request the Depositary
to act as paying agent with respect to a cash or other
distribution made by the Partnership. A request to serve in
such capacity shall be made by the General Partner by giving
notice of a proposed distribution, and a calculation of the
amount of the proposed distribution to be allocated in
respect of each Common or Senior Preference Unit, to the
Depositary at least ten Business Days before the distribution
is to be made. If cash is to be distributed, the General
Partner shall deposit with the Depositary, on or before the
date on which the distribution is to be made, funds
sufficient to pay the distribution. The Depositary shall
calculate the amount of the distribution to which each Record
Holder and Assignee is entitled based upon the number of
Common or Senior Preference Units registered in such Record
Holder's or Assignee's name. On the date set by the General
Partner for the distribution, the Depositary shall distribute
the funds received from the General Partner to the Record
Holders as of the Record Date selected by the General
Partner. Such distributions shall be made to such Record
Holders notwithstanding the length of time any such Record
Holder has held any Common or Senior Preference Unit.
(c) The Partnership may appoint a co-paying agent
for purposes of this Section 8.2, including, without
limitation, the General Partner or an Affiliate of the
Partnership.
(d) Any funds deposited with the Depositary by the
General Partner for the payment of distributions shall remain
subject .at all times to the instructions of the General
Partner. Any.funds so deposited which have remained
unclaimed· for a period of at least two years from the payment
date set by the General Partner for a distribution shall be
repaid to the Partnership by the Depositary. Such
repayments, if any, shall be made annually on the last day of
March of each year. Thereafter, any Person entitled to
payment of such distribution shall look only to the
Partnership for payment thereof.
Section 8.3 Voting. Upon receipt from the
Partnership of notice of any meeting at which Limited
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Partners are entitled to vote or of which they are entitled
to notice, the Depositary shall, at the request of the
Partnership, mail to each Limited Partner and Assignee who
directs the General Partner how to vote as of the Record Date
specified in the notice of the meeting a copy of such
notice. The Partnership shall furnish sufficient copies of
such notice to accomplish the foregoing. The right of a
Limited Partner or an Assignee to vote on any matter
concerning the Partnership shall be governed solely by the
terms of the Partnership Agreement and applicable law.
ARTICLE IX
Status and Other Activities of Depositary;
Force Majeure; Immunities; Indemnification
Section 9.1 Depositary Not a Trustee, Issuer, etc.
Neither the Depositary nor any Depositary's Agent shall be
deemed a trustee. Neither the Depositary nor any
Depositary's Agent shall have any legal or equitable title to
the Units deposited hereunder. The Depositary shall have no
right or power to sell, invest in, pledge, mortgage or borrow
against any Units deposited hereunder (except for a
possessory lien that may be imposed by the Depositary upon
books, records, documents or other properties for nonpayment
of fees or expenses hereunder). Neither the Depositary nor
any Depositary's Agent shall have any right by virtue hereof
to vote in meetings of, receive distributions from or have
any interest in, the Partnership. Neither the Depositary nor
any Depositary's Agent shall be liable for assessments by the
Partnership. It is the intention of the parties hereto that
neither the Depositary nor any Depositary's Agent shall be
deemed to be an "issuer" of securities under the federal
securities laws or applicable state securities laws, and the
parties hereto expressly agree hereby that the Depositary and
the Depositary's Agents are acting hereunder only in a
-ministerial capacity as depositary for the Units.
Section 9.2 Other Activities of Depositary. The
Depositary and any Depositary's Agent may own and deal in,
and may act as registrar or transfer agent for, any class of
securities of the General Partner, their Affiliates or the
Partnership, including the Corrmon or Senior Preference Units
and Depositary 'Receipts.
Section 9.3 Force Maieure. None of the Depositary,
any Depositary's Agent, the General Partner (or its
shareholders, directors or officers) or the Partnership shall
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incur any liability to any holder of a Common or Senior
Preference Unit or Depositary Receipt if, by reason of any
present or future law or regulation thereunder of the federal
government or any other governmental authority (or, in the
case of the Depositary or any Depositary's Agent, by reason
of any provision, present or future, of the Partnership
Agreement), or by reason of any act of God, war or other
circumstances beyond its control, the Depositary, any
Depositary's Agent, the General Partner (or its shareholders,
directors or officers) or the Partnership is prevented or
forbidden from doing or performing any act or thing required
by the terms hereof to be done or performed; nor shall the
Depositary, any Depositary's Agent, the General Partner (or
its shareholders, directors or officers) or the Partnership
incur any liability to any holder of a Unit or Depositary
Receipt by reason of any nonperformance or delay caused as
aforesaid in the performance of any act or thing required by
the terms hereof to be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided
for herein.
Section 9.4 Immunities. (a) None of the
Depositary, any Depositary's Agent, the General Partner (or
its shareholders, directors or officers) or the Partnership
assumes hereby any obligation or shall be subject to any
liability hereunder to any holder of a Unit or Depositary
Receipt other than a duty to use its best judgment and good
faith in the performance of such duties as are expressly set
forth herein.
(b) None of the Depositary, any Depositary's Agent,
the General Partner (or its shareholders, directors or
officers) or the Partnership shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding in respect of the Units or Depositary Receipts
that in its opinion may involve expense or liability, unless
indemnity, in addition to that provided pursuant to Section
9.5 hereof, satisfactory to it against such expense and
liability has been furnished.
(c) None of the Depositary, any Depositary's Agent,.
the General Partner (or its shareholders, directors or ·
officers) or the Partnership shall be liable for any action
or nonaction bj it in reasonable reliance upon the advice of
or information received from legal counsel, accountants, any
Depositor, any holder of a Unit or Depositary Receipt or any
other Person believed by it to be competent to give such
advice or information. The Depositary, any Depositary's
Agent, the General Partner (or its shareholders, directors or
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officers) and the Partnership may rely and shall be protected
in acting upon any written notice, request, direction or
other document believed by them to be genuine and to have
been signed or presented by the proper Person.
(d) None of the Depositary (or its officers,
directors, employees or agents) nor the Depositary's Agent
makes hereby any representation or shall have any
responsibility as to the validity of the Units, the
Partnership Agreement, any registration statement filed under
the Securities Act of 1933, as amended, related to such Units
or any instruments referred to herein or therein, or as to
the correctness of any statements made herein or therein;
provided that the Depositary shall be responsible for (i) its
representations in this Agreement and (ii) the validity of
any action taken or required to be taken by the Depositary in
connection herewith.
Section 9.5 Indemnification. (a) The Depositary
shall indemnify the General Partner (and its shareholders,
directors, officers, employees, partners and agents) and the
Partnership (and its Partners, Assignees and agents) against,
and hold each of them harmless from, all claims, liabilities,
losses, damages, judgments, fines, settlements, costs and
expenses (including all reasonable legal costs and expenses
relating thereto, including reasonable attorneys' fees)
arising out of acts performed or omitted in respect hereof by
the Depositary or any Depositary's Agent {other than an
Affiliate of the Partnership) due to the gross negligence,
bad faith or intentional misconduct of the Depositary or such
Depositary's agent.
{b) The Partnership shall indemnify the Depositary
and any Depositary's Agent (other than an Affiliate of the
Partnership) against, and hold each of them harmless from,
all claims, liabilities, losses, damages, judgments, fines,
settlements, costs and expenses {including all reasonable
legal costs and expenses relating thereto, including
reasonable attorneys' fees) arising out of {i) acts performed
or omitted in respect hereof by the Depositary or any such
Depositary's Agent, except for any such claim, liability,
loss, damage, judgment, fine, settlement, cost or expense due
to the negligence, gross negligence, bad faith or-intentional
misconduct of the Depositary or such Depositary's Agent or
(ii) the breach by the Partnership of its representations,
warranties and covenants set forth herein.
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{c) In case any proceeding shall be instituted
involving any person in respect of which indemnity may be
sought pursuant to any of Sections 9.5{a) and {b), such
person {hereinafter called the "indemnified party") shall
promptly notify the person against whom such indemnity may be
sought {hereinafter called the "indemnifying party") in
writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the
indemnified party and any other parties the indemnifying
party may designate in such proceeding and shall pay the fees
and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless {i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention
of such counsel or (ii) the named parties to any such
proceeding {including any impleaded parties) include both the
indemnifying party and the indemnified party and
representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests
between them. In the case of the retention of any such
separate counsel for the indemnified party, such counsel
shall be designated in writing by the indemnified party. The
indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment,
the indemnifying party agrees to indemnify the indemnified
party from and against any loss or liability by reason of
such settlement or judgment. No indemnifying party shall,
without the prior written consent of the indemnified party,
effect any settlement of any pending or threatened proceeding
in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all
liability on claims that are the subject matter of such
proceeding.
Section 9.6 Tax Matters. The Depositary shall have
no duty, obligation or liability with respect to {a) the
allocation of federal tax benefits related to federal tax
matters with respect to the Partnership, the General Partner,
the Limited Partners or the Assignees or (b) any income or
other tax reporting obligations imposed upon the Partnership,
the General Partners or any Limited Partner by the Internal
Revenue Service or any other federal, state or local taxing
authority.
25
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ARTICLE X
Charges; Fees; Expenses
Section 10.1 General. The charges, fees or
reimbursements for services provided hereunder shall be
determined by mutual agreement of the Depositary and the
Partnership.
Section 10.2 Responsibility for Expenses and
Charges. The Partnership shall pay all charges, fees and
reimbursements of the Depositary, other than those expressly
provided herein to be paid by other Persons.
Section 10.3 Governmental Charges. If any tax or
other governmental charge becomes payable with respect to a
Certificate, Unit or Depositary Receipt, or with respect to
the deposit, transfer or withdrawal of any of the foregoing,
such tax or governmental charge shall be payable by the
holder of such Certificate, Unit or Depositary Receipt or by
the transferee in the case of a transfer. Transfer or
withdrawal of Units may be refused until such payment is
made, and any cash or other distribution may be withheld and
applied to payment of such tax or other governmental charge,
with such holder or transferee to remain liable for any
deficiency.
Section 10.4 Special Charges. If at the request of
the holder or transferee of a Certificate, Unit or Depositary
Receipt, any delivery or communication from the Depositary is
made by telegram, telex or similar record telecommunication
mode, or if the Depositary incurs any charge or expense for
which it is not otherwise liable hereunder, such holder or
transferee shall be liable for such charge or expense.
Section 10.5 Notice Requirement. The Depositary
shall give notice of the imposition of any charge or fee,
other than the charges described in Sections 10.3 hereof and
10.4 hereof, upon holders or transferees of Certificates,
Units or Depositary Receipts, or any change therein, to any
securities exchange upon which any class of Units is or may
be listed or a~~itted to trading, or in the absence of such
listing by publication in a newspaper of general circulation
in the Borough ·of Manhattan, New York, and shall also give
notice thereof 1in writing to all Record Holders. The
imposition of or a change in any such charge or fee shall not
become effective until 90 days after the date of such notice,
unless it becomes effective in the form of an amendment
pursuant to Section 11.2 hereof.
26
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ARTICLE XI
Resignation; Removal; Amendment; Termination
Section 11.1 Resignation and Removal of Depositary;
Appointment of Successor Depositary. (a) The Depositary may
at any time resign as depositary hereunder by written notice
delivered to the Partnership. Such resignation shall be
effective upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided.
(b) The Depositary may at any time be removed as
depositary hereunder by the Partnership by written notice
delivered to the Depositary. Such removal shall be effective
upon the appointment of a successor depositary and its
acceptance of such appointment as hereinafter provided.
(c) If the Depositary resigns or is removed, the
Partnership shall, within 30 days after the delivery of the
notice of resignation or removal, as the case may be, appoint
a successor depositary, which shall be a bank or trust
company having a combined capital and surplus of at least
$50,000,000. If within 30 days after the delivery of such
notice of resignation or removal, as the case may be, no
successor depositary has been appointed, the General Partner
shall act as the depositary until the Partnership appoints a
successor depositary. Any successor depositary shall execute
and deliver to its predecessor and the Partnership an
instrument in writing accepting its appointment, and
thereupon such successor depositary, without any further act
or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor. The
predecessor, upon payment of all sums due it and upon the
written request of the Partnership, shall execute and deliver
an instrument transferring to the successor depositary all of
its rights and powers hereunder, shall duly transfer all
Certificates on deposit to the successor depositary and shall
deliver to the successor depositary a list of all Record
Holders and all other records and materials. Any successor
depositary shall promptly mail notice of its appointment to
all Record Holders.
(d) Any corporation-into or with which the
Depositary may be merged or consolidated or to which the
Depositary shall transfer all or substantially all of its
shareholder services business shall be the successor of the
Depositary without the execution or filing of any document or
any further act.
Section 11.2 Amendment. (a) Any provision hereof,
including the form of Depositary Receipt and the Transfer
Application, may at any time and from time to time be amended
by agreement between the Partnership and the Depositary in
27
I&\
any respect deemed necessary or desirable by them and in a
manner consistent with the fiduciary standards set forth in
the Partnership Agreement. A Record Holder at the time any
such amendment hereof becomes effective shall be deemed; by
continuing to hold Units, to consent to the amendment and to
agree to be bound by this Agreement as amended thereby.
(b) The Depositary shall give notice of any
material amendment hereof to any securities exchange upon
which the Units are or may be listed or admitted to trading,
or in the absence of such listing by publication in a
newspaper of general circulation in the Borough of Manhattan,
New York, and shall also give notice thereof in writing to
all Record Holders and Assignees. In the discretion of the
Depositary, the text or substance of any amendment may be
incorporated into the Depositary Receipts issued after its
adoption.
(c) No amendment hereof shall impair the right of a
Limited Partner to withdraw any or all of his Units pursuant
to Section 6.1 hereof. Notwithstanding anything herein to
the contrary, no amendment hereto shall override or supersede
the terms and provisions of the Partnership Agreement.
Section 11.3 Termination. (a) Whenever directed
by the Partnership, the Depositary shall terminate this
Agreement by mailing notice of termination to the Record
Holders at least 30 days before the date fixed in such notice
for termination.
(b) Upon termination hereof, the Depositary shall
discontinue the transfer of Units, shall suspend the
distribution of reports, notices and disbursements to Record
Holders and shall not give any further notices (other than
notice of such termination) or perform any further acts
hereunder, except that the Depositary shall continue to
_deliver Certificates, together with any distributions
received with respect thereto, pursuant to Section 6.1. Upon
request of the Partnership, the Depositary shall deliver all
books, records, Certificates, Depositary Receipts and other
documents respecting the subject matter hereof to the
Partnership.
I
(c) Upon termination hereof, the Partnership and
the holders of Units and Depositary Receipts shall be
discharged from all obligations hereunder, except for the
obligations of the Partnership pursuant to Section 9.5 hereof
and Article X hereof.
28
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ARTICLE XII
General Provisions
Section 12.1 Counterparts. This Agreement may be
executed in counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same
instrument. Copies hereof shall be filed with the Depositary
and any Depositary's Agent and shall be open to inspection
during business hours at the Corporate Office by any Record
Holder.
Section 12.2 Exclusive Benefit of Parties. This
Agreement is for the exclusive benefit of the parties hereto
and their respective successors and assigns and shall not be
deemed to give any legal or equitable right, remedy or claim
to any other person.
Section 12.3 Invalidity of Provisions. If any
provision of this Agreement or the Depositary Receipts is or
becomes invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein or therein shall not be affected
thereby.
Section 12.4 Notices. (a) Any notice to be given
to the parties hereto shall be deemed to have been duly given
if personally delivered or sent by mail, or by telegram or
telex confirmed by letter, addressed to each of the parties
in the manner and at the address shown below, or at such
address as each of the parties has specified in a notice
given in accordance with this Section 12.4.
To the Partnership:
Agricultural Minerals Company, L.P.
5100 East Skelly Drive, Suite 800
Tulsa, Oklahoma 74135
Attn: John A. Molenaar
To the Depositary:
United States Trust Company of New York
7;70 Broadway, 7th Floor
New York, New York 10003
Attn: Corporate Trust and Agency Services
To the General Partner:
Agricultural Minerals Corporation
5100 East Skelly Drive, Suite 800
Tulsa, Oklahoma 74135
Attn: John A. Molenaar
(b) Any notice to be given to any Record Holder
shall be deemed to have been duly given if personally
delivered or sent by mail, or by telegram or telex confirmed
by letter, addressed to such Record Holder at such Record
Holder's address as it appears on the books of the
Depositary, or, if he has filed with the Depositary a written
request that notices intended for such Record Holder be
mailed to some other address, at the address designated in
such request.
(c) Delivery of a notice sent by mail or by
telegraph or telex shall be deemed to be effected at the time
when a duly addressed letter containing the same (or a
confirmation thereof in the case of a telegram or telex) is
deposited, postage prepaid, in a post office letter box. The
Depositary and the Partnership may, however, act upon any
telegram or telex received by them from any of the parties
hereto.
Section 12.5 Holders to Be Parties. The holders
from time to time of Units and Depositary Receipts shall be
parties hereto and shall be bound by all of the terms and
conditions of this Agreement and the Depositary Receipts by
acceptance thereof.
Section 12.6 Plurals. Whenever the context may
require, the singular form of nouns, pronouns and·verbs shall
include the plural and vice versa.
Section 12.7 Applicable Law. This Agreement and
the rights, duties, obligations and immunities of the
Depositary hereunder or in respect of the Depositary Receipts
shall be governed by and construed in accordance with the
laws of the State of New York.
-Section 12.8 Captions. The headings of articles
and sections in' this Agreement and in the forms of Depositary
Receipt set forth as Exhibit A and Exhibit B hereto have been
inserted for convenience only and shall not be regarded as a
part of this Agreement or the Depositary Receipt or to have
any bearing upon the meaning or interpretation of any
provision contained in this Agreement or the Depositary
Receipt.
30
I P; . ..}
Section 12.9 Partnership Assets. Liability for the
obligations of the Partnership hereunder shall be without
recourse to the assets of the General Partner (or its
shareholders, directors or officers) other than its
partnership interest in the Partnership, whether or not
distributed.
Section 12.10 Further Action. The parties shall
execute and deliver all documents, provide all information
and take or refrain from taking all action as may be
necessary or advisable to achieve the purposes hereof.
Section 12.11 Binding Effect. Subject to the
provisions hereof, each and all of the covenants, terms,
provisions and agreements herein contained shall be binding
upon and shall inure to the benefit of the successors and
assigns of the parties hereto.
Section 12.12 Waiver. No failure by any party to
insist upon the strict performance of any covenant, duty,
agreement or condition hereof or to exercise any right or
remedy consequent upon a breach thereof shall constitute a
waiver of any such breach or any other covenant, duty,
agreement or condition.
IN WITNESS WHEREOF, the Partnership, the Depositary
and the General Partner, as attorney-in-fact of the holders
from time to time of Units and Depositary Receipts, have duly
executed this Agreement as of the day and year first above
set forth.
AGRICULTURAL MINERALS COMPANY, L.P.
By: Agricultural Minerals
Co~~ion, General Partner
By: ~i
Name: John A. Molenaar
Title: Senior Vice President
UNITED STATES TRUST COMPANY
OF NEW YORK
By: 1 . ' . ( . iYf_ r.,-'-- '---::-' C--/~ (,., .1 'L.
Name:,_'C·/'--T·f-.-· ~-:-~/! .'--:._,
Tit 1 e : .- .: .-__ ~_ __: .-. --"' ~ . ·... 1 ~ •
Exhibit A
to Deposit Agreement
TRANSFER OF FULL RIGHTS OF OWNERSHIP OF DEPOSITARY
UNITS EVIDENCED BY THIS DEPOSITARY RECEIPT MAY BE MADE ONLY
TO PERSONS WHO PROPERLY EXECUTE A TRANSFER APPLICATION. SEE
PARAGRAPHS 3 AND 6 HEREOF AND THE TRANSFER APPLICATION ON THE
REVERSE SIDE.
DEPOSITARY RECEIPT
evidencing
SENIOR PREFERENCE UNITS
REPRESENTING LIMITED PARTNER INTERESTS
in
AGRICULTURAL MINERALS COMPANY, L.P.
{a limited partnership under the laws of Delaware)
This Depositary Receipt is Transferable in New York, New York
No. Senior Preference Units
1. United States Trust Company of New York as
Depositary hereby certifies that is the
registered owner of Depositary Units, consisting
of Senior Preference Units representing limited partner
interests in Agricultural Minerals Company, L.P., a Delaware
limited partnership ("Senior Preference Units"}, on deposit
with the Depositary pursuant to the Deposit Agreement {the
"Deposit Agreement") dated as of December 4, 1991, among the
Partnership, the Depositary and Agricultural Minerals
Corporation, as attorney-in-fact for the holders from time to
time of Senior Preference Units and Depositary Receipts.
2. Depositary Receipts, Deposit Agreement.
Depositary Receipts, of which this Depositary Receipt is one,
are issued upon the terms and conditions set forth in the
Deposit Agreement. The Deposit Agreement and the Partnership
Agreement under which the Partnership was formed and is
existing, copies of which are on file at the Depositary's
Corporate Office, set forth the rights of holders of Senior
Preference Units and Depositary Receipts, each of whom
becomes a party to the Deposit Agreement by acceptance of a
Depositary Receipt, and the rights and duties of the
Depositary in respect of the Senior Preference Units and all
other property and cash from time to time held pursuant to
the Deposit Agreement. The statements made on the face and
the reverse of this Depositary Receipt are summaries of
certain prov1s1ons of the Deposit Agreement and are subject
to the detailed provisions thereof, to which reference is
hereby made for all purposes.
3. Transfers, Split-ups, Combinations. The Senior
Preference Units evidenced by this Depositary Receipt are
transferable on the books of the Depositary or a Transfer
Agent upon surrender of this Depositary Receipt by the Record
Holder hereof, in person or by such Record Holder's duly
authorized attorney, to the Depositary at its Corporate
Office. This Depositary Receipt shall be properly endorsed
or accompanied by a properly executed instrument of transfer
and accompanied by a properly executed Transfer Application.
Upon such transfer the Depositary shall issue or cause to be
issued and shall deliver a new Depositary Receipt to or upon
the order of the Person entitled thereto, subject to the
provisions of the Deposit Agreement and the Partnership
Agreement. This Depositary Receipt may be split into other
Depositary Receipts, or combined with other Depositary
Receipts into one Depositary Receipt, in each case evidencing
the same aggregate number of Senior Preference Units as the
Depositary Receipt(s) surrendered.
4. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange. As a
condition precedent to the execution and delivery, transfer,
split-up, combination, surrender or exchange of this
Depositary Receipt or the Senior Preference Units evidenced
hereby, the Depositary, any Transfer Agent or any
Depositary's Agent may require (a) payment of a sum
sufficient for reimbursement of any tax or other governmental
charge with respect thereto (including any such tax or charge
with respect to Certificates or Senior Preference Units being
deposited or withdrawn), (b) proof satisfactory as to the
identity and genuineness of any signature or as to the due
authorization to execute the appropriate documents and (c)
compliance with such regulations as it may reasonably
establish pursuant to the Deposit Agreement. Any Depositor
or any Record Holder may be required to execute such
certificates, and to make such representations and
warranties, as the Depositary may request.
5. Refusal of Deposit, Transfer, etc. The deposit
of Certificates or the transfer of Senior Preference Units
may be refused, and the delivery, surrender or exchange of
this Depositary Receipt may be suspended, during any period
when any register of Record Holders is closed, or if such
2
1~1
action is reasonably deemed necessary or advisable by the
Depositary, any Depositary's Agent or the Partnership at any
time or from time to time because of any applicable law or
regulation, the rules and regulations of any securities
exchange upon which the Senior Preference Units are listed or
admitted to trading, any government or governmental body or
commission or any provision of the Deposit Agreement.
6. Effect of Acceptance and Transfer of Depositary
Receipts. A Record Holder shall have the authority to convey
to a transferee who does not properly execute and deliver a
Transfer Application only (a) the right to assign the Senior
Preference Units to a purchaser or other transferee and (b)
the right to transfer the right to request admission as a
Limited Partner in respect of such Senior Preference Units.
A transferee, by acceptance of this Depositary Receipt, (x)
becomes a party to the Deposit Agreement, thereby assenting
to all of its provisions, (y) agrees to be bound by the terms
and conditions of the Deposit Agreement and of this
Depositary Receipt and (z) agrees that his transferor's duty
to provide him with any requisite information necessary to
obtain registration of the transfer of the Senior Preference
Units shall exclude any duty by the transferor to deliver an
executed Transfer Application. A transferee who properly
executes a Transfer Application (i) requests admission to the
Partnership as a Limited Partner, (ii) agrees to comply with
and be bound by the terms and conditions of, and executes,
the Deposit Agreement and the Partnership Agreement, (iii)
represents that such transferee has authority to enter into
the Deposit Agreement and the Partnership Agreement, (iv)
grants a power of attorney to the General Partner and, if a
liquidator shall be appointed, the liquidator of the
Partnership and (v) makes the consents and waivers contained
in the Partnership Agreement and the Deposit Agreement.
1. Status of Record Holder. The Record Holder of a
Senior Preference Unit, unless and until admitted as a
Limited Partner pursuant to the Partnership Agreement, has
the rights of an Assignee in respect of such Senior
Preference Unit.
8. Requirements of Execution. This Depositary
Receipt shall not be entitled to any benefits under the
Deposit Agreement and shall not be valid or obligatory for
any purpose, unless it has been signed on behalf of the
Depositary by the manual signature of a duly authorized
employee of the Depositary, except that such signature may be
a facsimile if a Registrar who is a person other than the
Depositary has been appointed and this Depositary Receipt is
countersigned by the manual signature of a duly authorized
employee of the Registrar.
Dated: UNITED STATES TRUST COMPANY
OF NEW YORK
Depositary, Transfer Agent
and Registrar
By:
Authorized Signature
Further Conditions and Agreement Forming Part of
this Depositary Receipt Appear on the Reverse Side
REVERSE SIDE
Further Conditions and Agreements
Forming Part of this Depositary Receipt
9. Surrender of Depositary Receipts and Withdrawal
of Senior Preference Units. Upon surrender of this
Depositary Receipt to the Depositary at its Corporate Office
and subject to the terms and conditions of the Deposit
Agreement and the Partnership Agreement, a Record Holder of
this Depositary Receipt who is a Limited Partner is entitled
to delivery of a nontransferable Certificate evidencing the
Senior Preference Units evidenced hereby.
10. Governmental Charges. If any tax or other
governmental charge becomes payable with respect to this
Depositary Receipt or the Senior Preference Units evidenced
hereby, such tax or governmental charge shall be payable by
the holder of this Depositary Receipt or by the transferee
hereof in the case of a transfer. Transfer or withdrawal of
the Senior Preference Units evidenced hereby may be refused
until such payment is made, and any cash or other
distribution may be withheld and applied to payment of such
tax or other governmental charge, with the holder or
transferee hereof to remain liable for any deficiency.
11. Representations and Warranties of Depositor.
Each Person depositing a Certificate under the Deposit
Agreement shall be deemed thereby to represent and warrant
that (a) such Person is, or is duly authorized to act for, a
Limited Partner and (b) such Person is the owner of such
Certificates, or is duly authorized by the owner thereof to
make the deposit.
12. Amendment. Any provision of the Deposit
Agreement, including the form of Depositary Receipt and the
Transfer Application, may at any time and from time to time
be amended by agreement between the Partnership and the
Depositary in any respect deemed necessary or desirable by
them, subject to the fiduciary responsibility of the General
Partner as set forth in the Partnership Agreement. A Record
Holder at the time any amendment to the Deposit Agreement
becomes effective shall be deemed, by continuing to hold
Senior Preference Units, to consent to the amendment and to
agree to be bound by the Deposit Agreement as amended
thereby. Notwithstanding the foregoing, no arnen~"ent shall
impair the right of a Limited Partner described in
Paragraph 9. The Depositary will give written notice of any
material amendment to the Deposit Agreement to all Record
Holders and Assignees.
l &:! 0
13. Charges of Depositary. The Partnership shall
pay all charges, fees and reimbursements of the Depositary,
except for (a) taxes and other governmental charges and (b)
such telegram, telex, delivery and other charges as are
expressly provided in the Deposit Agreement to be paid by
other Persons.
14. Title to Depositary Receipts. The Senior
Preference Units evidenced hereby are transferable in
accordance with the laws governing transfers of investment
securities. It is a condition of this Depositary Receipt,
and every successive holder hereof by acceptance hereof
consents and agrees, that, until a Senior Preference Unit has
been transferred on the books of the Depositary or a Transfer
Agent pursuant to the Deposit Agreement, the Depositary, any
Transfer Agent and the Partnership, notwithstanding any
notice to the contrary or any notation or other writing on
the Depositary Receipt, may treat the Record Holder at such
time as the absolute owner of the Senior Preference Unit for
all purposes.
15. Distributions. Whenever the Depositary
receives from the Partnership any cash distributable to
Record Holders, the Depositary shall, subject to the
provisions of the Deposit Agreement, make such distribution
to the Record Holders on the Record Date based upon the
number of Senior Preference Units registered in such Record
Holder's name; provided that the amounts distributed may be
reduced by any amount required to be withheld by the
Partnership or the Depositary on account of taxes.
16. Reports. The Depositary shall make available
for inspection by Record Holders at its Corporate Office
during normal business hours any report, financial statement
or communication of or from the Partnership that is both
received by the Depositary in its capacity as depositary and
made generally available to Limited Partners or Record
Holders.
17. Transfer Books. The Depositary shall keep
books at its Corporate Office for the transfer of Senior
Preference Units. Such books shall be open at all reasonable
times for inspection by the Record Holders with the consent
of the General Partner; provided that such inspection shall
not be for the purpose of communicating with Record Holders
in the interest of a business or object other than the
business of the Partnership or a matter related to the
Deposit Agreement or the Senior Preference Units. With the
2
I"! \
consent of the General Partner, a Record Holder shall have
the right, upon notifying the Depositary of a proper purpose
related to such Record Holder's interest in the Partnership,
to have furnished to such Record Holder at such Record
Holder's expense a list of names and addresses of all Record
Holders.
18. Liability of Depositary, Depositary's Agents,
General Partner and Partnership. None of the Depositary, any
Depositary's Agent, the General Partner (or its shareholders,
directors or officers) or the Partnership shall incur any
liability to any holder of this Depositary Receipt if, by
reason of any present or future law or regulation thereunder
of the federal government or any other governmental authority
(or, in the case of the Depositary or any Depositary's Agent,
by reason of any provision, present or future, of the
Partnership Agreement), or by reason of any act of God, war
or other circumstance beyond its control, if the Depositary,
any Depositary's Agent, the General Partner (or its
shareholders, directors or officers) or the Partnership is
prevented or forbidden from doing or performing any act or
thing required by the terms of the Deposit Agreement to be
done or performed; nor shall the Depositary, any Depositary's
Agent, the General Partner (or its shareholders, directors or
officers) or the Partnership incur any liability to the
holder of this Depositary Receipt by reason of any
nonperformance or delay caused as aforesaid in the
performance of any act or thing required by the terms of the
Deposit Agreement to be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement.
19. Immunities of Depositary, Depositary's Agents,
General Partner and Partnership. None of the Depositary, any
Depositary's Agent, the General Partner (or its shareholders,
directors or officers) or the Partnership (a) assumes any
obligation or shall be subject to any liability under the
Deposit Agreement to any holder of this Depositary Receipt
other than a duty to use its best judgment and good faith in
the performance of such duties as are expressly set forth in
the Deposit Agreement, (b) shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding in respect of this Depositary Receipt that in its
opinion may involve expense or liability, unless indemnity
satisfactory to it against such expense or liability has been
furnished, or (c) shall be liable for any action or nonaction
by it in reasonable reliance upon the advice of or
information from legal counsel, accountants, any Depositor,
any holder of this Depositary Receipt or any other Person
believed by it to be competent to give such advice or
information. The Depositary, any Depositary's Agent, the
General Partner (and its shareholders, directors or officers)
and the Partnership may rely and shall be protected in acting
upon any written notice, request, direction or other document
believed by them to be genuine and to have been signed or
presented by the proper Person.
20. Indemnification. Subject to the provisions of
the Deposit Agreement, the Depositary shall indemnify the
General Partner (and its shareholders, directors, officers,
employees, partners and agents) and the Partnership (and its
Partners, Assignees and agents) against, and hold each of
them harmless from, all claims, liabilities, losses, damages,
judgments, fines, settlements, costs and expenses (including
all reasonable legal costs and expenses relating thereto,
including reasonable attorneys' fees) arising out of acts
performed or omitted in respect of the Deposit Agreement by
the Depositary or any Depositary's Agent (other than an
Affiliate of the Partnership) due to the gross negligence,
bad faith or intentional misconduct of the Depositary or such
Depositary's Agent. Subject to the provisions of the Deposit
Agreement, the Partnership shall indemnify the Depositary and
any Depositary's Agent (other than an Affiliate of the
Partnership) against, and hold each of them harmless from,
all claims, liabilities, losses, damages, judgments, fines,
settlements, costs and expenses (including all reasonable
legal costs and expenses relating thereto, including
reasonable attorneys' fees) arising out of (a) acts performed
or omitted in respect of the Deposit Agreement by the
Depositary or any such Depositary's Agent, except for any
such claim, liability, loss, damage, judgment, fine,
settlement, cost or expense due to the negligence, gross
negligence, bad faith or intentional misconduct of the
Depositary or such Depositary's Agent, or (b) the breach by
the Partnership of its representations, warranties and
covenants set forth in the Deposit Agreement.
21. Registration and Removal of Depositary. The
Depositary may at any time (a) resign as depositary under the
Deposit Agreement by written notice delivered to the
Partnership, effective upon the appointment of a successor
depositary and its acceptance of such appointment, or (b) be
removed as depositary under the Deposit Agreement by the
Partnership, effective upon the appointment of a successor
depositary and its acceptance of such appointment.
22. Termination of Deposit Agreement. Whenever
directed by the Partnership, the Depositary shall terminate
the Deposit Agreement by mailing notice of termination to the
Record Holders at least 30 days before the date fixed in such
notice for termination. The Depositary shall then
discontinue all functions and be discharged from all
obligations with respect to the Deposit Agreement, except as
specifically provided therein. Upon termination of the
Deposit Agreement, the Partnership shall be discharged from
all obligations thereunder, except for its obligations to the
Depositary with respect to indemnification, charges and
expenses.
23. Applicable Law. The Deposit Agreement, and the
rights, duties, obligations and immunities of the Depositary
thereunder or in respect of the Depositary Receipts, shall be
governed by and construed in accordance with the laws of the
State of New York.
24. Defined Terms. Any capitalized term not
defined herein shall have the meaning assigned it in the
Deposit Agreement.
The following abbreviations, when used in the
inscription on the face of this Depositary Receipt, shall be
construed as follows according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Custodian (Cust) (Minor) under
Uniform Gifts to Minors Act
Additional abbreviations may also be used, though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns, and tr;ansfers unto
Social Security or other
identifying number of Assignee
Print or type Name
and Address of Assignee
the within Depositary Receipt and all rights and interest
represented thereby, and irrevocably constitutes and appoints
~~--~~~~~ his attorney, to transfer the same on the
books of the Depositary, with full power of substitution in
the premises.
Dated: Signature:
Signature guaranteed:
Note: The signature to any endorsement hereon must
correspond with the name as written upon the face of
the Depositary Receipt, in every particular, without
alteration or enlargement or any change whatever.
If the endorsement is executed by an attorney,
executor, administrator, trustee or guardian, the
person executing the endorsement must give his full
title in such capacity, and proper evidence of
authority to act in such capacity, if not on file
with the Depositary, must be forwarded with this
Depositary Receipt. The signature must be
guaranteed by an authorized employee of a bank,
trust company or member of a national securities
exchange.
Exhibit 1
No transfer of the Senior Preference Units evidenced
by this Depositary Receipt will be registered on the books of
the Depositary or of the Partnership unless an Application
for Transfer of Units has been executed by a transferee
either (a) on the form set forth below or (b) on a separate
application that the Depositary or the Partnership will
furnish on request without charge. A transferor of the
Senior Preference Units evidenced by this Depositary Receipt
has no duty to a transferee to deliver an executed transfer
application in order for such transferee to obtain
registration of the transfer of such Senior Preference Units
evidenced by this Depositary Receipt.
APPLICATION FOR TRANSFER OF UNITS
The undersigned ("Assignee") hereby applies for
transfer to the name of the Assignee of the Senior Preference
Units evidenced by this Depositary Receipt.
The Assignee (a} agrees to comply with and be bound
by the terms and conditions of, and hereby executes, the
Deposit Agreement, (b) requests admission as a Substituted
Limited Partner and agrees to comply with and be bound by the
terms and conditions of, and hereby executes, the Agreement
of Limited Partnership of Agricultural Minerals Company, L.P.
(the "Partnership"), as amended or restated to the date
hereof (the "Partnership Agreement"), (c) represents and
warrants that the Assignee has all right, power and authority
and, if an individual, the capacity necessary to enter into
the Partnership Agreement and the Deposit Agreement, (d)
appoints the General Partner and, if a liquidator shall be
appointed, the liquidator of the Partnership, his attorney to
execute, swear to, acknowledge and file any document,
including the Partnership Agreement, any amendment to the
Partnership Agreement and the Certificate of Limited
__ Partnership of the Partnership, necessary or appropriate for
the Assignee's admission as a Substituted Limited Partner and
as a party to the Partnership Agreement and the Deposit
Agreement, (e) gives the powers of attorney provided for in
the Partnership Agreement and the Deposit Agreement and (f)
makes the consents and waivers and gives the approvals
contained in the Partnership Agreement and the Deposit
Agreement. Capitalized terms not defined herein have the
meaning assigned to such terms in the Partnership Agreement.
The Assignee has acquired an interest in the
Partnership, whose taxpayer identification number is
73-1389684. On behalf of the Partnership, Agricultural
Minerals Corporation has applied to the Internal Revenue
Service for a tax shelter registration number. The Internal
Revenue Service has issued the Partnership the following tax
shelter registration number If there is no number
in the blank in the preceding sentence, the number will be
furnished to the Assignee when it is received.
The Assignee must report this registration number to
the Internal Revenue Service if the Assignee claims any
deduction, loss, credit or other tax benefit or reports any
income by reason of the Assignee's investment in the
Partnership.
The Assignee must report the registration number (as
well as the name and taxpayer identification number of the
Partnership) on Form 8271.
FORM 8271 MUST BE ATTACHED TO THE RETURN ON WHICH
THE ASSIGNEE CLAIMS THE DEDUCTION, LOSS, CREDIT OR OTHER TAX
BENEFIT OR REPORTS ANY INCOME.
ISSUANCE OF A REGISTRATION NUMBER DOES NOT INDICATE
THAT THIS INVESTMENT OR THE CLAIMED TAX BENEFITS HAVE BEEN
REVIEWED, EXAMINED OR APPROVED BY THE INTERNAL REVENUE
SERVICE.
Dated:
Social Security or other
identifying number of Assignee
Purchase Price
(including commissions, if any)
Type of Entity (Check One):
Individual __ Partnership __ Corporation
Nationality (Check One):
Signature of Assignee
Print or Type Name
and Address of Assignee
Trust Other (specify): __
u.s. Citizen, Resident or Domestic Entity
Foreign Corporation, or __ Non-resident alien
2
!'11
If the u.s. Citizen, Resident or Domestic Entity box
is checked, the following certification must be completed.
Under Section 1445(e) of the Internal Revenue Code
of 1986, as amended (the "Code"), the Partnership must
withhold tax with respect to certain transfers of property if
a holder of an interest in the Partnership is a foreign
person. To inform the Partnership that no withholding is
required with respect to the undersigned interest-holder's
interest in it, the undersigned hereby certifies the
following (or, if applicable, certifies the following on
behalf of the interest-holder).
Complete Either A or B:
A. Individual Interest-Holder
1. I am not a non-resident alien for purposes of
u.s. income taxation.
2. My U.S. taxpayer identifying number (Social
Security Number) is
3. My home address is
B. Partnership, Corporate or Other Interest-Holder
1. is not a foreign
(Name of Interest-Holder)
corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined
in the Code and Treasury Regulations).
2. The interest-holder's U.S. employer
identification number is
3. The interest-holder's office address and place
of incorporation (if applicable) is
The interest-holder agrees to notify the_Partnership
within sixty ( 6.0) days of the date the interest-holder
becomes a foreign person.
The interest-holder understands that this
certification may be disclosed to the Internal Revenue
Service by the Partnership and that any false statement
contained herein could be punishable by fine, imprisonment or
both.
Under penalties of perjury, I declare that I have
examined this certification and to the best of my knowledge
and belief it is true, correct and complete and, if
applicable, I further declare that I have authority to sign
this document on behalf of
(Name of Interest-Holder)
Signature and Date
Title (if applicable)
Note: If the Assignee is a broker, dealer, bank, trust
company, clearing corporation, other nominee holder or
an agent of any of the foregoing, and is holding for
the account of any other Person, this application
should be completed by an officer thereof or, in the
case of a broker or dealer, by a registered
representative who is a member of a registered
national securities exchange or a member of the
National Association of Securities Dealers, Inc., or,
in the case of any other nominee holder, a Person
performing a similar function. If the Assignee is a
broker, dealer, bank, trust company, clearing
corporation, other nominee holder or an agent of any
of the foregoing, the above certification as to any
Person for whom the Assignee will hold the Senior
Preference Units shall be made to the best of the
Assignee's knowledge.
Note: This Transfer Application may be executed on behalf of
a transferee by an attorney, executor, administrator,
personal representative, trustee, attorney-in-fact or
guardian, and, if so executed, the person executing
this Transfer Application must give his or her full
title in such capacity, and proper evidence of
authority to act in such capacity, if not on file with
the Depositary, must be forwarded with this Receipt.
Exhibit B
to Deposit Agreement
TRANSFER OF FULL RIGHTS OF OWNERSHIP OF DEPOSITARY
UNITS EVIDENCED BY THIS DEPOSITARY RECEIPT MAY BE MADE ONLY
TO PERSONS WHO PROPERLY EXECUTE A TRANSFER APPLICATION. SEE
PARAGRAPHS 3 AND 6 HEREOF AND THE TRANSFER APPLICATION ON THE
REVERSE SIDE.
DEPOSITARY RECEIPT
evidencing
COMMON UNITS REPRESENTING
LIMITED PARTNER INTERESTS
in
AGRICULTURAL MINERALS COMPANY, L.P.
(a limited partnership under the laws of Delaware)
This Depositary Receipt is Transferable in New York, New York
No. Common Units
1. United States Trust Company as Depositary hereby
certifies that is the registered owner
of Depositary Units, which represent Common Units
consisting of limited partner interests in Agricultural
Minerals Company, L.P., a Delaware limited partnership
("Common Units"), on deposit with the Depositary pursuant to
the Deposit Agreement (the "Deposit Agreement") dated as of
December 4, 1991, among the Partnership, the Depositary and
Agricultural Minerals Corporation, as attorney-in-fact for
the holders from time to time of Common Units and Depositary
Receipts.
2. Depositary Receipts, Deposit Agreement.
Depositary Receipts, of which this Depositary Receipt is one,
are issued upon the terms and conditions set forth in the
Deposit Agreement. The Deposit Agreement and the Partnership
Agreement under which the Partnership was formed and is
existing, copies of which are on file at the Depositary's
Corporate Office, set forth the rights of holders of Common
Units and Depositary Receipts, each of whom becomes a party
to the Deposit Agreement by acceptance of a Depositary
Receipt, and the rights and duties of the Depositary in
respect of the Common Units and all other property and cash
from time to time held pursuant to the Deposit Agreement.
The statements made on the face and the reverse of this
Depositary Receipt are summaries of certain provisions of the
Deposit Agreement and are subject to the detailed prov~s~ons
thereof, to which reference is hereby made for all purposes.
3. Transfers, Split-ups, Combinations. The Common
Units evidenced by this Depositary Receipt are transferable
on the books of the Depositary or a Transfer Agent upon
surrender of this Depositary Receipt by the Record Holder
hereof, in person or by such Record Holder's duly authorized
attorney, to the Depositary at its Corporate Office. This
Depositary Receipt shall be properly endorsed or accompanied
by a properly executed instrument of transfer and accompanied
by a properly executed Transfer Application. Upon such
transfer the Depositary shall issue or cause to be issued and
shall deliver a new Depositary Receipt to or upon the order
of the Person entitled thereto, subject to the provisions of
the Deposit Agreement and the Partnership Agreement. This
Depositary Receipt may be split into other Depositary
Receipts, or combined with other Depositary Receipts into one
Depositary Receipt, in each case evidencing the same
aggregate number of Common Units as the Depositary Receipt(s)
surrendered.
4. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange. As a
condition precedent to the execution and delivery, transfer,
split-up, combination, surrender or exchange of this
Depositary Receipt or the Common Units evidenced hereby, the
Depositary, any Transfer Agent or any Depositary's Agent may
require (a) payment of a sum sufficient for reimbursement of
any tax or other governmental charge with respect thereto
(including any such tax or charge with respect to
Certificates or Common Units being deposited or withdrawn),
(b) proof satisfactory as to the identity and genuineness of
any signature or as to the due authorization to execute the
appropriate documents and (c) compliance with such
regulations as it may reasonably establish pursuant to the
Deposit Agree~ent. Any Depositor or any Record Holder may be
required to execute such certificates, and to make such
representations and warranties, as the Depositary may request.
5. Refusal of Deposit, Transfer, etc. The deposit
of Certificates. or the transfer of Common Units may be
refused, and the delivery, surrender or exchange of this
Depositary Receipt may be suspended, during any period when
any register of Record Holders is closed, or if such action
is reasonably deemed necessary or advisable by the
Depositary, any Depositary's Agent or the Partnership at any
2
time or from time to time because of any applicable law or
regulation, the rules and regulations of any securities
exchange upon which the Common Units are listed or admitted
to trading, any government or governmental body or commission
or any provision of the Deposit Agreement.
6. Effect of Acceptance and Transfer of Depositary
Receipts. A Record Holder shall have the authority to convey
to a transferee who does not properly execute and deliver a
Transfer Application only (a) the right to assign the Common
Units to a purchaser or other transferee and (b) the right to
transfer the right to request admission as a Limited Partner
in respect of such Common Units. A transferee, by acceptance
of this Depositary Receipt, (x) becomes a party to the
Deposit Agreement, thereby assenting to all of its
provisions, (y) agrees to be bound by the terms and
conditions of the Deposit Agreement and of this Depositary
Receipt and (z) agrees that his transferor's duty to provide
him with any requisite information necessary to obtain
registration of the transfer of the Common Units shall
exclude any duty by the transferor to deliver an executed
Transfer Application. A transferee who properly executes a
Transfer Application (i) requests admission to the
Partnership as a Limited Partner, (ii) agrees to comply with
and be bound by the terms and conditions of, and executes,
the Deposit Agreement and the Partnership Agreement, (iii)
represents that such transferee has authority to enter into
the Deposit Agreement and the Partnership Agreement, (iv)
grants a power of attorney to the General Partner and, if a
liquidator shall be appointed, the liquidator of the
Partnership and (v) makes the consents and waivers contained
in the Partnership Agreement and the Deposit Agreement.
7. Status of Record Holder. The Record Holder of a
Common Unit, unless and until admitted as a Limited Partner
pursuant to the Partnership Agreement, has the rights of an
Assignee in respect of such Common Unit.
8. Requirements of Execution. This Depositary
Receipt shall not be entitled to any benefits under the
Deposit Agreement and shall not be valid or obligatory for
any purpose, unless it has been signed on behalf of the
Depositary by the manual signature of a duly authorized
employee of the Depositary, except that such signature may be
a facsimile if a Registrar who is a person other than the
Depositary has been appointed and this Depositary Receipt is
countersigned by the manual signature of a duly authorized
employee of the Registrar.
Dated: UNITED STATES TRUST COMPANY
OF NEW YORK
Depositary, Transfer Agent
and Registrar
By:
Authorized Signature
Further Conditions and Agreement Forming Part of
this Depositary Receipt Appear on the Reverse Side
REVERSE SIDE
Further Conditions and Agreements
Forming Part of this Depositary Receipt
9. Surrender of Depositary Receipts and Withdrawal
of Common Units. Upon surrender of this Depositary Receipt
to the Depositary at its Corporate Office and subject to the
terms and conditions of the Deposit Agreement and the
Partnership Agreement, a Record Holder of this Depositary
Receipt who is a Limited Partner is entitled to delivery of a
nontransferable Certificate evidencing the Common Units
evidenced hereby.
10. Governmental Charges. If any tax or other
governmental charge becomes payable with respect to this
Depositary Receipt or the Common Units evidenced hereby, such
tax or governmental charge shall be payable by the holder of
this Depositary Receipt or by the transferee hereof in the
case of a transfer. Transfer or withdrawal of the Common
Units evidenced hereby may be refused until such payment is
made, and any cash or other distribution may be withheld and
applied to payment of such tax or other governmental charge,
with the holder or transferee hereof to remain liable for any
deficiency.
11. Representations and Warranties of Depositor.
Each Person depositing a Certificate under the Deposit
Agreement shall be deemed thereby to represent and warrant
that (a) such Person is, or is duly authorized to act for, a
Limited Partner and (b) such Person is the owner of such
Certificates, or is duly authorized by the owner thereof to
make the deposit. · ·
12. Amendment. Any provision of the Deposit
Agreement, including the form of Depositary Receipt and the
Transfer Application, may at any time and from time to time
be amended by agreement between the Partnership and the
Depositary in any respect deemed necessary or desirable by
them, subject to the fiduciary responsibility of the General
Partner as set forth in the Partnership Agreement. A Record
Holder at the time any amendment to the Deposit Agreement
becomes effective shall be deemed, by continuing to hold
Common Units, to consent to the amendment and to agree to be
bound by the Deposit Agreement as amended thereby.
Notwithstanding the foregoing, no amendment shall impair the
right of a Limited Partner described in Paragraph 9. The
Depositary will give written notice of any material amendment
to the Deposit Agreement to all Record Holders and Assignees.
13. Charges of Depositary. The Partnership shall
pay all charges, fees and reimbursements of the Depositary,
except for (a) taxes and other governmental charges and (b)
such telegram, telex, delivery and other charges as are
expressly provided in the Deposit Agreement to be paid by
other Persons.
14. Title to Depositary Receipts. The Common Units
evidenced hereby are transferable in accordance with the laws
governing transfers of investment securities. It is a
condition of this Depositary Receipt, and every successive
holder hereof by acceptance hereof consents and agrees, that,
until a Common Unit has been transferred on the books-of the
Depositary or a Transfer Agent pursuant to the Deposit
Agreement, the Depositary, any Transfer Agent and the
Partnership, notwithstanding any notice to the contrary or
any notation or other writing on the Depositary Receipt, may
treat the Record Holder at such time as the absolute owner of
the Common Unit for all purposes.
15. Distributions. Whenever the Depositary
receives from the Partnership any cash distributable to
Record Holders, the Depositary shall, subject to the
provisions of the Deposit Agreement, make such distribution
to the Record Holders on the Record Date based upon the
number of Common Units registered in such Record Holder's
name; provided that the amounts distributed may be reduced by
any amount required to be withheld by the Partnership or the
Depositary on account of taxes.
16. Reports. The Depositary shall make available
for inspection by Record Holders at its Corporate Office
during normal business hours any report, financial statement
or communication of or from the Partnership that is both
received by the Depositary in its capacity as depositary and
made generally available to Limited Partners or Record
Holders.
17. Transfer Books. The Depositary shall keep
books at its Corporate Office for the transfer of Common
Units. Such books shall be open at all reasonable times for
inspection by the Record Holders with the consent of the
General Partner; provided that such inspection shall not be
for the purpose of communicating with Record Holders in the
interest of a business or object other than the business of
the Partnership or a matter related to the Deposit Agreement
or the Common Units. With the consent of the General
Partner, a Record Holder shall have the right, upon notifying
the Depositary of a proper purpose related to such Record
Holder's interest in the Partnership, to have furnished to
such Record Holder at such Record Holder's expense a list of
names and addresses of all Record Holders.
18. Liability of Depositary, Depositary's Agents,
General Partner and Partnership. None of the Depositary, any
Depositary's Agent, the General Partner (or its shareholders,
directors or officers) or the Partnership shall incur any
liability to any holder of this Depositary Receipt if, by
reason of any present or future law or regulation thereunder
of the federal government or any other governmental authority
(or, in the case of the Depositary or any Depositary's Agent,
by reason of any provision, present or future, of the
Partnership Agreement), or by reason of any act of God, war
or other circumstance beyond its control, if the Depositary,
any Depositary's Agent, the General Partner (or its
shareholders, directors or officers) or the Partnership is
prevented or forbidden from doing or performing any act or
thing required by the terms of the Deposit Agreement to be
done or performed; nor shall the Depositary, any Depositary's
Agent, the General Partner (or its shareholders, directors or
officers) or the Partnership incur any liability to the
holder of this Depositary Receipt by reason of any
nonperformance or delay caused as aforesaid in the
performance of any act or thing required by the terms of the
Deposit Agreement to be done or performed, or by reason of
any exercise of, or failure to exercise, any discretion
provided for in the Deposit Agreement.
19. Immunities of Depositary, Depositary's Agents,
General Partner and Partnership. None of the Depositary, any
Depositary's Agent, the General Partner (or its shareholders,
directors or officers) or the Partnership (a) assumes any
obligation or shall be subject to any liability under the
Deposit Agreement to any holder of this Depositary Receipt
other than a duty to use its best judgment and good faith in
the performance of such duties as are expressly set forth in
the Deposit Agreement, (b) shall be under any obligation to
appear in, prosecute or defend any action, suit or other
proceeding in respect of this Depositary Receipt that in its
opinion may involve expense or liability, unless indemnity
satisfactory td it against such expense and liability has
been furnished, or (c) shall be liable for any action or
nonaction by it in reasonable reliance upon the advice of or
information from legal counsel, accountants, any Depositor,
any holder of this Depositary Receipt or any other Person
3
'Z,..ob
believed by it to be competent to give such advice or
information. The Depositary, any Depositary's Agent, the
General Partner (and its shareholders, directors or officers)
and the Partnership may rely and shall be protected in acting
upon any written notice, request, direction or other document
believed by them to be genuine and to have been signed or
presented by the proper Person.
20. Indemnification. Subject to the prov1s1ons of
the Deposit Agreement, the Depositary shall indemnify the
General Partner (and its shareholders, directors, officers,
employees, partners and agents) and the Partnership (and its
Partners, Assignees and agents) against, and hold each of
them harmless from, all claims, liabilities, losses, damages,
judgments, fines, settlements, costs and expenses (including
all reasonable legal costs and expenses relating thereto,
including reasonable attorneys' fees) arising out of acts
performed or omitted in respect of the Deposit Agreement by
the Depositary or any Depositary's Agent (other than an
Affiliate of the Partnership) due to the gross negligence,
bad faith or intentional misconduct of the Depositary or such
Depositary's Agent. Subject to the provisions of the Deposit
Agreement, the Partnership shall indemnify the Depositary and
any Depositary's Agent (other than an Affiliate of the
Partnership) against, and hold each of them harmless from,
all claims, liabilities, losses, damages, judgments, fines,
settlements, costs and expenses (including all reasonable
legal costs and expenses relating thereto, including
reasonable attorneys' fees) arising out of (a) acts performed
or omitted in respect of the Deposit Agreement by the
Depositary or any such Depositary's Agent, except for any
such claim, liability, loss, damage, judgment, fine,
settlement, cost or expense due to the negligence, gross
negligence, bad faith or intentional misconduct of the
Depositary or such Depositary's Agent, or (b) the breach by
the Partnership of its representations, warranties and
covenants set~forth in the Deposit Agreement.
21. Registration and Removal of Depositary. The
Depositary may at any time (a) resign as depositary under the
Deposit Agreement by written notice delivered to the
Partnership, ef,fective upon the appointment of a successor
depositary and iits acceptance of such appointment, or (b) be
removed as depositary under the Deposit Agreement by the
Partnership, effective upon the appointment of a successor
depositary and its acceptance of such appointment.
4
~or
22. Termination of Deposit Agreement. Whenever
directed by the Partnership, the Depositary shall terminate
the Deposit Agreement by mailing notice of termination to the
Record Holders at least 30 days before the date fixed in such
notice for termination. The Depositary shall then
discontinue all functions and be discharged from all
obligations with respect to the Deposit Agreement, except as
specifically provided therein. Upon termination of the
Deposit Agreement, the Partnership shall be discharged from
all obligations thereunder, except for its obligations to the
Depositary with respect to indemnification, charges and
expenses.
23. Applicable Law. The Deposit Agreement, and the
rights, duties, obligations and immunities of the Depositary
thereunder or in respect of the Depositary Receipts, shall be
governed by and construed in accordance with the laws of the
State of New York.
24. Defined Terms. Any capitalized term not
defined herein shall have the meaning assigned it in the
Deposit Agreement.
The following abbreviations, when used in the
inscription on the face of this Depositary Receipt, shall be
construed as follows according to applicable laws or
regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT - Custodian (Cust) (Minor) under
Uniform Gifts to Minors Act
Additional abbreviations may also be used, though not in the
above list.
FOR VALUE RECEIVED, the undersigned hereby sells,
assigns and trahsfers unto
Social Security or other
identifying number of Assignee
Print or type Name
and Address of Assignee
the within Depositary Receipt and all rights and interest
represented thereby, and irrevocably constitutes and appoints
his attorney, to transfer the same on the
books of the Depositary, with full power of substitution in
the premises.
Dated: Signature:
Signature guaranteed:
Note: The signature to any endorsement hereon must
correspond with the name as written upon the face of
the Depositary Receipt, in every particular, without
alteration or enlargement or any change whatever.
If the endorsement is executed by an attorney,
executor, administrator, trustee or guardian, the
person executing the endorsement must give his full
title in such capacity, and proper evidence of
authority to act in such capacity, if not on file
with the Depositary, must be forwarded with this
Depositary Receipt. The signature must be
guaranteed by an authorized employee of a bank,
trust company or member of a national securities
exchange.
Exhibit 1
No transfer of the Common Units evidenced by this
Depositary Receipt will be registered on the books of the
Depositary or of the Partnership unless an Application for
Transfer of Units has been executed by a transferee either
(a) on the form set forth below or (b) on a separate
application that the Depositary or the Partnership will
furnish on request without charge. A transferor of the
Common Units evidenced by this Depositary Receipt has no duty
to a transferee to deliver an executed transfer application
in order for such transferee to obtain registration of the
transfer of such Common Units evidenced by this Depositary
Receipt.
APPLICATION FOR TRANSFER OF UNITS
The undersigned ("Assignee") hereby applies for
transfer to the name of the Assignee of the Common Units
evidenced by this Depositary Receipt.
The Assignee (a) agrees to comply with and be bound
by the terms and conditions of, and hereby executes, the
Deposit Agreement, (b) requests admission as a Substituted
Limited Partner and agrees to comply with and be bound by the
terms and conditions of, and hereby executes, the Agreement
of Limited Partnership of Agricultural Minerals Company, L.P.
(the "Partnership"), as amended or restated to the date
hereof (the "Partnership Agreement"), (c) represents and
warrants that the Assignee has all right, power and authority
and, if an individual, the capacity necessary to enter into
the Partnership Agreement and the Deposit Agreement, (d)
appoints the General Partner and, if a liquidator shall be
appointed, the liquidator of the Partnership as his attorney
to execute, swear to, acknowledge and file any document,
including the Partnership Agreement, any amendment to the
Partnership Agreement and the Certificate of Limited
Partnership of the Partnership, necessary or appropriate for
the Assignee's admission as a Substituted Limited Partner and
as a party to the Partnership Agreement and the Deposit
Agreement, (e) gives the powers of attorney provided for in
the Partnership Agreement and the Deposit Agreement and (f)
makes the consents and waivers and gives the approvals
contained in the Partnership Agreement and the Deposit
Agreement. Capitalized terms not defined herein have the
meaning assign~ to such terms in the Partnership Agreement.
The Assignee has acquired an interest in the
Partnership, whose taxpayer identification number is
i3-l389684. On behalf of the Partnership, Agricultural
Minerals Corporation has applied to the Internal Revenue
Service for a tax shelter registration number. The Internal
Zto
Revenue Service has issued the Partnership the following tax
shelter registration number . If there is no number
in the blank in the preceding sentence, the number will be
furnished to the Assignee when it is received.
The Assignee must report this registration number to
the Internal Revenue Service if the Assignee claims any
deduction, loss, credit or other tax benefit or reports any
income by reason of the Assignee's investment in the
Partnership.
The Assignee must report the registration number (as
well as the name and taxpayer identification number of the
Partnership) on Form 8271.
FORM 8271 MUST BE ATTACHED TO THE RETURN ON WHICH
THE ASSIGNEE CLAIMS THE DEDUCTION, LOSS, CREDIT OR OTHER TAX
BENEFIT OR REPORTS ANY INCOME.
ISSUANCE OF A REGISTRATION NUMBER DOES NOT INDICATE
THAT THIS INVESTMENT OR THE CLAIMED TAX BENEFITS HAVE BEEN
REVIEWED, EXAMINED OR APPROVED BY THE INTERNAL REVENUE
SERVICE.
Dated:
Social Security or other
identifying number of Assignee
Purchase Price
(including commissions, if any)
Type of Entity (Check One):
Signature of Assignee
Print or Type Name
and Address of Assignee
Individual __ Partnership __ Corporation __ Trust Other (specify): __
Nationality (Check One):
I
u.s. Citizen, Resident or Domestic Entity
__ Foreign Corporation, or __ Non-resident alien
2
'2- I I
If the u.s. Citizen, Resident or Domestic Entity box
is checked, the following certification must be completed.
Under Section 1445(e) of the Internal Revenue Code
of 1986, as amended (the "Code"), the Partnership must
withhold tax with respect to certain transfers of property if
a holder of an interest in the Partnership is a foreign
person. To inform the Partnership that no withholding is
required with respect to the undersigned interest-holder's
interest in it, the undersigned hereby certifies the
following (or, if applicable, certifies the following on
behalf of the interest-holder).
Complete Either A or B:
A. Individual Interest-Holder
1. I am not a non-resident alien for purposes of
u.s. income taxation.
2. My U.S. taxpayer identifying number (Social
Security Number) is
3. My home address is
B. Partnership, Corporate or Other Interest-Holder
1. is not a foreign
(Name of Interest-Holder)
corporation, foreign partnership, foreign trust
or foreign estate (as those terms are defined
in the Code and Treasury Regulations).
2. The interest-holder's U.S. employer
identification number is
3. The interest-holder's office address and place
of incorporation (if applicable) is
The in:terest-holder agrees to notify the Partnership
within sixty (60) days of the date the interest-holder
becomes a foreign person.
The interest-holder understands that this
certification may be disclosed to the Internal Revenue
3
'2-I'Z..
Service by the Partnership and that any false statement
contained herein could be punishable by fine, imprisonment or
both.
Under penalties of perjury, I declare that I have
examined this certification and to the best of my knowledge
and belief it is true, correct and complete and, if
applicable, I further declare that I have authority to sign
this document on behalf of
(Name of Interest-Holder)
Signature and Date
Title (if applicable)
Note: If the Assignee is a broker, dealer, bank, trust
company, clearing corporation, other nominee holder or
an agent of any of the foregoing, and is holding for
the account of any other Person, this application
should be completed by an officer thereof or, in the
case of a broker or dealer, by a registered
representative who is a member of a registered
national securities exchange or a member of the
National Association of Securities Dealers, Inc., or,
in the case of any other nominee holder, a Person
performing a similar function. If the Assignee is a
broker, dealer, bank, trust company, clearing
corporation, other nominee holder or an agent of any
of the foregoing, the above certification as to any
Person for whom the Assignee will hold the Common
U~its shall be made to the best of the Assignee's
knowledge.
Note: This Transfer Application may be executed on behalf of
a transferee by an atturney, executor, administrator,
persona~ representative, trustee, attorney-in-fact or
guardian, and, if so executed, the person executing
this Transfer Application must give his or her full
title in such capacity, and proper evidence of
authority to act in such capacity, if not on file with
the Depositary, must be forwarded with this Receipt.