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EXHIBIT 10.2
MILESTONE GLOBAL ADVISORS L.P.
AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Milestone
Global Advisors L.P. (the "Partnership") is made as of June 28, 1996, by the
sole general partner Milestone Fund Manager Inc., a Delaware corporation (the
"Managing General Partner"), and the sole limited partner Milestone Investment
Group Inc. (formerly Wharton Investment Group Inc.) (the "Initial Managing
General Partner" or the "Limited Partner"). The Managing General Partner and
the Limited Partner are referred to herein as the "Partners".
WHEREAS, the Partnership was originally formed between the Initial
Managing General Partner and VIK X, INC. (the "Initial Limited Partner"); and
WHEREAS, the Initial Limited Partner withdrew from the Partnership
pursuant to the terms and conditions contained in the original Limited
Partnership Agreement between the Initial Managing General Partner and the
Initial Limited Partner; and
WHEREAS, concurrently therewith, the Initial Managing Partner and The
Oxford Trust u/a/d 8/9/94 (the "Second Limited Partner") continued the
Partnership and entered into an Amended and Restated Limited Partnership
Agreement (the "Amended Agreement"); and
WHEREAS, the Second Limited Partner is concurrently herewith assigning its
interest in the Partnership to the Managing General Partner, as of the date
hereof, in accordance with the terms and conditions contained in the Amended
Agreement; and
WHEREAS, the Partners desire that the Initial Managing Partner became the
sole limited partner of the Partnership and that the Managing General Partner
became the sole general partner of the Partnership; and
WHEREAS, the Partners desire to continue the Partnership for the purposes
set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and intending to be legally bound hereby, the Partners agree
as follows:
ARTICLE I
ESTABLISHMENT OF THE PARTNERSHIP
1.1. Continuation of Partnership. The Partners do hereby agree to
continue as a limited partnership under the provisions of the Delaware Revised
Uniform Limited Partnership Act (the "Act") upon the terms and conditions set
forth in this Agreement. Promptly following the execution hereof, the Managing
General Partner, on behalf of the Partnership, shall execute or cause to be
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executed (i) a Certificate of Amendment to the Certificate of Limited
Partnership of the Partnership, and (ii) an Amended and Restated Certificate of
Limited Partnership in accordance with the Act and all such other certificates
and documents conforming thereto and shall do or cause to be done all such
filings, recordings, publications and other acts as may be necessary,
appropriate or advisable from time to time to comply with all requirements for
the formation, operation and/or continuance of a limited partnership under the
Act in all jurisdictions where the Partnership desires to conduct its business.
1.2. Name. The name of the Partnership shall be "Milestone Global
Advisors L.P." or such other name selected by the Managing General Partner and
as may be acceptable to the appropriate recording officials of the State of
Delaware.
1.3 Purpose and Powers of the Partnership. The purpose of the
Partnership shall be to serve, either alone or together with other persons or
entities, mutually agreeable to the Managing General Partner, as an investor,
sponsor, general partner or manager (or a combination of such) of investment
accounts, investment partnerships and off-shore funds. In furtherance of the
purpose of the Partnership, the Partnership shall have the power to do all
things necessary or desirable in the conduct of its business to the fullest
possible extent.
1.4 Principal Place of Business and Address. The principal place of
business of the Partnership shall be located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ #▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or at such other address or addresses as the Managing
General Partner may designate by notice to all other Partners. The Partnership
may maintain offices and other facilities from time to time at such locations,
within or without the State of New York, as may be deemed necessary or
advisable by the Managing General Partner.
1.5 Term. The existence of the Partnership commenced on the date that
the Partnership's Certificate of Limited Partnership was filed as provided in
Section 17-201 of the Act, and, unless sooner terminated or dissolved under the
provisions of this Agreement or by operation of law, the Partnership shall
terminate on December 31, 2030.
1.6 Power of Attorney. Each Limited Partner, by the execution of this
Agreement whether in counterpart, by separate instrument, by attorney-in-fact
or otherwise, does hereby irrevocably constitute and appoint the Managing
General Partner, with full power of substitution, his true and lawful attorney
and agent with full power and authority in his name, place and ▇▇▇▇▇, to file,
prosecute, defend, settle or compromise any and all actions at law or suits in
equity for or on behalf of the Partnership with respect to any claim, demand or
liability asserted or threatened by or against the Partnership, and to make,
execute, sign, acknowledge, swear, deliver, record and file on each Limited
Partner's behalf (a) all certificates and other instruments (including, without
limitation, all counterparts of this Agreement, all amendments hereto, the
Partnership's Certificate of Limited Partnership and all amendments thereto)
which the Managing General Partner deems appropriate to qualify or continue the
Partnership as a limited partnership in the jurisdictions in which the
Partnership may conduct business or which may be required to be filed by
the Partnership or any of the Partners
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under the laws of any jurisdiction; (b) all instruments which the Managing
General Partner deems appropriate to reflect a change in or modification of the
Partnership in accordance with the terms of this Agreement; (c) all conveyances
and other instruments which the Managing General Partner deems appropriate to
reflect the dissolution and termination of the Partnership; (d) certificates of
assumed name; (e) all certificates and instruments that may be appropriate to
reflect (i) a change in the name or the location of the principal place of
business of the Partnership, (ii) the disposition by a Partner of his interest
in the Partnership or any part thereof, (iii) the substitution or addition of a
person becoming a Partner of the Partnership, (iv) a distribution in reduction
of the capital contribution of a Partner, and (v) a change in the capital of
the Partnership; (f) such agreements, instruments and conveyances as the
Managing General Partner may deem, from time to time, necessary or desirable
for the promotion, conduct and development of the Partnership's business,
including agreements with affiliates or third-parties to provide investment
management services and brokerage services to the Partnership; (g) to obtain
such licenses, registrations and authorizations as may be required by the laws,
rules or regulations of any jurisdiction in which the Partnership conducts its
business; and (h) to take any and all other actions necessary or desirable to
effectuate the purposes of this Agreement.
The Power of Attorney granted herein shall be irrevocable and deemed to be
a power coupled with an interest and shall survive the death, insanity,
incompetency, legal incapacity, bankruptcy, insolvency or dissolution of any
Limited Partner or the assignment by a Limited Partner of his interest in the
Partnership. Each Limited Partner hereby agrees to be bound by any
representation made by the Managing General Partner and by any successor(s)
thereto acting in good faith pursuant to such Power of Attorney, and each
Limited Partner hereby waives any and all defenses which may be available to
contest, negate or disaffirm the actions of the Managing General Partner and
any successor(s) thereto taken in good faith and in accordance with the terms
of this Agreement and the Investment Agreement under such Power of Attorney.
In addition, each Limited Partner hereby agrees to execute and deliver to the
Managing General Partner within five days after receipt of the Managing General
Partner's request therefor, such other and further powers of attorney, and
other instruments which the Managing General Partner deems necessary to comply
with any laws, rules or regulations relating to the formation of the
Partnership or the conduct of business by the Partnership. In the event of any
conflict between this Agreement and any instruments filed by such attorney
pursuant to the Power of Attorney granted in this Section 1.6, this Agreement
shall control.
ARTICLE II
CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS
2.1. Initial Capital Contributions. Each Partner shall make an initial
contribution to the capital of the Partnership, simultaneously with the
execution of this Agreement, consisting of: (i) in the case of the Managing
General Partner, its interest in the Partnership as of the date hereof, which
interest was purchased as of the date hereof from the Second Limited Partner
and has the value equal
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to $25,500, and (ii) in the case of the Limited Partner, its interest in the
Partnership as of the date hereof, which interest has the value of $2,524,500.
2.2. Subsequent Capital Contributions. Any Partner with a deficit
balance in his capital account at the time of the liquidation of his interest
in the Partnership agrees to contribute to the capital of the Partnership an
amount of cash equal to the amount by which zero exceeds such Partner's capital
account at such time. Such amount shall be paid to the Partnership by the
later of the end of the taxable year in question or 90 days after the date of
the Partnership's liquidation and shall be available for payment to the
creditors of the Partnership or for distribution to Partners having positive
capital account balances.
2.3. Additional Contributions. No Limited Partner shall be required to
make any capital contributions in addition to those called for by Section 2.1
and Section 2.2. No General Partner will be required to contribute any capital
or lend any funds to the Partnership except as provided in Sections 2.1 and 2.2
hereof and except as may be required by applicable law or as may be necessary,
in the opinion of counsel to the Partnership, in order that the Partnership be
classified as a partnership for Federal income tax purposes.
2.4. Capital Accounts. A single capital account ("Capital Account")
shall be maintained for each Partner (regardless of whether such Partner is a
General Partner or a Limited Partner or both and regardless of the time or
manner in which such interests were acquired) in accordance with the capital
accounting rules of Section 704(b) of the Internal Revenue Code (the "Code").
Each Partner's opening Capital Account balance shall be the amount of such
Partner's initial Capital Contribution made pursuant to Section 2.1.
Thereafter, a Partner's Capital Account shall be credited with (a) such
Partner's subsequent cash capital contributions; (b) the agreed value of any
property subsequently contributed to the capital of the Partnership by such
Partner; (c) such Partner's share of partnership realized and unrealized
profits as provided in Article III; and (d) such other amounts as may be
required in order for the Capital Account to be considered to be determined and
maintained in accordance with the rules of Treas. Reg. Section
1.704-1(b)(2)(iv) (including Treas. Reg. Section 1.704-1(b)(2)(iv)(g)) or any
successor section of similar import. A Partner's Capital Account shall be
debited with (a) such Partner's share of partnership realized and unrealized
losses as provided in Article III, (b) distributions made to such Partner, and
(c) such other amounts as may be required for the Capital Account to be
considered to be determined and maintained in accordance with the rules of
Treas. Reg. Section 1.704-1(b)(2)(iv) (including Treas. Reg. Section
1.704-1(b)(2)(iv)(g)) or any successor section of similar import.
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ARTICLE III
PROFIT AND LOSS
3.1. Definitions of Net Profit and Net Loss. Profits and losses for a
particular Operations Period shall be computed in the same manner as the
Partnership reports its income for Federal income tax purposes, except that (i)
for purposes of gain, loss, depreciation and otherwise, property shall be
considered to have a book value equal to its fair market value as most recently
determined pursuant to Section 3.2(c); (ii) income of the Partnership exempt
from tax and expenses not deductible for tax purposes under the Code shall be
included in the computation; and (iii) unrealized gain or loss shall be taken
into account as provided in Section 3.2(c) hereof. The principles of Treas.
Reg. Section 1.704-1(b)(4)(i) shall be applied when necessary to prevent
duplication or omission of Capital Account adjustments, including without
limitation those arising from deemed sales under Section 3.2(c).
3.2. Allocation of Profits and Losses. (a) The Partnership's net profits
and losses for any Operations Period shall be allocated among the Partners as
follows: All net profits and losses with respect to the business and assets on
the books of the Partnership shall be allocated 1% to the Managing General
Partner and 99% to the Limited Partner.
(b) The Partnership's items of income, gain, loss and deduction shall be
allocated for Federal, state and local income tax purposes among the Partners
proportionately to the allocation of net profits and losses among the Partners,
except that each Partner's distributive share of depreciation, amortization,
and gain or loss, as computed for tax purposes, with respect to any property
shall be determined so as properly to reflect the varying interests of the
Partners in unrealized profit or loss for prior Operations Periods, and
otherwise to take into account the variation between the adjusted basis and the
book value of the property in the same manner as under Section 704(c) of the
Code and the Treasury Regulations thereunder.
(c) On each Adjustment Date, as defined in Section 3.4, the properties of
the Partnership (including in the case of a distribution, any property being
distributed) shall be considered to have been sold at fair market value, as
determined by the Managing General Partner using its reasonable business
judgment. The deemed gain or loss for the Operations Period in question upon
such deemed sale shall be allocated in accordance with Section 3.2. The amount
of any distribution in kind shall be considered to be the fair market value of
the property, as so determined.
(d) If any interest in the Partnership is transferred during an
Operations Period, the net profit or loss attributable to such Partnership Unit
for the Operations Period shall be allocated between the transferor and
transferee on a monthly basis based on actual monthly profit or loss. For this
purpose, (i) if a transfer occurs on or before the 15th day of the month the
transferee shall be treated as the owner of the interest for the entire month
and (ii) if a transfer occurs after the 15th day of the month the transferor
shall be treated as the owner of the interest for the entire month.
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3.3. Qualified Income Offset and Related Provisions. Notwithstanding any
other provision:
(a) Net losses for any Operations Period that would otherwise be allocated
to a Limited Partner and which would cause such Limited Partner to have an
Adjusted Capital Account Deficit shall instead be allocated to the Managing
General Partner.
(b) If any Limited Partner receives an adjustment, allocation, or
distribution described in Treas. Reg. Section 1.704-1(b)(2)(ii)(d)(4), (5), or
(6), items of Partnership gross income shall be specifically allocated to such
Limited Partner in an amount and manner sufficient to eliminate any Adjusted
Capital Account Deficit created by such adjustments, allocations, or
distributions as quickly as possible. The provisions of this Section 3.3(b) are
intended to constitute a "qualified income offset" within the meaning of Treas.
Reg. Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and implemented as
therein provided.
(c) After satisfaction of any allocations required by Section 3.3(b), net
profit for an Operations Period shall be allocated to the Managing General
Partner until the Managing General Partner has received allocations of net
profit equal in the aggregate to any net losses previously allocated to the
Managing General Partner pursuant to Section 3.3(a).
(d) An "Adjusted Capital Account Deficit" exists with respect to a Limited
Partner if the Limited Partner's Capital Account, determined for this purpose
by reducing the Capital Account by the items described in Treas. Reg. Section
1.704-1(b)(2)(ii) (d), (4), (5) and (6) and by increasing the Capital Account
by the amount described in Treas. Reg. Section 1.704-1(b)(2)(ii)(c) the
Partner is obligated to restore, is a negative amount.
3.4. Adjustment Date; Operations Period.
(a) The "Adjustment Dates" of the Partnership shall be the date of
dissolution of the Partnership and each other date on which there is a
distribution in kind of property of the Partnership, a contribution of money or
other property (other than a de minimis amount) to the Partnership by a new or
existing Partner as consideration of an interest in the Partnership, or a
distribution of money (other than a de minimis amount) by the Partnership to a
retiring or continuing Partner as consideration for an interest in the
Partnership.
(b) An "Operations Period" of the Partnership shall be the period
beginning on the date hereof, the first day of a fiscal year or an Adjustment
Date (as the case may be) and ending on the earlier of the next succeeding
Adjustment Date or the last day of a fiscal year.
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ARTICLE IV
DISTRIBUTIONS
4.1. Distributions Other Than Upon Winding-Up. Realized income of the
Partnership determined at the end of each Operations Period, may in the sole
discretion of the Managing General Partner be distributed to the Partners
proportionately to the allocation of net profits and losses among the Partners.
After application of Section 3.2(c), in the discretion of the Managing General
Partner, property of the Partnership may be distributed in kind.
4.2. Distributions Upon Winding-Up. Upon the dissolution and winding up
of the Partnership, the assets of the Partnership, after application of Section
3.2(c), shall be distributed in the following order of priority:
(a) To the payment of the debts and liabilities of the Partnership and
the expenses of winding-up, including the establishment of any reserves against
liabilities or obligations of the Partnership which the Managing General
Partner in its sole discretion shall deem appropriate, such reserves to be
charged against the Partners' Capital Accounts according to the allocation of
net profits and losses as set forth in Section 3.2, and, prior to payment of
such liabilities and obligations, shall be placed in the hands of an escrow
agent for such period of time and upon such terms as the Managing General
Partner shall determine; and then,
(b) To the payment of the Capital Accounts of the Partners; and then,
(c) To the Partners proportionately to their relative Capital Accounts.
ARTICLE V
WITHDRAWALS
A Partner may withdraw from the Partnership in whole or in part with the
consent of the remaining Partner or Partners. A Partner desiring to make a
withdrawal may file a written request with the other Partner or Partners
specifying the amount of a proposed withdrawal. Such request shall be filed at
least six months prior to the date requested for such withdrawal, which date
shall be the last day of a calendar month (the "Withdrawal Date"). If the
requested withdrawal is agreed to, the Partners shall also agree to make such
adjustments as shall be appropriate to the capital accounts of the Partners and
to the interest of the Partners in future profits and losses of the
Partnership. The distribution shall consist of cash or such other property as
the Partners may agree to, and shall be made as promptly as reasonable under
the circumstances.
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ARTICLE VI
DISSOLUTION AND WINDING-UP
6.1. Events Occasioning Dissolution. The Partnership shall dissolve and
terminate upon the occurrence of any of the following, whichever shall first
occur:
(a) December 31, 2030.
(b) The unanimous written consent of all the Partners to dissolve the
Partnership.
(c) The occurrence of an event of withdrawal by the General Partner under
Section 17-402 of the Act unless the Limited Partners (or, if relevant, all
remaining Partners) within 90 days after the withdrawal agree to continue the
Partnership and agree on the terms of admission of a new General Partner or
Partners, if necessary.
(d) The entry of a decree of judicial dissolution under Section 17-802 of
the Act.
6.2. Winding-Up. The Partnership shall be allowed one year from the date
of any event occasioning dissolution for the winding-up of its affairs and
shall be allowed such additional time as may be reasonable for the orderly sale
of the Partnership's properties.
ARTICLE VII
MANAGEMENT
7.1. Management by General Partner. The business affairs of the
Partnership shall be managed by the Managing General Partner. The Managing
General Partner shall have all necessary powers to carry out the purposes of
the Partnership.
7.2. Liabilities of the General Partner; Other Interests. The Managing
General Partner and its agents shall not be liable, responsible or accountable
in damages or otherwise to the Partnership or to any of the Partners for any
acts performed or omitted to be performed in good faith. The Managing General
Partner and the Limited Partner may engage in or possess interests in other
business ventures of every nature and description, whether or not competitive
with the business of the Partnership, independently or with others, and neither
the Partnership nor any of its Partners shall, by virtue of this Agreement,
have any rights in or to such other ventures or the income or profits derived
therefrom.
7.3. Limited Partner. No person in such person's capacity as a Limited
Partner shall take part in the management of the business or affairs of the
Partnership or have the right or authority to act for or bind the Partnership.
Notwithstanding any provision of this Agreement, no Limited Partner
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shall be liable for any of the losses, debts or liabilities of the Partnership
in excess of their respective Capital Contributions, except as otherwise
expressly provided by law.
ARTICLE VIII
SUBSTITUTION; ADDITIONAL PARTNERS
8.1. Substituted Limited Partner. The transferee of a Limited
Partnership interest shall not be admitted as a substituted Limited Partner
unless all of the following conditions have been met:
(a) The transfer is made pursuant to the written consent of the Managing
General Partner, which consent may be given or withheld in the sole discretion
of the Managing General Partner;
(b) There has been filed with the Managing General Partner a written
instrument, executed by the transferor, in form and substance satisfactory to
the Managing General Partner, transferring to the transferee all or part of the
transferor's Partnership interest;
(c) The transferee has approved and adopted all of the provisions of this
Agreement, as the same may have been amended, which approval and adoption may
be evidenced in such manner as is required by the Managing General Partner; and
(d) The transferee has paid or agreed to pay, as the Managing General
Partner may determine, all reasonable expenses relating to such admission.
8.2. Transfers of General Partnership Interest. The transferee of a
General Partnership interest may not be admitted as a substituted General
Partner without (a) the written consent of all Limited Partners which consent
shall be given or withheld in the sole discretion of a Limited Partner and (b)
satisfaction of the requirements of Section 8.1 in respect to a transfer of
Limited Partnership interest; provided, however, that if the requirements of
clause (b), but not clause (a), are met, such General Partnership interest
shall be deemed a Limited Partnership interest in the hands of the transferee,
and such transferee shall be admitted only as a substituted Limited Partner
with respect thereto, and shall not be deemed a General Partner for any purpose
but provided further, that no such transfer shall be permitted if the
Partnership would have no General Partner serving after the transfer.
8.3. Additional Partners. Additional Partnership interests may be issued
and sold by the Managing General Partner to any person, including but not
limited to a natural person, trust, corporation, partnership or other
association, for fair market value, as determined by the Managing General
Partner, using its reasonable business judgment, and under such terms as deemed
advisable by the Managing General Partner, including but not limited to terms
relating to the applicability of this Agreement to such additional Partnership
interests. Admission of any Partner shall not be a cause of dissolution.
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ARTICLE IX
ACCOUNTING
9.1. Books and Records. The Managing General Partner shall maintain the
general accounts of the Partnership. The books of the Partnership shall be
kept on a basis consistent with the provisions of this Agreement and shall be
open to the inspection and examination of all Partners, in person or by their
duly authorized representatives, at reasonable times. The books of the
Partnership shall be maintained using the accrual method of accounting.
9.2. Fiscal Year. The fiscal year of the Partnership shall be the
calendar year.
9.3. Reports. As soon as practicable after the close of each fiscal year
the Partnership shall furnish each Partner with a copy of the Partnership's
financial statements for such year and with a statement of such Partner's
Capital Account, as reflected on the books of the Partnership. Each Partner
shall also be supplied with all information with respect to the Partnership
required in connection with the preparation of such Partner's tax returns.
9.4. Federal Income Tax Elections. All elections required or permitted
to be made by the Partnership under the Internal Revenue Code shall be made by
the Managing General Partner in such manner as will, in their opinion, be most
advantageous to a majority in interest of the Limited Partner.
9.5. Tax Matters Partner. The Managing General Partner shall from time
to time designate a Tax Matters Partners pursuant to Section 6231(a)(7) of the
Code. The initial Tax Matters Partner shall be the Managing General Partner.
ARTICLE X
MISCELLANEOUS
10.1. Decisions by the Partners. Except as otherwise provided by law or
in this Agreement, whenever an action is to be taken by the Partnership or
whenever this Agreement refers to an action to be taken by the Managing General
Partner or the Limited Partner, such action shall be taken with the agreement
of a majority in interest of the Partners, the General Partners, or the Limited
Partners, as the case may be, then owning interests in the Partnership.
10.2. Amendments. This Agreement may be amended from time to time upon
the written consent of all of the Partners.
10.3. Notices. All notices to the Partnership or any Partner under this
Agreement shall be in writing, duly signed by the party giving such notice, and
transmitted postage prepaid by first class certified mail, return receipt
requested, to such Partner's address set forth on Schedule A of this
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Agreement, or to any such other address as may hereafter be designated by a
Partner upon giving notice thereof to the Partnership. All notices shall be
deemed given when dispatched.
10.4. No Delivery of Certificates. The Managing General Partner is not
required to deliver copies of any Certificate of Limited Partnership or
amendment or cancellations thereof to the Limited Partner.
10.5. Governing Law. This Agreement shall be construed in accordance
with and governed by the laws of the State of New York applicable in the case
of agreements made and to be performed entirely therein without regard to the
conflict of laws principles thereof.
* * * * *
IN WITNESS WHEREOF, the parties have hereto have executed this Agreement
as of the date first above written.
MANAGING GENERAL PARTNER
MILESTONE FUND MANAGER INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
LIMITED PARTNER
MILESTONE INVESTMENT GROUP INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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