Exhibit D
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXXX INVESTMENT PARTNERSHIP II, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP of Xxxxxxx
Investment Partnership II, L.P. (the "Partnership"), dated as of August __,
1998, by and between Veteri Place Corporation, as the General Partner (the
"General Partner") and the persons and entities, referred to in schedule A on
file at the offices of the Partnership, who have executed, either directly or
indirectly by an attorney-in-fact, as limited partners (the "Limited Partners").
PREMISES:
A. The Partnership was organized in accordance with the New Jersey revised
Uniform Limited Partnership Act by the filing by the General Partner of a
Certificate of Limited Partnership with the office of the Secretary of State of
the State of New Jersey on August __ , 1998.
B. The General Partner, pursuant to the authority granted to him under
section 26 of the Agreement, desires to amend the Agreement and to restate the
same.
NOW THEREFORE, in consideration of the premises and the mutual covenants
hereinafter contained, effective as of August __, 1998, it is hereby agreed as
follows:
The following terms shall have the following meaning when used in this
Agreement:
(a) "Act" shall mean the New Jersey Revised Uniform Limited Partnership
Act, amended from time to time.
(b) "Affiliate" shall mean any person performing services on behalf of the
Partnership who (i) directly or indirectly controls, is controlled by, or is
under common control with a General Partner; (ii) is any company of which a
General Partner or its controlling shareholder is an officer, director, partner
or trustee; (iii) a member of the family of the controlling shareholder of the
General Partner; or (iv) an Individual Retirement account or similar trust for
the benefit of one or more General Partner or its affiliates.
(c) "Agreement" shall mean this agreement of Limited Partnership, as
originally executed and as amended, modified, supplemented or restated from time
to time.
(d) "Capital account" shall mean the account described in Section 8 of this
Agreement.
(e) "Certificate" shall mean the Partnership's certificate of Limited
Partnership as defined in section 2 of this Agreement.
(f) "Code" shall mean the Internal Revenue code of 1986, or successor
provision of law, and the regulations issued thereunder.
(g) "Fiscal Period" shall mean the period beginning on the day immediately
succeeding the last day of the immediately preceding fiscal Period and ending on
the earliest occurring of the following:
(i) The last day of the Fiscal Year;
(ii) The day immediately preceding the day on which a new Partner
is admitted to the Partnership;
(iii) the day immediately preceding the date on which a Partner
makes an additional capital contribution to the Partner's capital account;
(iv) The day on which a Partner withdraws, in whole or in part,
the amount of his or its Capital account;
(v) The date of dissolution of the Partnership in accordance with
Section 5 of this Agreement.
(h) "Fiscal "Quarter" shall mean a fiscal quarter of the Partnership.
(i) "Fiscal Year" shall mean the fiscal year of the Partnership, which
shall be the calendar year.
(j) "General Partner Percentage" shall mean a percentage established by the
General Partner for each General Partner on the Partnership's books as of the
first day of each Fiscal Period. The sum of the General Partner's Percentages
for each Fiscal Period shall equal one hundred percent (100%).
(k) "Net Profit" of the Partnership shall mean, with respect to any Fiscal
Period, the excess of the aggregate revenue, income and gains (realized and
unrealized) earned on an accrual basis during the fiscal Period by the
Partnership from all sources over the expenses and losses (realized and
unrealized) incurred on an accrual basis during the fiscal Period by the
Partnership.
(l) "Net Loss" of the Partnership shall mean, with respect to any fiscal
Period, the excess of all expenses and losses (realized and unrealized) incurred
on an accrual basis during the fiscal Period by the Partnership over the
aggregate revenue, income and gains (realized and unrealized) earned on the
accrual basis during the fisca period by the Partnership from all sources.
(m) "Partnership Percentage" shall mean a percentage established for each
partner on the Partnership'books as of the first day of each Fiscal Period. The
Partnership Percentage of a Partner for a Fiscal Period shall be determined by
dividing the amount of the Partner's capital account as of the beginning of the
Fiscal Period by the sum of the capital accounts of all of the Partners as of
the beginning of the fiscal Period. The sum of the Partnership Percentage for
each fiscal Period shall equal one hundred percent (100%).
2. Organization.
The General Partner has executed a Certificate of Limited Partnership
pursuant to the provisions of the Act (the "Certificate") and has caused the
certificate to be filed as required by the Act. The General Partner shall also
execute and record all amendments to the Certificate or additional certificates
as may be required by this Agreement or by law.
3. Name of Partnership.
The name of the Partnership shall be Xxxxxxx Investment Partnership II,
L.P. or such other name as the General Partner may from time to time designate.
4. Principal Office, Resident Agent, Registered Office.
The principal office of the Partnership is 000 Xxxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000 or any other place determined by the General Partner. The
Partnership's phone number is (000) 000-0000, Ext. 108. The name and address of
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the registered agent for service of process in the State of New Jersey is
Xxxxxxxx X. Xxxxxxx, 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000. The address of the
registered office of the Partnership in the State of New Jersey is c/o Xxxxxxxx
X. Xxxxxxx,100 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000.
5. Term of the Partnership.
(a) The term of the Partnership, having commenced on the date the
Certificate was filed shall continue until the first of the following events
occurs:
(i) December 31, 2014;
(ii) a written consent to dissolution of the Partnership by all
Partners;
(iii) upon the General Partner ceasing to be a general partner as
a result of doing or being subject to one or more of the following:
(A) withdrawing from the Partnership in accordance with
Section 21 of this Agreement;
(B) assigning all of its interest in the Partnership;
(C) making an assignment for the benefit of its creditors;
(D) filing a voluntary petition in bankruptcy;
(E) being adjudged bankrupt or insolvent or having entered
against it an order of relief in any bankruptcy or insolvency proceeding;
(F) filing a petition or answer seeking for itself any
reorganization, arrangement,composition, readjustment, liquidation, dissolution,
or similar relief under any statute, law, or regulation;
(G) filling an answer or other pleading admitting or failing
to contest the material allegations of a petition filed against it in any
proceeding seeking reorganization, arrangement,composition, readjustment,
liquidation, dissolution, or similar relief under any statute, law or
regulation;
(H) seeking, consenting to, or acquiescing in the
appointment of a trustee or receiver, or liquidator of all or any substantial
part of its properties;
(I) being the subject of any proceeding seeking
reorganization, arrangement,composition, readjustment, liquidation, dissolution,
or similar relief under any statute, law or regulation,which proceeding shall
have continued for one hundred and twenty (120) days after the commencement
thereof; or the appointment of a trustee, receiver, or liquidator for such
General Partner or all or any substantial part of its properties without its
consent or acquiescence, which appointment is not vacated or stayed for ninety
(90) days after the expiration of the stay during which period the appointment
is not vacated;
(J) the death of the General Partner; or
(K) the entry by a court of competent jurisdictio
adjudicating such General Partner incompetent to manage his person or his
property; or
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(iv) upon issuance of a non-appealable decree of dissolution of
the Partnership by a New Jersey Court of competent jurisdiction.
(b) In the event a General Partner does or becomes subject to any of the
provisions of subsection (a)(iii) of this Section 5, the Partnership shall be
dissolved and its affairs wound up as provided in Section 22 of this Agreement.
6. Purposes
The Partnership is organized for the following purposes:
(a) to invest and trade, on margin or otherwise, in "Securities," as that
term is defined in Section 2(1) of the Securities Act of 1933, as amended (the
"1933 Act");
(b) to sell Securities short and cover short sales;
(c) to lend funds or properties of the Partnership, either with or without
security; and
(d) to execute, deliver and perform all contracts and other undertakings,
and engage in all activities and transactions, that the General Partner believes
are necessary or advisable in carrying out the purposes specified all
subsections (a), (b), and (c) of this Section 6, including without limitation:
(i) to purchase, transfer or acquire in any manner and exercise
all rights, powers, privileges and other incidents of ownership or possession
with respect to the investments described in subsection (a) of this Section 6;
and
(ii) to register or qualify the Partnership under any applicable
Federal or state laws, or to obtain exemptions under those laws, if
registration, qualification, or exemption is deemed necessary by the General
Partner.
7. Contributions of the Partners; New Partners.
(a) Each Partner shall make a contribution to the Partnership's
capital ("Capital Contribution") in the amount set out opposite the Limited
Partner's name in Schedule A attached to this Agreement.
(b) Any Partner may elect, with the consent of the General Partner to
make an additional Capital Contribution, as of the first day of any fiscal
Quarter. The General Partner may, in its sole discretion, permit additional
Capital Contributions to be made more frequently than quarterly.
(c) No Partner shall be required to make any additional Capital
Contributions.
(d) Capital Contributions made by Limited Partners must be in cash.
(e) The General Partner shall have the right, but not the obligation,
to admit new Partners to the Partnership as of the first day of any Fiscal
quarter. The General Partner may, however, in its sole discretion, admit new
Partners more frequently than quarterly.
8. Capital Accounts.
A Capital account shall be established for each Partner. For the Fiscal
Period during which a Partner is admitted to the Partnership, his or its capital
account shall equal the amount of his or its initial Capital
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Contribution. For each subsequent Fiscal Period, the Partner's Capital account
will equal the sum of the amount of his or its Capital account as finally
adjusted for the immediately preceding fiscal Period and the amount of any
additional Capital Contribution made by the Partner as of the first day of the
current Fiscal Period.
9. Adjustments to Capital Accounts.
At the end of each Fiscal Period, the Capital Accounts of the Partners
shall be adjusted in the following manner:
Net Profits for each year (as defined below) shall be allocated as follows:
(a) First, to the extent of any net losses allocated to the Limited
Partners, ninety-nine (99%) percent of the Net Profits shall be allocated to the
Limited Partners, and one percent (1%) to the General Partner until the Limited
Partners have recouped any Net Losses previously allocated to them.
(b) Thereafter, any remaining Net Profit shall be allocated seventy-five
(75%) percent to the Limited Partners and twenty-five (25%) percent to the
General Partner (the "Incentive Allocation").
Net Losses for each calendar year shall be allocated as follows:
(a) First, to the extent that the General Partner's capital account is
positive, seventy-five (75%) percent of the Net Losses shall be allocated to the
Limited Partner and twenty-five (25%) percent to the General Partner.
(b) From and after the General Partner's capital account is zero, the Net
Losses shall be allocated ninety-nine (99%) percent to the Limited Partner and
one percent (1%) to the General Partner.
The portion of the Net Profit and Net Losses allocated to the Limited
Partner shall be allocated between the Limited Partners based on the proportion
that such Limited Partner's capital account bears to the capital account of all
limited partners.
Notwithstanding the preceding provisions of this Article 4:
(a) Except as provided in sub-section (e) below, no allocation of loss or
deduction shall be made to a Partner if such allocation would cause at the end
of any taxable year a deficit in such Partner's Adjusted Capital Account to
exceed his or its allocable share of Minimum Gain (as defined in Treasury
Regulation Section 1.704-1(b)(iv)(e); and any such loss or deduction not
allocated to a Partner by reason of this Section shall be allocated pro-rata to
each other Partner if and to the extent that such allocation shall not create a
deficit in such other Partner's Adjusted Capital Account in excess of his
allocable share of Minimum Gain; provided, however, that if such allocation
would create such deficit in all Partner' Adjusted Capital Accounts in excess of
their share of Minimum Gain, then such allocation shall be made in accordance
with the principles of Treasury Regulation Section 1.704-1(b).
(b) If, during any taxable year, there is a net decrease in Minimum Gain
then each Partner shall, before any other allocations are made for such year, be
allocated in a manner so as to satisfy the requirements of Treasury Regulation
Section 1.704-2(f), items of Partnership income and gain for such year (and, if
necessary, subsequent years) in an amount equal to each Partner's share of the
net decrease in Partnership Minimum Gain
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(within the meaning of Treasury Regulation Section 1.704-2(g)(2).
(c) If, during any taxable year, there is a net decrease in Partnership
Minimum Gain Attributable to Partner Nonrecourse Debt, then each Partner with a
share of the Partnership Minimum Gain Attributable to Partner Nonrecourse debt
at the beginning of the year shall , before any other allocations are made for
such year other than those pursuant to Section (b) above, be allocated in a
manner so as to satisfy the requirements of Treasury Regulation Section
1.704-2(i)(4), items of Partnership income and gain for such year (and, if
necessary, for subsequent years) in an amount equal to each Partner's share of
the net decrease in Minimum Gain Attributable to Partner Nonrecourse Debt as
determined in accordance with Treasury Regulation Section 1.704-2(i)(4).
(d) If during any taxable year a Partner unexpectedly receives (i) a
distribution of cash or property from the Partnership or (ii) an adjustment or
allocation described in Treasury Regulation Section 1.704-1(b)(2)(ii) (d) (5) as
in effect on the date hereof (concerning allocations of loss and deduction if
Partners' interests change during the year, if a Partnership interest is
acquired by gift or if a Partner receives certain Partnership property in
redemption of part or all of his or its interest in the Company), and if such
adjustment , allocation or distribution would cause at the end of the taxable
year a deficit balance in such Partner's Adjusted Capital Account in excess of
his allocable share of Minimum Gain, then a pro-rata portion of each item of
partnership income, including gross income, and gain for such taxable year (and,
if necessary, subsequent taxable years) shall be allocated to such Partner in an
amount and in a manner sufficient to eliminate such excess balance as quickly as
possible before any other allocation is made for such year other than pursuant
to Subsection (b) hereof so as to satisfy the requirements of Treasury
Regulation Section 1.704-1(b)(2)(ii)(d) (qualified income offset).
(e) To the extent required by Treasury Regulation Section 1.704-2(i)(1),
Partner Nonrecourse Debt Deductions for any taxable year shall be allocated to
the Partner (or Partners) who bear(s) the economic risk of loss of such Partner
Nonrecourse Debt.
(f) In the event that any allocation is or has been made to a Partner
pursuant to Subsections (a), (b), (c) (d) or (e) above, subsequent items of
income, deduction, gain and loss shall be allocated before any other allocations
are made (subject to the provisions of Subsections (a), (b), (c) (d) or (e)) to
the Partners in the manner which would result in each Partner having a Capital
Account balance equal to what it would have been had the allocation pursuant to
subsections (a), (b), (c) (d) or (e) not occurred.
(g) For purposes of this Article, each Partners "Adjusted Capital Account"
shall equal the Capital Account of each Partner (1) reduced at the end of each
taxable year by the sum of (x) the excess of distributions reasonably expected
to be made to such Partner over the offsetting increases to such Partner's
Capital Account reasonably expected to be made in the same taxable year as the
aforesaid distributions, and (y) allocations expected to be made described in
Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(5) as in effect on the date
hereof (concerning allocations of loss and deduction if Partners' interests
change during the year, if a Partnership interest is acquired by gift or if a
Partner receives certain Partnership property in redemption of part or all of
his interest in the Partnership), and (2) increased by the sum of (i) the
amount, if any, which the Partner is obligated to restore to the Partnership
upon liquidation of his interest therein if a deficit balance exists in his
Capital Account at such time, (ii) the outstanding principal balance of any
promissory note made by such Partner and contributed to the Partnership if such
note is not readily tradable on an established
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securities market and if such note must be satisfied within 90 days after the
date said Partner's interest is liquidated, (iii) the amount of any
unconditional obligation of such Partner to make subsequent contributions to the
Partnership (whether imposed by this Agreement or by law), and (iv) the sum of
(a) the amount the Partner would be personally liable for either as a Partner or
in his individual capacity as a guarantor or otherwise, and (b) the economic
risk of loss the Partner would bear attributable to any Partnership liability
(as determined in accordance with Treasury Regulation Section 1.752-2).
(h) In accordance with Section 704(b) and (c) of the Code and Regulations
thereunder, income, gain, loss and deduction with respect to any property
contributed to the capital of the Partnership (including all or part of any
deemed capital contribution under Section 708 of the Code) shall, solely for tax
purposes, be allocated among the Partners so as to take account of any variation
between the adjusted basis of such property to the Partnership and its agreed
value. In the event that Capital Accounts are ever adjusted pursuant to Treasury
Regulation Section 1.704-1(b)(2) to reflect the fair market value of any
Partnership property, subsequent allocations of income gain, loss and deduction
with respect to such asset shall take account of any variation between the
adjusted basis of such asset and its value as adjusted in the same manner as
required under Section 704(c) of the Code and the Regulations thereunder.
(i) The allocations provided in Sections 4.5(a)-(h) are intended to comply
with the provisions of Section 704(b) of the Code and the Regulations
thereunder. However, If any such allocation causes a distortion in the Partner's
Partnership Interest in contravention of the Partners' economic arrangement as
reflected in Article 4, the General Partner has the authority to make curative
allocations to bring such allocations in accordance with such Partner'
Partnership Interest, as if such allocations which caused the distortion had not
occurred.
(j) The allocations provided in this Section are intended to comply with
the provisions of Section 704(b) of the Code and the Regulations thereunder. If
any such allocation under this Section is inconsistent therewith, the General
Partner has the authority to make a curative allocation to bring such
allocations in compliance with Section 704(b) of the Code and Regulations
thereunder.
For purposes of this Agreement, the following terms shall have the
definitions set forth below:
"Nonrecourse Liability." Any debt of the Partnership for which no Partner
has any economic risk of loss, determined in accordance with Internal Revenue
Regulation Section 1.704-2(b)(3).
"Partner Nonrecourse Debt." Any nonrecourse debt of the Partnership for
which a Partner bears the economic risk of loss, determined in accordance with
Treasury Regulation Section 1.704-2(b)(4).
"Partner Nonrecourse Debt Deductions." With regard to any Partner
Nonrecouse Debt, the amount of the net increase during any Partnership taxable
year in the amount of Minimum Gain Attributable to Partner Nonrecourse Debt,
over the aggregate amount of any distributions during such year to the Partner
who bears the economic risk of loss for such debt that are allocable to an
increase in the Minimum Gain Attributable to such Partner Nonrecourse Debt. Such
amounts shall be determined in accordance with Treasury Regulation Section
1.704-2(I) (2).
"Recourse Debt." All Partnership debt other than Nonrecourse Liability.
10. Hot Issues.
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In the event the General Partner decides to invest in securities which are
the subject of a public distribution and which the General Partner, in his sole
discretion, believes may become a "hot issue" as that term is defined in Article
III, Section 1 of the Rules of Fair Practice of the National Association of
Securities Dealers, Inc. (the "Association"), such investment shall be made in
accordance with the following provisions:
(a) any such investment made in a particular Fiscal Period shall be made in
a special account (the "Hot Issues account");
(b) only those Partners who do not fall within the proscription of Article
III, section 1 of said Rules of Fair Practice ("Unrestricted Partners") shall
have any beneficial interest in the Hot Issues Account;
(c) each Unrestricted Partner shall have a beneficial interest in the Hot
Issues Account for any Fiscal Period in the proportion which (i) such
Unrestricted Partner's Capital account as of the beginning of the Fiscal Period
bore to (ii) the sum of the Capital Accounts of all Unrestricted Partners as of
the beginning of such fiscal Period.
(d) Funds required to make a particular investment shall be transferred to
the Hot Issues account from the regular account of the Partnership; securities
involved in the public distribution shall be purchased in the Hot Issues
Account, held in the Hot Issues Account and eventually sold from the Hot Issues
Account or transferred to the regular account at fair market value as of the day
of transfer as determined by the General Partner with such transfer being
treated as a sale; if such securities are sold from the Hot Issues account, the
proceeds of the sale shall be transferred from the Hot Issues account to the
regular account of the Partnership.
(e) as of the last day of each Fiscal Period in which a particular
investment or investments are held in the Hot Issues Account: (A) interest shall
be debited to the Capital Accounts of the Unrestricted Partners in accordance
with their beneficial interest in the Hot Issues Account at the interest rate
being paid by the Partnership from time to time for borrowed funds during the
period in that Fiscal Period that funds from the regular account have been held
in or made available to the particular Hot Issues Account or, if no such funds
are being borrowed during such period, the interest rate that the General
Partner determines would have been paid if funds had been borrowed by the
Partnership during such period; and such interest shall be credited to the
Capital Accounts of all the Partners, both General and Limited, in the
proportions which (i) each Partner's Capital Account as of the beginning of such
Fiscal Period bore to (iii) the sum of the Capital Accounts of all Partners as
of the beginning of such Fiscal Period and (B) any Net Profits or Net Losses
during such Fiscal Period with respect to the Hot Issues Account shall be
allocated to the Capital accounts of the Unrestricted Partners in accordance
with their beneficial interest in the Hot Issues Account during such Fiscal
Period; provided, however, that the amount of such interest shall not exceed the
amount of profit accrued in the Hot Issues Account; and
(f) the determination of the General Partners as to whether a particular
Partner falls within the proscription of Article III, Section I of said Rules of
Fair Practice shall be final.
11. Valuation.
The Partnership's assets shall be valued in accordance with the following
principles:
(a) Any Security that is listed on a national securities exchange xxxx
Xxxx 8
be valued at its last sale price on the date of determination as recorded by the
composite tape system, or if no sales occurred on that day, at the mean between
the closing "bid" and "asked" prices on that day as recorded by the system or
the exchange, as the case may be;
(b) Any Security that is a National Market Security will be valued at its
last sale price on the date of determination as reported by the National
Association of Securities dealers automated quotations system ("NASDAQ") or if
no sale occurred on that day, at the mean between the closing "bid" and "asked"
prices on that day as reported by NASDAQ:
(c) Any Security not listed on a national securities exchange and not a
National Market Security will be valued at the mean between the closing "bid"
and "asked" prices on the date of determination as reported by NASDAQ or, if not
so reported, as reported in the over-the-counter market in the United States;
(d) An option shall be valued at the last sales price or, in the absence of
a last sales price, the last offer price; and
(e) All other Securities shall be assigned the value that the General
Partner in good faith determine.
12. Determination by General Partner of Certain Matters.
(a) All matters concerning the valuation of Securities, the allocation of
profits, gains and losses among the Partners, including the taxes on them and
accounting procedures, not specifically and expressly provided for by the terms
of this Agreement, shall be determined in good faith by the General Partner,
whose determination shall be final, binding and conclusive upon all of the
Partners.
(b) gains, losses, and expenses of the Partnership for each Fiscal Period
shall be allocated among the Partners for income tax purposes in a manner so as
to reflect, as nearly as possible, the amounts credited or charged to each
Partner's Capital Account pursuant to Section 9 of this Agreement.
(c) The General Partner shall have the power to make all tax elections and
determinations for the Partnership, and to take any and all action necessary
under the Code or other applicable law to effect those elections and
determinations. All such elections and determinations by the General Partner
shall be final, binding and conclusive upon all Partners.
13. Liability of Partners.
(a) The General Partner shall not be obligated to contribute cash or other
assets to the Partnership to make up deficits in their Capital accounts or in
the Capital Accounts of the Limited Partners either during the term of the
Partnership or upon liquidation. The General Partner shall be liable for all
debts and obligations of the partnership to the extent that the Partnership is
unable to pay such debts and obligations up to the extent of Veteri's capital.
(b) The doing of any act or the failure to do any act by a General Partner,
the effect of which may cause or result in loss, liability, damage or expense to
the Partnership or any Partner shall not subject a General Partner to any
liability to the Partnership or to any Partner, except that a General Partner
may be so liable if it has not acted in good faith, or has committed gross
misconduct or was grossly negligent.
(c) A Limited Partner will not be liable for any debts or bound by any
obligations of the Partnership except to the extent set forth in
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subsections (d), (e) and (f) of this Section 13.
(d) A Limited Partner who has received the return of any part of his or its
Capital contribution without violation of this Agreement or the Act shall not
therefore be labile to the Partnership or its creditors.
(e) A Limited Partner receiving a return of any portion of his or its
Capital Contribution in violation the Act or this Agreement will be Liable to
the Partnership for a period of six (6) years thereafter for the amount of the
contribution wrongfully returned.
(f) A Limited Partner may be liable to the Partnership or creditors of the
Partnership for any amounts distributed if, and to the extent that, at the time
of the distribution, he actually knew that, after giving effect to the
distribution, all liabilities of the Partnership, other than liabilities to
Partners on account of their interest in the Partnership, exceeded the fair
value of the Partnership's assets.
14. Rights and Duties of the General Partner
(a) The General Partner shall have the exclusive right to manage and
control the affairs of the Partnership, and shall have the power and authority
to do all things necessary or proper to carry out the purposes of the
Partnership. The General Partner shall devote an amount of time and attention
that the General Partner in its sole discretion deems necessary or appropriate.
(b) Without limiting the generality of the foregoing, the General Partner
shall have full power and authority:
(i) to engage independent agents, investment advisors, attorneys,
accountants and custodians as the General Partner deems necessary or
advisable for the affairs of the Partnership;
(ii) to receive, buy sell, exchange, trade, and otherwise deal in and
with Securities and other property of the Partnership;
(iii) to open, conduct and close accounts with brokers on behalf of
the Partnership and to pay the customary fees and charges applicable to
transactions in those accounts;
(iv) to open, maintain and close accounts, including margin accounts,
with brokers and banks, and to draw checks and other orders for the payment
of money by the Partnership;
(v) to file, on behalf of the Partnership, all required local, state
and Federal tax and other returns relating to the Partnership;
(vi) to cause the Partnership to purchase or bear the cost of any
insurance covering the potential liabilities of the General Partner and any
associate, employee or agent of the General Partner arising out of the
General Partner's actions as General Partner under this Agreement;
(vii) to cause the Partnership to purchase or bear the cost of any
insurance covering the potential liabilities of any person serving as a
director, officer or employee of an entity in which the Partnership has an
investment or of which the Partnership is a creditor;
(viii) to commence or defend litigation or submit to arbitration any
claim or cause of action that pertains to the Partnership or any
Partnership assets;
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(ix) to enter into, make and perform contracts, agreements and other
undertakings, and to do any other acts, as the General Partner deems
necessary or advisable for, or as may be incidental to, the conduct of the
business of the Partnership, including, without limiting the generality of
the foregoing, contracts, agreements, undertakings and transactions with
any Partner or with any other person, firm or corporation having any
business, financial or other relationship with any Partner or Partners:
(x) to make or revoke elections pursuant to Section 754 of the Code to
adjust the basis of the Partnership's property as permitted by Sections
734(b) and 743(b) of the Code; and
(xi) to designate a Tax Matters Partner for all purposes under the
Code
15. Expenses.
The Partnership shall bear all expenses relating to its organization. The
Partnership will bear the expenses of its administration, accountant, its legal
counsel, and expenses of investments.
16. Administrative Fee.
The General Partner will not charge an administrative fee.
17. Limitation on Powers of Limited Partners.
No Limited Partner shall participate in the control of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for the Partnership or to bind the Partnership in any other way.
18. Other Business ventures.
Each Partner agrees that each General Partner and its affiliates and
associates may engage in other business activities or possess interest in other
business activities of every kind and description, independently or with others.
These activities may include, without limitation, establishing a broker-dealer
and investing in real estate and real estate related partnerships, or in
investing, in financing, acquiring and disposing of interest in securities in
which the Partnership may from time to time invest, or in which the Partnership
is able to invest or otherwise have any interest. The Limited Partners agree
that the General Partner and its affiliates may act as general partner of other
partnerships, including investment partnerships.
19. Limitation on Assignability of Interest of Limited Partners.
(a) No Limited Partner may assign or otherwise transfer or encumber his or
its interest in the Partnership, in whole or in part, without the consent of the
General Partner and without a written opinion of counsel to or approved by the
General Partner that the proposed transfer (i) is consistent with all applicable
provisions of the 1933 Act, and the rules and regulations thereunder, as from
time to time in effect, as well as any applicable provisions of any state "blue
sky" law; and (ii) would not result in the Partnership's having to register as
an investment company under the Investment Company Act of 1940, as amended.
(b) Notwithstanding any other provision of this Agreement, any
Page 11
successor to any Limited Partner shall be bound by the provisions of this
Agreement. Prior to recognizing any assignment of an interest in the Partnership
that has been transferred in accordance with this Section 19, the General
Partner may require the transferring Limited Partner to execute and acknowledge
an instrument of assignment in form and substance satisfactory to the General
Partner, and may require the assignee to agree in writing to be bound by all the
terms and provisions of this Agreement, to assume all of the obligations of the
assigning Limited Partner and to execute whatever other instruments or documents
the General Partner deems necessary or desirable in connection with the
assignment.
(c) No Limited Partner shall have the right to have his or its assignee
admitted as a substitute Limited Partner, except upon the written consent of the
General Partner, which consent may be withheld in the sole discretion of the
General Partner.
(d) Each Limited Partner hereby approves of the admission to the
Partnership as a Limited Partner of any assignee who succeed to the interest in
the Partnership of a Limited Partner in accordance with the provisions of this
Section 19.
20. Withdrawals by a Limited Partner.
(a) (i) A Limited Partner who shall have been a Limited Partner for at
least eight full Fiscal Quarters shall have the right, as of the end of any
Fiscal Year, or at other times at the discretion of the General Partner, to
withdraw all or a portion of the amount of his or its Capital Account, so long
as the General Partner receives written notice of the intended withdrawal not
less than ninety (90) days prior to the withdrawal, stating the amount to be
withdrawn. In no event, however, shall a Limited Partner be permitted to
withdraw any amounts from his or its Capital Account in excess of the positive
balance of his or its Capital Account. If the amount of a Limited Partner's
withdrawal represents less than seventy-five (75%) of the Limited Partner's
Capital Account, the Limited Partner will receive the proceeds of the withdrawal
within thirty (30) days after the date of withdrawal. If the amount of a Limited
Partner's withdrawal represents seventy-five (75%) or more of the Limited
Partner's Capital Account, the Limited Partner will receive seventy-five percent
(75%) of his Capital account within thirty (30) days after the date of
withdrawal and the remainder of the amount withdrawn within ten (10) days after
the Partnership has received financial statements from its independent certified
public accountants pursuant to Section 23(c) of this Agreement. If a Limited
Partner requests withdrawal of capital which would reduce his Capital Account
below the amount of his initial Capital Contribution, the General Partner may
treat such request as a request for withdrawal of all of such Partner's Capital
Account. The distribution of any amount withdrawn by a Limited Partner may take
the form of cash and/or marketable securities as determined by the General
Partner in his sole discretion.
(ii) In the event of a proposed withdrawal of capital by one or more
General Partner or Affiliates pursuant to Section 21(a)(ii) of this Agreement,
as a result of which the aggregate of the Capital Accounts of the General
Partner and Affiliates will be less than $50,000 (fifty thousand dollars), a
Limited Partner shall have the right to withdraw all or a portion of the amount
of his or its Capital Account, so long as the General Partner receives written
notice of the intended withdrawal not more than fifteen (15) days after the date
of the notice of withdrawal by such General Partner or General Partner or
Affiliate or Affiliates pursuant to said Section 21(a)(ii), stating the amount
to be withdrawn. In such event the withdrawal by such
Page 12
Limited Partner shall be effective as of the effective date of the withdrawal by
the General Partner or General Partners pursuant to said Section 21(a)(ii). The
amount available for withdrawal shall be calculated in the same manner as
provided for in the last sentence of paragraph (b) of Section 5 hereof.
(b) Any Limited Partner's interest in the Partnership may be terminated by
the Partnership as of the end of any Fiscal Year upon prior written notice, so
long as the General Partner determines the termination to be in the best
interest of the Partnership. In the event that a Limited Partner's interest in
the Partnership is terminated pursuant to this Section 20, the Limited Partner
shall receive ninety percent (90%) of the value of his Capital Account within
ninety (90) days after written notice of termination is given by the Partnership
and the remaining ten percent (10%) within ten (10) business days after receipt
by the Partnership of financial statements with respect to the Fiscal Year in
which his or its interest in the Partnership is terminated.
21. Withdrawals by the General Partners and Affiliates.
(a) (i) The General Partner shall have the right to withdraw any amount of
cash from his Capital Account as of the end of any Fiscal Year, without prior
notification to the Limited Partners, provided that, after giving effect to such
withdrawal, the aggregate Capital accounts of the General Partner and his
Affiliates are not less than $50,000 (fifty thousand dollars).
(ii) Upon forty-five (45) days' prior notice to the Limited Partners, a
General Partner or an Affiliate may withdraw any amount from his Capital Account
contributed to the Partnership as a result of which withdrawal the aggregate
Capital Accounts of the General Partner and their Affiliates would be reduced
below $50,000. (fifty thousand dollars).
(b) The General Partner may voluntarily resign or withdraw from the
Partnership as of the end of any Fiscal Year upon sixty (60) days' written
notice sent to all Partners.
22. Dissolution and Winding Up of the Partnership.
On dissolution of the Partnership, the General Partner or if there is no
General Partner, one or more persons approved by Limited Partners holding a
majority in interest of the Capital Accounts of the Limited Partners) shall wind
up the Partnership's affairs and shall distribute the Partnership's assets in
the following manner and order: (a) in satisfaction of the claims of all
creditors of the Partnership, other than the General Partners; (b) in
satisfaction of the claims of the General Partners as creditors of the
Partnership; and (c) any balance to the Partners in the relative proportions
that their respective Capital Accounts bear to each other, those Capital
Accounts to be determined as if the Fiscal Year ended on the date of the
dissolution.
23. Accounting and Reports.
(a) The records and books of account of the Partnership shall be reviewed
as of the end of each fiscal Year by independent certified public accountants
selected by the General Partner in his sole discretion.
(b) As soon as practicable after the end of each Fiscal Year, the
Page 13
General Partner shall cause to be delivered to each person who was a Partner at
any time during that Fiscal Year all information deemed necessary by the General
Partner in his sole discretion for the preparation of the Partner's income tax
returns, including a Form 1065/Schedule K-1 statement showing the Partner's
share of Net Profit or Net Loss, deductions and credits for the year Federal
income tax purposes, and the amount of any distributions made to or for the
account of the Partner pursuant to this Agreement.
(c) The independent certified public accounts selected by the General
Partner in accordance with subsection (a) of this Section 23 shall prepare and
mail to each Partner, within ninety (90) days after the end of each fiscal Year,
an income statement for the Fiscal Year and a balance sheet as of the end of the
Fiscal Year.
(d) The Partnership shall cause to be prepared and mailed to each Partner a
report setting out as of the end of each fiscal quarter information determined
by the General Partner to be appropriate.
(e) The General Partner shall cause tax returns for the Partnership to be
prepared and timely filed with the appropriate authorities.
24. Books and Records.
The General Partner shall keep at the Partnership's principal office:
(a) books and records pertaining to the Partnership's business showing all
of its assets and liabilities, receipts and disbursements, realized profits and
losses, Partners' Capital Accounts and all transactions enter into by the
Partnership;
(b) a current list of the full name and last known home, business or
mailing address of each Partner set out in alphabetical order;
(c) a copy of the Certificate and all amendments to it, together with
executed copies of any powers of attorney pursuant to which the Certificate and
any amendments to it have been executed;
(d) copies of the Partnership's Federal, state and local income tax returns
and reports, if any, for the three (3) most recent years; and
(e) copies of this Agreement as may be amended from time to time.
All books and records of the Partnership required to be kept under this
Section 24 shall be available for inspection by a Partner of the Partnership at
the offices of the Partnership during ordinary business hours for any purpose
reasonably related to the Partner's interest as a Partner in the Partnership.
25. Indemnification.
(a) The Partnership shall indemnify each General Partner and any of his
Affiliates (each an "Indemnitee") to the fullest extent permitted by law and
will hold each harmless from and with respect to (i) all fees, costs and
expenses incurred in connection with, or resulting from, any claim, action or
demand against any indemnitee that arises out of or in any way relates to the
Partnership, its properties, business or affairs, and (ii) any losses or damages
resulting from any such claim, action or demand, including amounts paid in
settlement or compromise of the claim, action or demand.
Page 14
(b) No Indemnitee shall be indemnified by the Partnership with respect to
any action or failure to act that does not constitute good faith, or that
constitutes willful misfeasance.
(c) The Partnership may pay the expenses incurred by an Indemnitee in
defending a civil or criminal action, suit or proceeding brought by a party
against the Indemnitee that arises out of or is in any way related to the
Partnership, its properties, business or affairs, upon receipt of an undertaking
by the Indemnitee to repay the amount advanced by the Partnership if an
adjudication or determination is subsequently made by a court of competent
jurisdiction that the Indemnitee is not entitled to indemnification as provided
in this Agreement.
(d) The right of indemnification provided in this Section 25 shall be in
addition to any rights to which an Indemnitee may otherwise be entitled and
shall inure to the benefit of the executors, administrators, personal
representatives, successors or assigns of each Indemnitee.
(e) The rights to indemnification and reimbursement provided for in this
Section 25 may be satisfied only out of the assets of the Partnership. No
Partner shall be personally liable for any claim for indemnification or
reimbursement under this Section 25.
26. Amendment of Partnership Agreement.
This Agreement may be amended, in whole or in part, by the written consent
of (a) the General Partner, and (b) Partners the value of whose Capital Account
constitute not less than fifty percent (50%) of the total value of all Capital
Accounts of the Partnership, provided that no such amendment shall affect the
allocation of Net Profit or Net Loss to any Partner who has not consented to
such amendment. In addition, any provision of this Agreement, other than Section
9, may be amended by the General Partner in any manner that does not, in the
sole discretion of the General Partner, adversely affect any Limited Partner.
27. Notices.
Notices that may or are required to be given under this Agreement by any
part to another shall be in writing and deposited in the United States mail,
certified or registered, postage prepaid, addressed to the respective parties at
their addresses set out in Schedule A to this Agreement or to any other
addressee designated by any Partner by notice addressed to the Partnership in
the case of any Limited Partner and to the General Partner in the case of the
General Partners. Notices shall be deemed to have been given when deposited in
the United States mail within the continental United States.
28. Agreement Binding Upon Successors and Assigns.
This Agreement shall inure to the benefit of and shall be binding upon the
heirs, executors, administrators or other representatives, successors and
assigns of the Partners.
29. Governing Law.
This Agreement, and the rights of the Partners under it, shall be governed
by and construed in accordance with the law of the State of New Jersey.
Page 15
30. Consents.
Any and all consents, agreements or approvals provided for or permitted by
this Agreement shall be in writing and signed copies of them shall be filed and
kept with the books of the Partnership.
31. Miscellaneous.
(a) This Agreement, including Schedule A appended to it, constitutes the
entire understanding and Agreement of the Partners as to the operation of the
Partnership.
(b) This agreement may be executed in counterparts, each of which shall be
deemed to be an original.
(c) Each provision of this Agreement is intended to be severable. A
determination that a particular provision of this Agreement is illegal or
invalid shall not affect the validity of the remainder of the Agreement.
(d) Nothing contained in this Agreement shall be construed to constitute
any Partner the agent of another Partner, except as specifically provided in
this Agreement, or in any manner to limit the partners in the carrying on of
their own respective business or activities.
(e) If there is a conflict between the terms and conditions of the
Partnership Agreement and Offering Memorandum, the Partnership Agreement shall
be controlling.
IN WITNESS WHEREOF, the Partners have executed this Agreement as of the
date first above written.
GENERAL PARTNER
VETERI PLACE CORPORATION
By: Xxxxxxxx X. Xxxxxxx,
---------------------------
President
LIMITED PARTNERS:
All Limited Partners now and hereafter admitted as Limited Partners of the
Partnership, pursuant to Powers of Attorney now and hereafter executed in favor
of, and delivered to the General Partner.
XXXXXXXX X. XXXXXXX
Attorney-in-Fact
Page 16
Xxxxxxxx X. Xxxxxxx
AMENDMENT #1
TO LIMITED PARTNERSHIP
CERTIFICATE OF
XXXXXXX INVESTMENT PARTNERSHIP II, L.P.
FILED AUGUST 13, 1998
Section 1 The name of the Partnership is Xxxxxxx Investment
Partnership II, L.P.
Section 6 Section 6 is hereby amended to add the following people and
entities as limited partners:
NAME CAPITAL CONTRIBUTION
-------------------------------- ---------------------
Xx. Xxxx Xxxxx $ 150,000.00
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxx 00000
Hawthorne Financial $ 179,284.87
c/o Xxxx Xxxxxxx
000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx & Xxxxx Xxxxxxx JTWROS $ 70,715.13
000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxxxx Xxxxxxx $ 100,000.00
00 Xxxxxx Xxxxx
Xxx, Xxx Xxxx 00000
Xxxxxxx Family Irrevocable Trust $ 150,000.00
00 Xxxxxx Xxxxx
Xxx, Xxx Xxxx 00000
Urban West Capital Partners,L.P. $ 250,000.00
Att: Xxxxxxx Xxxxxxx
000 Xxxxxxxx, Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Xxxxxxx Consultants, Inc. $ 22,000.00
Money Purchase Plan
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Amalgamated Sludge LLC $ 178,000.00
0000 Xxxxxx Xxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
VETERI PLACE CORPORATION, G.P.
By: Xxxxxxxx X. Xxxxxxx,
------------------------------------
President
Veteri Place Corporation
Certificate of Incorporation filed
January 6, 1995
Dated: September 4, 1998
Page 00
XXXXX XX XXX XXXXXX )
) ss:
COUNTY OF XXXXXX )
On the 4th day of September, 1998, before me personally came
Xxxxxxxx X. Xxxxxxx, to me known, who being by me sworn, did depose and say that
he resides at 00 Xxxxxx Xxxxx, Xxxxx, Xxx Xxxxxx 00000, that he is the President
of Veteri Place Corporation, the General Partner of Xxxxxxx Investment
Partnership II, L.P. described in and which executed the above instrument; and
that he signed such instrument by order of the Board of Directors of said
Corporation.
AMENDMENT #2 Filed Mar 5 1999
TO LIMITED PARTNERSHIP
CERTIFICATE OF
XXXXXXX INVESTMENT PARTNERSHIP II, L.P.
FILED AUGUST 13, 1998
Section 1 The name of the Partnership is Xxxxxxx Investment
Partnership, XX
Xxxxxxx Investment Partnership II, LP
was filed on August 13, 1998, Amendment #1 to Xxxxxxx
Investment Partnership II, LP was filed on was filed
on September 8, 1998.
Section 6 Section 6 is hereby amended to add the following
people and entities as limited partners:
NAME CAPITAL CONTRIBUTION
Xxxxxxx Xxxxxxxxxx $ 200,000.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xx. Xxxxxx Xxxxxx $ 100,000
00 Xxxx 00xx Xxxxxx, Xxx. 0X
Xxx Xxxx, XX 00000
Xx. Xxxxx X. Xxxxxxxxx $ 100,000
Xxxxxxxxx Family Partnership, Ltd.
000 Xxx Xxxxxxxx Xx.
Xxx Xxxxx, XX 00000
Xxxxxxx Xxxxxxxx $ 200,000
Pound Hollow Rd.
Old Brookville, NY 11545
Xxxxxxx, Xxxxxxxx 00000
Page 18
Xxxxx Xxxxxxxxx $ 100,000
000 Xxxxxxxx Xxxxxx
#000
Xxxxxxxx, XX 00000
Xxx Blew $ 100,000
0000 X Xxxxx Xxxxxxx Xxx.
Xxxxxxx, XX 00000
Metalle & Weiche Rohstoffe $ 1,300,000
Xxxxxxxxxxxxxxxx 00
Xxxxxxxxx X00000
Xxxxxxx Xxxxxxx, Living $ 100,000
Trust dtd 8/5/91
0000 Xxxx xx Xxxxxx Xxxxx
Xxx. 000X Xxxxxxxx Xxx, XX 000000-0000
Section 6 Section 6 is hereby amended to revise the amount of
Capital Contribution for the following people and
entities as limited partners:
Xxxx & Xxxxx Xxxxxxx JTWROS $250,000.00
00000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX
VETERI PLACE CORPORATION, G.P.
By: Xxxxxxxx X. Xxxxxxx,
------------------------------------
President
Veteri Place Corporation,
Certificate of Incorporation
filed January 6, 1995,
General Partner of Xxxxxxx
Investment Partnership II, L.P.
Dated:March 4, 0000
XXXXX XX XXX XXXXXX )
) ss:
COUNTY OF XXXXXX )
On the day of March, before me personally came Xxxxxxxx X.
Xxxxxxx, to me known, who being by me sworn, did depose and say that he resides
at 00 Xxxxxx Xxxxx, Xxxxx, Xxx Xxxxxx 00000, that he is the President of Veteri
Place Corporation, the General Partner of Xxxxxxx Investment Partnership II,
L.P. described in, and which executed the above instrument; and that he signed
such instrument by order of the Board of Directors of said Corporation.
Page 19
