Amended and Restated Limited Partnership Agreement

Exhibit 10.23

EXECUTION COPY

 

EVERCORE MEXICO PARTNERS II, L.P.

An Ontario Limited Partnership

Amended and Restated

Limited Partnership Agreement

Dated as of December 18, 2008

 

NOTICE

NEITHER EVERCORE MEXICO PARTNERS II, L.P. NOR THE LIMITED PARTNER INTERESTS THEREIN HAVE BEEN OR WILL BE REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED, THE U.S. INVESTMENT PARTNERSHIP ACT OF 1940, AS AMENDED, THE SECURITIES LAWS OF ANY OF THE STATES OF THE UNITED STATES OR THE SECURITIES LAWS OF ANY FOREIGN JURISDICTION.

THE DELIVERY OF THIS LIMITED PARTNERSHIP AGREEMENT SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY OFFER, SOLICITATION OR SALE OF LIMITED PARTNER INTERESTS IN EVERCORE MEXICO PARTNERS II, L.P. IN ANY JURISDICTION IN WHICH SUCH OFFER, SOLICITATION OR SALE IS NOT AUTHORIZED OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER, SOLICITATION OR SALE.

THE LIMITED PARTNER INTERESTS IN EVERCORE MEXICO PARTNERS II, L.P. ARE SUBJECT TO RESTRICTIONS ON TRANSFERABILITY AND RESALE, MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS PERMITTED UNDER APPLICABLE FEDERAL, STATE OR FOREIGN SECURITIES LAWS AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE REQUIREMENTS AND CONDITIONS SET FORTH IN THIS LIMITED PARTNERSHIP AGREEMENT.

TABLE OF CONTENTS

 

 

i

Table of Contents

(Continued)

 

 

ii

This AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT of EVERCORE MEXICO PARTNERS II L.P., a limited partnership organized under the laws of the Province of Ontario, Canada (the “ Partnership ”), dated as of December 18, 2008 (the “ Effective Date ”), is entered into by and among Evercore Mexico GP Holdings LLC, a Delaware limited liability company (the “ General Partner ”), Evercore Mexico Management II, L.L.C., a Delaware limited liability company as the organizational limited partner (the “ Organizational Limited Partner ”), the limited partners named in Annex A hereto and such other parties which may from time to time be admitted as limited partners in accordance with this agreement (the “ Limited Partners ”).

WHEREAS, the Partnership was formed pursuant to a Declaration of Limited Partnership, which was executed by the General Partner and filed for recordation in the office of the Registrar under the Limited Partnerships Act (Ontario) on September 24, 2007 and the entering into a Limited Partnership Agreement dated as of September 11, 2007 between the General Partner and the Organizational Limited Partner; and

WHEREAS, the parties hereto desire to enter into this Amended and Restated Limited Partnership Agreement of the Partnership to permit the withdrawal of the Organizational Limited Partner and the admission of the Limited Partners and further to make the modifications hereinafter set forth;

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.1 Definitions .

Unless the context otherwise requires, the following terms shall have the following meanings for purposes of this Agreement:

“ Act ” means the Limited Partnerships Act (Ontario) as amended from time to time.

“ Adjusted Capital Account Balance ” means, with respect to any Partner, the balance in such Partner’s Capital Account adjusted (i) by taking into account the adjustments, allocations and distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6); and (ii) by adding to such balance such Partner’s share of Partnership Minimum Gain and Partner Nonrecourse Debt Minimum Gain, determined pursuant to Treasury Regulations Sections 1.704-2(g) and 1.704 2(i)(5) and any amounts such Partner is obligated to restore pursuant to any provision of this Agreement. The foregoing definition of Adjusted Capital Account Balance is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.

 

1

“ Affiliate ” has the meaning set forth in the Fund Partnership Agreement.

“ After-Tax Capital Proceeds ” attributable to any distribution of Capital Proceeds means the difference between (a) the amount of such distribution of Capital Proceeds minus (b) the product of (i) the taxable income related to such Capital Proceeds and (ii) the Assumed Income Tax Rate.

“ After-Tax Carried Interest Amount ” with respect to any Partner means an amount equal to:

(a) the amount of any Carried Interest Proceeds distributed or deemed distributed to such Partner (including any amounts placed on behalf of such Partner into the Holdback Account pursuant to Section 4.5(a)), minus

(b) the Income Tax Amount with respect to such Carried Interest Proceeds.

“ Agreement ” means this Amended and Restated Limited Partnership Agreement of the Partnership, including annexes hereto, as it may be amended, supplemented, modified or restated from time to time.

“ Alternative Investment Vehicle ” has the meaning set forth in the Fund Partnership Agreement.

“ Assignee ” has the meaning set forth in Section 8.1(b).

“ Assumed Income Tax Rate ” means the highest effective marginal combined U.S. Federal, state and local income tax rate for a Fiscal Year prescribed for an individual residing in New York, New York (taking into account (a) the deductibility of state and local income taxes for Federal income tax purposes assuming the limitation described in Section 68(a)(2) of the Code applies and (b) the character of the applicable income ( e.g ., long-term or short-term capital gain or ordinary or exempt)).

“ Business Day ” means a day which is not a Saturday, Sunday or a day on which banks in New York City are closed.

“ Canadian-Resident Person ” means an individual or entity that is resident in Canada for the purposes of the Income Tax Act (Canada) or the Corporations Act (Ontario) and any successor legislation thereto.

“ Capital Account ” has the meaning set forth in Section 5.2.

“ Capital Commitment ” means, as of any date, with respect to any Partner, an amount equal to such Partner’s Profit Sharing Percentage multiplied by the General Partner Capital Commitment as of such date, which amount shall be set forth in the books and records of the Partnership, including in the Record of Limited Partners.

 

2

“ Capital Proceeds ” has the meaning set forth in Section 4.1(c)(ii).

“ Carried Interes t” has the meaning set forth in the Fund Partnership Agreement.

“ Carried Interest Give Back Percentage ” shall mean, for any Partner, the percentage determined by dividing (i) the After-Tax Carried Interest Amount with respect to such Partner by (ii) the aggregate After-Tax Carried Interest Amounts with respect to all Partners.

“ Carried Interest Proceeds ” has the meaning set forth in Section 4.1(c)(iii).

“ Carrying Value ” means, with respect to any asset of the Partnership or any entity treated as a partnership for U.S. Federal income tax purposes in which it invests, the asset’s adjusted basis for U.S. Federal income tax purposes, except that the Carrying Values of all such assets shall be adjusted to equal their respective fair market values (as reasonably determined by the General Partner in a manner consistent with determinations thereof for the Fund) in accordance with the rules set forth in Treasury Regulations Section 1.704 1(b)(2)(iv)(f), except as otherwise provided herein, immediately prior to: (a) the date of the acquisition of any additional Interest by any new or existing Partner in exchange for more than a de minimis capital contribution to the Partnership, (b) the date of the distribution of more than a de minimis amount of Partnership property (other than a pro rata distribution) to a Partner or (c) the date of a grant of any additional Interest to any new or existing Partner as consideration for the provision of services to or for the benefit of the Partnership; provided that adjustments pursuant to clauses (a), (b) and (c) above shall be made only if the General Partner in good faith determines that such adjustments are necessary or appropriate to reflect the relative economic interests of the Partners. The Carrying Value of any asset distributed to any Partner shall be adjusted immediately prior to such distribution to equal its fair market value. The Carrying Value of any asset contributed by a Partner to the Partnership will be the fair market value of the asset as of the date of its contribution thereto. In the case of any asset that has a Carrying Value that differs from its adjusted tax basis, Carrying Value shall be adjusted by the amount of depreciation calculated for purposes of the definition of “Profits and Losses” rather than the amount of depreciation determined for U.S. Federal income tax purposes.

“ Cause ” means the occurrence or existence of any of the following with respect to an EPI Limited Partner:

(a) breach of (after giving effect to any applicable grace periods) any of such Partner’s or any of his or her Family Related Limited Partners’ material obligations under (i) this Agreement (including such

 

3

Partner’s or any of his or her Family Related Limited Partners’ obligations pursuant to Sections 5.1(a), 10.3 and 10.11 (without giving effect to any modification thereof pursuant to Section 10.12)), (ii) any Fund Partnership Agreement (including such Partner’s or any of his or her Family Related Limited Partners’ obligations to make capital contributions pursuant to the terms of such Fund Partnership Agreement) or (iii) the stockholders agreement, certificate of incorporation, by-laws, limited liability company agreement, limited partnership agreement or equivalent documents of EPI, the Investment Advisor, the Investment Manager or any of their respective Affiliates;

(b) the conviction of, or plea of guilty or nolo contendere by, such Partner in respect of any felony;

(c) the perpetration by such Partner of fraud against the Partnership, the Investment Advisor, the Investment Manager, the Fund, EPI, any Portfolio Company or any of their respective Affiliates;

(d) the willful and continued failure by such Partner to substantially perform such Partner’s duties with EPI, the Investment Advisor, the Investment Manager, the Partnership or any of their respective Affiliates in such Partner’s position on a full-time basis (other than any such failure resulting from such Partner’s death or Permanent Disability), provided that an act, or a failure to act, on such Partner’s part shall be deemed “willful” only if done, or omitted to be done, by him not in good faith or without a reasonable belief that such Partner’s action or omission was in or not opposed to the best interests of EPI, the Investment Advisor, the Investment Manager, the Partnership and the Fund;

(e) any willful misconduct which could have, or could reasonably be expected to have, an adverse effect in any material respect on (i) such Partner’s ability to function as an employee or consultant of EPI, the Investment Advisor, the Investment Manager or any of their respective Affiliates, taking into account the services required of such Partner or (ii) the business and/or reputation of the Partnership, the Fund, EPI, the Investment Advisor, the Investment Manager or any of their respective Affiliates; or

(f) any conduct by such Partner constituting “Disabling Conduct” as defined in any Fund Partnership Agreement.

All determinations of Cause shall be made by the General Partner.

“ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time.

“ Covered Person ” has the meaning set forth in Section 3.2(a).

 

4

“ Creditable Foreign Tax ” means a foreign tax paid or accrued for United States federal income tax purposes by the Partnership, in either case to the extent that such tax is eligible for credit under Section 901(a) of the Code. A foreign tax is a creditable foreign tax for these purposes without regard to whether a partner receiving an allocation of such foreign tax elects to claim a credit for such amount. This definition is intended to be consistent with the definition of “creditable foreign tax” in temporary treasury Regulations Section 1.704-1T(b)(4)(xi)(b), and shall be interpreted consistently therewith.

“ Declaration of Limited Partnership ” means the Declaration of Limited Partnership of the Partnership which was executed by the General Partner and filled in the office of the Registrar under the Act on September 24, 2007, and all subsequent amendments thereto and restatements thereof.

“ Default Interest Rate ” shall mean the lower of (i) the sum of (a) the rate of interest per annum publicly announced from time to time by J.P. Morgan Chase as its prime rate and (b) 5%, and (ii) the highest rate of interest permitted under applicable law.

“ Defaulted Amount ” has the meaning set forth in Section 4.5(c)(ii).

“ Defaulting Partner ” has the meaning set forth in Section 5.1(b).

“ Effective Date ” has the meaning set forth in the preamble to this Agreement.

“ EPI ” means Evercore Partners Inc.

“ EPI Limited Partner ” means each of William O. Hiltz, Pedro Aspe, and Kathleen G. Reiland and any other individual admitted to the Partnership by the General Partner as an EPI Limited Partner in accordance with the provisions of this Agreement, in each case for so long as such person remains an EPI Limited Partner hereunder. Once an EPI Limited Partner ceases to be employed by or, in the case of an Operating Executive, a consultant to, any of EPI, the Investment Adviser, the Investment Manager or any of their respective Affiliates, such EPI Limited Partner shall automatically cease to be a EPI Limited Partner and shall become a Special Limited Partner.

“ Estimated Income Tax Amount ” has the meaning set forth in Section 4.5(e).

“ Excess Income Tax Amount ” has the meaning set forth in Section 4.5(e).

“ Fair Market Value ” means as to any asset, unless otherwise specified, the fair market value of such asset determined on a basis consistent with the Fund Partnership Agreement and otherwise as reasonably determined by the General Partner.

 

5

“ Family Related Limited Partner ” means, with respect to any EPI Limited Partner, any Partner who is a member of such EPI Limited Partner’s family or any Partner which is a trust, partnership or other entity formed by such EPI Limited Partner for investment by or for the benefit of members of such EPI Limited Partner’s family, such EPI Limited Partner’s other relatives or charitable organizations.

“ Fiscal Year ” has the meaning set forth in Section 6.3.

“ Fund ” means Evercore Mexico Capital Partners II L.P., an Ontario limited partnership, any Parallel Investment Vehicle (as defined in the Fund Partnership Agreements) and, where the context so requires, any Alternative Investment Vehicle formed pursuant to the Fund Partnership Agreement.

“ Fund Investment ” means an investment by the Fund.

“ Fund Partnership Agreement ” means the amended and restated agreement of limited partnership of the Fund, dated as of December 18, 2007, as may be further amended or modified from time to time.

“ Funded Private Equity Investments ” as of any date of determination means Private Equity Investments the capital contributions for which were made prior to such date.

“ General Partner ” means Evercore Mexico GP Holdings LLC, the general partner of the partnership, and any successors in such capacity.

“ General Partner Capital Commitment ” means the aggregate capital commitment of the Partnership to the Fund, as such amount may increase from time to time.

“ Give-Back Amount ” has the meaning set forth in Section 4.5(c)(i)(A).

“ Give-Back Obligation ” means any amount the Partnership is required to return to the Fund pursuant to Section 7.3 of the Fund Partnership Agreement.

“ GP Holdings ” means Evercore GP Holdings L.L.C.

“ Holdback Account ” has the meaning set forth in Section 4.5(a).

“ Holdback Partner ” has the meaning set forth in Section 4.5(e).

“ Holdback Percentage ” of a Partner means the designated percentage of the Carried Interest Proceeds allocated to such Partner, which shall initially be as set forth in such Partner’s Terms Letter.

 

6

“ Income Tax Amount ” means, with respect to Carried Interest Proceeds distributed or deemed distributed to a Partner (including amounts credited to such Partner’s sub-accounts in the Holdback Account pursuant to Section 4.5(a)), the amount of income tax assumed to be imposed on allocations of taxable income related to such Carried Interest Proceeds (including taxes that would be borne by a Partner assuming an immediate sale of securities initially received in kind pursuant to Section 7.4(b) of the Fund Partnership Agreement), with such income tax calculated by assuming that (i) the tax rate imposed is the Assumed Income Tax Rate in effect in the Fiscal Year of any such allocation and (ii) capital losses from the disposition of a Private Equity Investment allocated to such Partner relating to Carried Interest Proceeds (“Capital Losses”) shall reduce capital gains from the Disposition of a Private Equity Investment allocated to such Partner relating to Carried Interest Proceeds (“Capital Gains”) only to the extent of the amount of Capital Gains recognized in the Fiscal Year of the recognition of a Capital Loss or a subsequent Fiscal Year (only to the extent that Capital Gain may properly offset such Capital Loss), reduced by the amount of any tax benefit actually realized by such Partner (or, if such Partner is treated as a partnership for federal income tax purposes, its direct or indirect owners) in the year in which the Partnership is required to make a payment of a Give-Back Amount, which tax benefit is attributable solely to the making of such payment (or adjustment) and which benefit shall be determined assuming the only items of income, gain, loss, deduction or credit of such Partner (or, if such Partner is treated as a partnership for federal income tax purposes, its direct or indirect owners) are attributable to such Partner’s investment in the Partnership.

“ Initial Closing Date ” means the date established by the General Partner for the admission to the Partnership of the initial Limited Partners other than the Organizational Limited Partner.

“ Interest ” means the entire partnership interest owned by a Partner in the Partnership at any particular time, including the right of such Partner to any and all benefits to which a Partner may be entitled as provided in this Agreement, together with the obligations of such Partner to comply with all the terms and provisions of this Agreement.

“ Investment Advisor ” means Administradora Evercore, S.C., a Mexican sociedad civil , or any successor thereto as investment advisor to the Fund.

“ Investment Advisory Agreement ” means the Investment Advisory Agreement, dated as of December 18, 2007, between the Partnership, the Investment Advisor and the Investment Manager as amended or modified from time to time.

“ Investment Management Agreement ” means the Investment Management Agreement dated as of the date hereof between the Partnership, as general partner on behalf of the Fund, and the Investment Manager.

“ Investment Manager ” means Evercore Mexico Management II, L.L.C., a limited liability company organized under the laws of the State of Delaware.

 

7

“ Issuance Items ” has the meaning set forth in Section 5.4(g).

“ Limited Partner ” means, at any time, any Person who is at such time a limited partner of the Partnership and shown as such on the books and records of the Partnership (other than the Organizational Limited Partner), including EPI Limited Partners, Family Related Limited Partners and Special Limited Partners and shall not include any Person who is a Canadian-Resident Person.

“ Nonrecourse Deductions ” has the meaning set forth in Treasury Regulations Section 1.704-2(b). The amount of Nonrecourse Deductions of the Partnership for a fiscal year equals the net increase, if any, in the amount of Partnership Minimum Gain of the Partnership during that fiscal year, determined according to the provisions of Treasury Regulations Section 1.704-2(c).

“ Operating Executives ” means any person admitted to the Partnership as such in accordance with the provisions of this Agreement.

“ Operating Reserve ” means such amount as is determined by the General Partner in good faith to be necessary or prudent for the Partnership to maintain in cash or Temporary Investments in order to satisfy the Partnership’s accrued expenses and otherwise to meet the operational needs of the Partnership’s business.

“ Organizational Limited Partner ” means Evercore Mexico Management II, L.L.C., a limited liability company organized under the laws of the State of Delaware.

“ Parallel Investment Vehicle ” means any investment vehicle organized to make all or any category of investments in Portfolio Companies in parallel with the Partnership, as described in Section 5.4 of the Fund Partnership Agreement.

“ Participation Agreement ” means the Participation Agreement among the EPI Limited Partners and their Family Related Limited Partners relating to the allocation of certain distributions from the Partnership and certain of its Affiliates into common pools, as amended from time to time.

“ Partner ” means each of the persons listed as a Partner in Annex A hereto and any person admitted to the Partnership as an additional or substituted partner of the Partnership in accordance with the provisions of this Agreement and the Act.

“ Partner Nonrecourse Debt Minimum Gain ” means an amount with respect to each partner nonrecourse debt (as defined in Treasury Regulations Section 1.704-2(b)(4)) equal to the Partnership Minimum Gain that would result if such partner nonrecourse debt were treated as a nonrecourse liability (as defined in Treasury Regulations Section 1.752-1(a)(2)) determined in accordance with Treasury Regulations Section 1.704-2(i)(3).

 

8

“ Partner Nonrecourse Deductions ” has the meaning ascribed to the term “partner nonrecourse deductions” set forth in Treasury Regulations Section 1.704-2(i)(2).

“ Partnership ” means Evercore Mexico Partners II, L.P., an Ontario limited partnership.

“ Partnership Minimum Gain ” has the meaning ascribed to the term as set forth in Treasury Regulations Section 1.704-2(b)(2) and 1.704-2(d).

“ Permanent Disability ” with respect to any person means a reasonable determination by the General Partner that such person has been unable to perform the important duties of his or her employment or, in the case of an Operating Executive, consultancy with EPI, the Investment Advisor, the Investment Manager or any of their respective Affiliates on a full-time basis for a period of 180 consecutive days and is reasonably likely to continue to be unable to do so, because of (a) an accidental bodily loss or harm or (b) an illness or disease. For this purpose, “full-time” shall mean at least 30 hours per week. All determinations of Permanent Disability shall be made by the General Partner .

“ Person ” means any individual, partnership, corporation, trust or other entity.

“ Portfolio Company ” has the meaning set forth in the Fund Partnership Agreement.

“ Private Equity Investment ” has the meaning set forth in the Fund Partnership Agreement.

“ Proceeding ” has the meaning set forth in the Fund Partnership Agreement.

“ Process Agent ” has the meaning set forth in Section 2.1(b).

“ Profits ” and “ Losses ” means, for each Fiscal Year or other period, the taxable income or loss of the Partnership, or particular items thereof, determined in accordance with the accounting method used by the Partnership for federal income tax purposes with the following adjustments: (a) all items of income, gain, loss or deduction allocated pursuant to Section 5.4 shall not be taken into account in computing such taxable income or loss; (b) any income of the Partnership that is exempt from federal income taxation and not otherwise taken into account in computing Profits and Losses shall be added to such taxable income or loss; (c) if the Carrying Value of any asset differs from its adjusted tax basis for federal income tax purposes, any gain or loss resulting from a disposition of such asset shall be calculated with reference to such Carrying Value; (d) upon an adjustment to the Carrying Value (other than an adjustment in respect of depreciation) of any asset, pursuant to the definition of Carrying Value, the amount of the adjustment shall be included as gain or loss in computing such taxable income or loss; (e) if

 

9

the Carrying Value of any asset differs from its adjusted tax basis for federal income tax purposes, the amount of depreciation, amortization or cost recovery deductions with respect to such asset for purposes of determining Profits and Losses, if any, shall be an amount which bears the same ratio to such Carrying Value as the federal income tax depreciation, amortization or other cost recovery deductions bears to such adjusted tax basis (provided that if the federal income tax depreciation, amortization or other cost recovery deduction is zero, the General Partner may use any reasonable method for purposes of determining depreciation, amortization or other cost recovery deductions in calculating Profits and Losses); and (f) except for items in (a) above, any expenditures of the Partnership not deductible in computing taxable income or loss, not properly capitalizable and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be treated as deductible items.

“ Profit Sharing Percentage ” of a Partner means the percentage interest of such Partner in Carried Interest Proceeds to be distributed to the Partners from the Carried Interest earned by the Partnership from the Fund. The Profit Sharing Percentage of a Partner initially shall be as set forth in the Terms Letter between the Partnership and such Partner.

“ Recalculated Income Tax Amount ” has the meaning set forth in Section 4.5(e).

“ Record of Limited Partners ” means the current record of the Limited Partners maintained by the General Partner and kept at the Partnership’s office in Ontario, stating for each Limited Partner, its name, address, amount of Capital Commitment and any other information required by the Act.

“ Registrar ” means a public servant of the Ontario Ministry of Public Services.

“ Repurchased Capital Contributions ” means, with respect to any Partner, (i) an amount equal to the portion of the aggregate capital contributions made by such Partner to the Partnership, on or prior to the Termination Date, in respect of a particular Private Equity Investment that relates to the Repurchase Percentage of such Partner’s Profit Sharing Percentage, net of (ii) any Capital Proceeds received by such Partner in respect of such capital contributions referred to in the foregoing clause (i) on or prior to the Termination Date.

“ Repurchase Notice ” has the meaning set forth in Section 4.4(c).

“ Repurchase Percentage ” means, with respect to any Partner, the relevant percentage set forth in this Agreement and such Partner’s Terms Letter.

“ Repurchase Price ” means, with respect to any Partner, the aggregate amount of all portions of the Repurchase Price payable with respect to all Unfunded Private Equity Investments and Funded Private Equity Investments; the portion of the Repurchase Price payable with respect to a particular Private Equity Investment shall mean:

(a) if the aggregate amount of the Capital Proceeds received by the Partnership in respect of such Repurchased Capital Contributions after the Termination Date (if any) exceeds the Repurchased Capital Contributions, then

 

10

(i) the Repurchased Capital Contributions, plus

(ii) the amount by which the aggregate amount of the Capital Proceeds received by the Partnership in respect of such Repurchased Capital Contributions after the Termination Date (if any) exceeds the Repurchased Capital Contributions, minus

(iii) the aggregate amount of any portion of the Repurchase Price previously paid to such Partner after the Termination Date with respect to such Private Equity Investment.

(b) if the aggregate amount of the Capital Proceeds received by the Partnership in respect of such Repurchased Capital Contributions after the Termination Date (if any) is less than or equal to the Repurchased Capital Contributions, then

(i) the Repurchased Capital Contributions, minus

(ii) the amount by which the Repurchased Capital Contributions exceeds the aggregate amount of the Capital Proceeds received by the Partnership in respect of such Repurchased Capital Contributions after the Termination Date (if any), minus

(iii) the aggregate amount of any portion of the Repurchase Price previously paid to such Partner after the Termination Date with respect to such Private Equity Investment.

“ Securities ” means any of the following, whether readily marketable or not: (a) capital stock, foreign securities, shares or units of beneficial interest in a trust, partnership interests, warrants, bonds, notes, debentures, whether subordinated, convertible or otherwise, no-load mutual funds, money market funds, commercial paper, certificates of deposit, bank debt, trade claims, obligations of the United States, any State thereof, any foreign country or political subdivision thereof and instrumentalities of any of them, bankers’ acceptances, trust receipts and other obligations, and evidences of indebtedness or other instruments commonly referred to as securities of whatever kind or nature of any person, corporation, government or entity whatsoever, (b) rights and options

 

11

relating thereto, and (c) options, futures contracts, options on futures contracts, forward contracts, “spot” transactions and swap arrangements involving securities indices or other indices, financial instruments, interest rates, currencies and commodities.

“ Securities Act ” has the meaning set forth in Section 10.9(c)(vii).

“ Special Limited Partner ” means any EPI Limited Partner who has ceased to be employed or, in the case of an Operating Executive, retained as a consultant by any of EPI, the Investment Advisor, the Investment Manager or any of their Respective Affiliates.

“ Tax Advances ” has the meaning set forth in Section 5.6.

“ Tax Matters Partner ” has the meaning set forth in Section 6.4.

“ Temporary Investments ” means (a) United States government and agency obligations maturing within three years, (b) commercial paper rated not lower than A 1 by Standard & Poor’s Corporation or P 1 by Moody’s Investor Services, Inc. with maturities of not more than nine (9) months, (c) interest bearing deposits in banks having one of the ratings referred to above, maturing within one year, (d) municipal bonds and other tax-exempt securities rated not lower than AA by Standard & Poor’s Corporation or Aa by Moody’s Investor Services, Inc. with maturities of not more than one year and (e) money market mutual funds the assets of which are reasonably believed by the General Partner to consist primarily of items described in one or more of the foregoing clauses (a), (b), (c) or (d), or (f) any other investments as the General Partner may determine.

“ Temporary Investment Proceeds ” has the meaning set forth in Section 4.1(c)(i).

“ Termination Date ” has the meaning set forth in Section 4.4(a).

“ Terms Letter ” means, with respect to any Partner, the letter agreement between the Partnership and such Partner setting forth, among other matters, (a) such Partner’s Profit Sharing Percentage applicable to Private Equity Investments, (b) such Partner’s Holdback Percentage, (c) the Repurchase Percentage of such Partner’s Profit Sharing Percentage following the termination of employment or, in the case of an Operative Executive, consultancy of such Partner (or in the case of a Family Related Limited Partner, its associated EPI Limited Partner) with EPI, the Investment Advisor, the Investment Manager and their respective Affiliates, or otherwise and (d) the conditions to such Partner’s post-employment Profit Sharing Percentage, if any.

“ Transfer ” means any assignment, sale, exchange, transfer, pledge, encumbrance, hypothecation or other disposition of all or any part of an Interest.

 

12

“ Treasury Regulations ” means the regulations promulgated by the U.S. Treasury Department under the Code, and unless the context otherwise specifies means the final regulations.

“ Unfunded Private Equity Investments ” means, as of any date of determination, any Private Equity Investments which the Fund will make in the future but for which capital contributions have not been made to the Fund as of such date.

“ Unpaid Capital Commitment ” means, with respect to any Partner as of any date, an amount equal to (a) the Capital Commitment of such Partner as of such date, minus (b) the aggregate amount of capital contributions made by such Partner to the Partnership on or prior to such date pursuant to Section 5.1(a)(i) or (ii), plus (c) any amounts of Capital Proceeds distributed to the Partner, other than a Partner whose Capital Commitment has been reduced to zero, to the extent that when such amounts were received by the Partnership, it increased the Partnership’s “Unfunded Capital Commitment” (as defined in the Fund Partnership Agreement) and plus or minus , as the case may be, (d) any adjustments to such Partner’s Unpaid Capital Commitment on or prior to such date pursuant to Section 5.1 (to the extent applicable).

SECTION 1.2 Terms Generally .

The definitions in Section 1.1 shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The term “person” includes individuals, partnerships, limited liability companies, joint ventures, corporations, trusts, governments (or agencies or political subdivisions thereof) and other associations and entities. Unless the context requires otherwise, the words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”.

ARTICLE II

General Provisions

SECTION 2.1 Formation .

(a) This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, and the federal laws of Canada applicable therein. In particular, the Partnership is formed pursuant to the Act, and the rights and liabilities of the Partners and the restrictions, limitations and prohibitions applicable to the Partners, shall be as provided therein, except as herein otherwise expressly provided. If, nevertheless, it shall be determined by a court of competent jurisdiction that any provision or wording of this Agreement shall be invalid or unenforceable under such Act or other applicable law, such invalidity or unenforceability shall not invalidate the entire Agreement. In that case, this Agreement shall be construed so as to limit any term or provision so as to make it enforceable or valid within the

 

13

requirements of the Act or other applicable law, and, in the event such term or provision cannot be so limited, this Agreement shall be construed to omit such invalid or unenforceable provisions.

(b) Each party hereto irrevocably submits to the exclusive jurisdiction of the courts of competent jurisdiction in the Province of Ontario in respect of any action or proceeding relating in any way to this Agreement. The parties shall not raise any objection to the venue of any proceedings in any such court, including the objection that the proceedings have been brought in an inconvenient forum. The General Partner irrevocably appoints Osler, Hoskin & Harcourt LLP (the “ Process Agent ”), with an office on the date of this Agreement at Box 50, 1 First Canadian Place, Toronto, Ontario, Canada M5X 1B8, as its agent to receive on behalf of it service of copies of the statement of claim and any other process which may be served in any such action or proceeding. Such service may be made by delivering a copy of such process to the General Partner in care of the Process Agent at the Process Agent’s most recent address in Toronto as set out herein, and the General Partner irrevocably authorizes and directs the Process Agent to accept such service on its behalf. A final judgment in any such action or proceeding may be enforced in other jurisdictions by suit on the judgment or in any other manner specified by law and shall not be re-litigated on the merits.

SECTION 2.2 Partners .

Annex A attached hereto contains the name and address of each Partner as of the Effective Date. The General Partner is authorized to revise Annex A from time to time to reflect the admission or withdrawal of a Partner in accordance with the terms of this Agreement and the Act and other modifications to or changes in the information set forth therein. As of the Effective Date, GP Holdings has been admitted as a Limited Partner with a Profit Sharing Percentage equal to 50% of the aggregate Profit Sharing Percentage.

SECTION 2.3 Name .

The Partnership shall conduct its activities under the name of “Evercore Mexico Partners II L.P.” The Partnership’s business may be conducted under any other name or names as the General Partner may determine, in accordance with the Act. The General Partner shall give prompt notice of any such name change to each Limited Partner.

SECTION 2.4 Liability of the Partners Generally .

(a) Except as provided in this Agreement and to the extent permitted by the Act, the General Partner shall have the liabilities of a general partner as provided in the Act.

(b) Except as expressly provided in this Agreement and the Act, no Limited Partner (or former Limited Partner) shall be obligated to make any contribution of capital to the Partnership or have any liability for the debts and obligations of the Partnership.

 

14

SECTION 2.5 Term .

The term of the Partnership commenced upon the filing of the Declaration of Limited Partnership in the office of the Registrar. The existence of the Partnership shall continue unless and until the Partnership is dissolved, wound up and terminated in accordance with Article VII. No Partner shall have the right, and each Partner hereby agrees not to, withdraw from the Partnership, nor to dissolve, terminate or liquidate, or to petition a court for the dissolution, termination or liquidation of the Partnership, in each case except as expressly provided in this Agreement or the Act; and, except with the consent of the General Partner in its sole and absolute discretion, no Partner at any time shall have the right to petition or to take any action to subject Partnership assets or any part thereof to the authority of any court or other governmental body in connection with any bankruptcy, insolvency, receivership or similar proceeding, except as permitted in the Act.

SECTION 2.6 Purpose; Powers .

(a) The purpose of the Partnership shall be, directly or indirectly through subsidiaries or Affiliates, (i) to serve as a general partner of the Fund and as a general partner or in a similar capacity for other investment partnerships formed pursuant to the Fund Partnership Agreement, perform the functions required of a general partner of the Fund and as a general partner or in a similar capacity for such other investment partnerships and make capital contributions thereto, (ii) to provide investment management services to other investment vehicles and accounts formed pursuant to the Fund Partnership Agreement, (iii) to engage in any other lawful business under the Act and applicable law that the General Partner determines the Partnership shall engage in and (iv) to do all things necessary or incidental thereto.

(b) In furtherance of its purposes, the Partnership shall have all powers necessary, suitable or convenient for the accomplishment of its purposes, alone or with others, including the following:

(i) to render investment and asset management services to the Fund and other persons;

(ii) to hold, receive, mortgage, pledge, transfer, exchange, otherwise dispose of, grant options with respect to and otherwise deal in and exercise all rights, powers, privileges and other incidents of ownership or possession with respect to all Securities and other property;

(iii) to invest and reinvest cash assets of the Partnership in any investments, including the Fund and Temporary Investments;

(iv) to have and maintain one or more offices outside Canada, or to the extent necessary to comply with the requirements of the Act, within the Province of Ontario and, in connection therewith, to rent or acquire office space, engage personnel and do such other acts and things as may be advisable or necessary in connection with the maintenance of such office or offices;

(v) to open, maintain and close bank accounts and draw checks and other orders for the payment of moneys and to open, maintain and close accounts with brokers, custodians and others;

 

15

(vi) to engage accountants, auditors, custodians, consultants, attorneys and any and all other agents and assistants, both professional and nonprofessional, including Partners and their Affiliates, and to compensate them as may be necessary or advisable; provided that the Partnership shall not have any paid employees;

(vii) to form or cause to be formed and to own the stock of one or more corporations, whether foreign or domestic, and to form or cause to be formed and to participate in partnerships and joint ventures, whether foreign or domestic;

(viii) to enter into, make and perform all contracts, agreements and other undertakings as may be deemed necessary or advisable or incident to carrying out its purposes;

(ix) to sue, prosecute, settle or compromise all claims against third parties, to compromise, settle or accept judgment of claims against the Partnership, and to execute all documents and make all representations, admissions and waivers in connection therewith;

(x) to borrow money from any person or to guarantee loans or other extensions of credit for any purpose;

(xi) to make loans and extend other forms of credit;

(xii) to distribute, subject to the terms of this Agreement and the Act, at any time and from time to time to Partners cash or investments or other property of the Partnership, or any combination thereof;

(xiii) to take such other actions necessary or incidental thereto as may be permitted under applicable law; and

(xiv) to enter into and perform any agency cross transaction in which EPI or any other Affiliate of the General Partner acts as broker for both the Partnership and a party on the other side of the transaction and any agency transaction in which the Partnership is a principal and in which any Affiliate of the General Partner acts as broker for the party on the other side of the transaction.

To the extent possible, the activities contemplated by this Section 2.6 shall be conducted outside of Canada.

SECTION 2.7 Principal Place of Business .

The Partnership shall maintain its principal place of business at, and its business shall be conducted from, c/o Evercore Partners Inc., 55 East 52nd Street, 43rd Floor, New York, NY 10055, USA, or such other place as the General Partner shall determine. The activities of the Partnership will generally be carried out from the principal business office of the General Partner and any other places as determined by the General Partner, subject to Section 3.1(e). The activities of the Partnership shall generally be carried out from the principal business office of the General Partner. The General Partner will promptly give written notice of any change of such address to the Limited Partners.

 

16

SECTION 2.8 Office .

The Partnership shall maintain an office in the Province of Ontario, Canada, and the name and address of such office in the Province of Ontario, Canada is, Osler, Hoskin & Harcourt LLP, 100 King Street West, Suite 6600, Toronto, Ontario, Canada M5X 1B8, or such other office location in Ontario as the General Partner shall determine.

SECTION 2.9 Admission of Limited Partners

(a) On the Initial Closing Date, upon the admission of Persons subscribing for Interests as Limited Partners to the Partnership, the Organizational Limited Partner shall withdraw from the Partnership and shall be entitled to receive the return of its capital contribution without interest or deduction.

(b) On the Initial Closing Date, each Person whose subscription for an Interest has been accepted by the General Partner shall, upon execution and delivery of the Terms Letters and this Agreement, become a Limited Partner and shall be shown as such on the books and records of the Partnership.

(c) The General Partner may in its discretion allow other Persons to be admitted as additional Limited Partners or allow any Partner to increase its Capital Commitment.

ARTICLE III

Management and Operation of the Partnership

SECTION 3.1 General Partner .

(a) The management, control and operation of the Partnership shall be vested exclusively in the General Partner. The General Partner shall have the sole power and authority on behalf of and in the name of the Partnership to carry out any and all of the objects and purposes and exercise any and all of the powers of the Partnership contemplated by Section 2.6 and to perform all acts which it may deem necessary or advisable in connection therewith. The General Partner shall not take any action that would subject any Limited Partner to liability for the debts and obligations of the Partnership. The Limited Partners shall have no part in the management, control or operation of the Partnership and shall have no authority or right to act on behalf of the Partnership in connection with any matter. No Limited Partner shall (i) execute any document that binds, or purports to bind, the Partnership or a Partner other than itself; or (ii) hold itself out as having the power or authority to bind the Partnership or a Partner other than itself. Except as otherwise provided herein or as required under the Act, the Limited Partners shall not have voting rights with respect to any Partnership matters.

(b) The Partners agree that all actions made or taken by the General Partner on behalf of the Partnership shall bind the Partnership, the Limited Partners and their respective successors, assigns and personal representatives. Persons dealing with the Partnership are entitled to rely conclusively upon the power and authority of the General Partner as herein set forth.

 

17

(c) The General Partner may delegate to any Person or Persons all or any of the powers, rights, privileges, duties and discretion vested in it in this Article III and such delegation may be made upon such terms and conditions as the General Partner shall determine; provided that no such delegation shall modify the obligations or liabilities of the General Partner as general partner of the Partnership under the Act and under this Agreement, or shall cause the Partnership to be deemed to be engaged in a trade or business in any jurisdiction for local income tax purposes; and provided further that no such delegation shall cause the Partnership to be deemed to be engaged in a trade or business in Canada for Canadian income tax purposes nor shall any delegation be made to a Canadian-Resident Person.

(d) To the fullest extent permitted by applicable law, the General Partner (or any other Affiliate of the General Partner) is hereby authorized to (i) purchase property from, sell property to, lend money or otherwise deal with any Affiliates, any Limited Partner, the Partnership, any of its portfolio companies or any Affiliates of any of the foregoing Persons, (ii) obtain services from any Partner or any Affiliate of any Partner and (iii) otherwise cause or permit the Partnership, its portfolio companies and Affiliates to enter into any such transaction.

(e) The General Partner agrees to use commercially reasonable best efforts to ensure that the Partnership is not engaged, or deemed engaged, in a trade or business in Canada for Canadian income tax purposes and is not otherwise subject to taxation on a net income basis in Canada.

SECTION 3.2 Exculpati