1
EXHIBIT 3.18.1
2
EXHIBIT 3.18.1
AGREEMENT OF LIMITED PARTNERSHIP OF
ORLANDO LICENSE LIMITED PARTNERSHIP
This Agreement of Limited Partnership ("Agreement") is entered into
and shall be effective as of the 10th day of March, 1993, by and between Xxxxxx
Enterprises, Inc., a Nevada Corporation, as the General Partner and Xxxxxx
Broadcasting of Orlando, Limited Partnership, as a Limited Partner, pursuant to
the provisions of the Florida Uniform Limited Partnership Act, on the following
terms and conditions:
ARTICLE I.
FORM AND INTERPRETATION
1. Definitions. The following capitalized terms, as
used in this Agreement and in the attached exhibits, which constitute a part of
this Agreement, have the meanings ascribed to them below and include the plural
as well as the singular number:
"Act" means the Florida Uniform Limited Partnership Act, as
amended, or any subsequent Florida law concerning partnerships that are enacted
in substitution for the Act.
"Adjusted Capital Account Deficit" means, with respect to
any Partner, the deficit balance, if any, in such Partner's Capital Account as
of the end of the relevant fiscal year, after giving effect to the following
adjustments:
(i) Credit to such Capital Account any amount which such
Partner is obligated to restore (pursuant to the terms of a
promissory note or otherwise) or is deemed to be obligated to restore
pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the provisions of Section 1.704-1(b)(2)(ii)(d) of the Regulations
and shall be interpreted consistently therewith.
"Affiliate" of a Partner means (1) another Partner of the
Partnership; (2) a legal or personal representative of any Partner; (3) the
Partner's lineal descendants and spouse (other than a spouse who is legally
separated from the Partner under a decree of divorce or separate maintenance);
(4) a trustee of a trust for the benefit of any Person referred to in clause
(1), (2)
3
or (3); (5) a Person, other than an individual, of which 80% or more of the
voting or equity interests is owned directly or indirectly by a Partner and/or
one or more of the Persons referred to in clauses (1) through (4); (6) a Person
owning 80% or more of the voting or equity interests of a Partner that is not
an individual; or (7) a Person other than an individual, 80% or more of the
voting or equity interests of which is owned by the same Person that owns 80%
or more of the voting or equity interests of a Partner that is not an
individual.
"Agreement" means this Limited Partnership Agreement as originally
executed and as subsequently amended or supplemented from time to time in
accordance with section 48.
"Assignment" means a sale, exchange, gift, pledge, transfer or
disposition of any kind whatsoever and, in the case of a Person that is not an
individual, it includes the sale, exchange, pledge, transfer or disposition of
a majority of either voting control or the equity interests in such Person.
"Bankruptcy" means taking advantage of any bankruptcy or insolvency
act (including the Bankruptcy Reform Act of 1978 or similar law, and also any
proceeding under state or local insolvency or debtor relief laws), or a final
adjudication of insolvency or an assignment of a major portion of a Person's
assets for the benefit of creditors.
"Capital Account" has the meaning set forth in section 10.
"Capital Contribution" means the total amount of cash, securities and
other property contributed by a Partner to the equity of the Partnership, or
agreed to be contributed by a Partner to the equity of the Partnership,
pursuant to section 9(a), and reduced by any return of capital to the Partner
within the meaning of section 9(c). Any reference in this Agreement to the
Capital Contribution of either a Partner or an assignee of a Partner shall
include the Capital Contribution of any prior Partner to whose Partnership
Interest the then existing Partner or assignee succeeded.
"Cash Flow" means the excess of cash derived by the Partnership from
all sources, including from capital contributions, loans, sales of securities
and other activities, (but excluding cash derived from the winding-up and
liquidation of the Partnership pursuant to section 32) over the sum of all cash
disbursements, including repayments of loans from Partners, loans to Partners
from the Partnership, and distributions to Partners pursuant to section 14(a)
or (b) (but excluding disbursements pursuant to section 14(c)), plus a
reasonable allowance for reserves for repairs, investments in Property
(including Marketable Securities), replacements, contingencies and anticipated
obligations (including
2
4
debt service, capital improvements and replacements to the extent not funded by
reserves) as reasonably determined by the Managing General Partner.
Notwithstanding the preceding sentence, in determining the reasonable allowance
for reserves, the Managing General Partner shall reduce such allowance to the
extent necessary to ensure that annual distributions of Cash Flow to each
Partner will be in an amount at least equal to the annual income tax liability
(exclusive of income tax liability resulting from a transaction pursuant to
section 14(b) or (c)) of each such Partner (determined assuming that the
maximum possible income tax rate is applicable) resulting from the allocation
to the Partner of his share of the Partnership's Taxable Income and Taxable
Loss.
"Code" means the Internal Revenue Code of 1986, as amended, or any
subsequent federal law concerning income taxes that is enacted in substitution
for the Code.
"General Partner" means any Person admitted as a general partner in
accordance with this Agreement.
"General Partnership Interest" means the Partnership Interest of a
General Partner, in his capacity as a General Partner.
"Limited Partner" means those Persons who are signatories to this
Agreement as limited partners; and all other Persons who shall be admitted to
the Partnership as limited partners.
"Majority in Interest", when used in regard to the degree of consent,
approval or agreement required among the Partners, means Partners whose
aggregate Capital Account balances constitute over 50% of the total aggregate
Capital Account balances of all owners of Partnership Interests then
outstanding.
"Managing General Partner" means the Person designated in this
Agreement as the general partner responsible for management of the affairs of
the Partnership and thereafter any Person which becomes a general partner
responsible for management of the affairs of the Partnership pursuant to this
Agreement, in the Person's capacity as a managing general partner of the
Partnership. Initially, the Managing General Partner shall be Xxxxxx
Enterprises, Inc.
"Marketable Securities" means securities, including stock, which are
traded on an established securities market, whether or not registered under the
Securities Act of 1933.
"Partner" means each Person which is a General Partner or a Limited
Partner.
3
5
"Partnership" means ORLANDO LICENSE LIMITED PARTNERSHIP, the Florida
limited partnership formed in accordance with the Act pursuant to this
Agreement.
"Partnership Interest" includes only a Partner's Capital Contribution
and right to receive his Percentage Interest and excludes Partnership Rights.
"Partnership Rights" excludes the Partnership Interest of a Partner,
and includes, in addition to other rights provided in this Agreement, the
rights provided to him by the Act except to the extent expressly modified by
this Agreement.
"Percentage Interest" means a Partner's percentage share (as
initially stated opposite such Partner's name on EXHIBIT A as amended from time
to time), of the Profits and Losses, Taxable Income or Taxable Loss, cash and
other distributions and liquidation proceeds of the Partnership all subject to
and interpreted in accordance with the terms of this Agreement. The Percentage
Interests of Partners shall be proportionate to the Capital Accounts of the
Partnership at all times so that, for example, if a Partner's Capital Account
is 100 and the aggregate of all Capital Accounts is 1000, the Partner's
Percentage Interest in the Partnership is 10%. In the event of a change among
the Partners in the Percentage Interests in the Partnership during the year,
the Partnership shall use a closing-of-the-books method with respect to such
change or changes in Percentage Interests in computing a Partner's share of
Profits and Losses, Taxable Income and Taxable Losses, and entitlement to
distributions during such year.
"Person" means any individual and any general or limited partnership,
corporation, estate, joint venture, trust, business trust, cooperative,
association or other organization or entity.
"Profits and Losses" means the annual net income or loss of the
Partnership determined on a generally accepted accounting principles basis, as
disclosed on the annual financial statements of the Partnership.
"Property" means any real, personal, tangible or intangible property
contributed by a Partner to the equity of the Partnership or otherwise acquired
by the Partnership.
"Pro Rata" means in the proportion that the Percentage Interest of
each Partner bears to the total Percentage Interests of all the Partners.
"Retirement" means the death, Bankruptcy, adjudication of
incompetency as determined by a court of appropriate jurisdiction, dissolution
and liquidation or termination of existence, merger or consolidation (except as
provided in
4
6
section 29) of a Partner, or the sale, lease or other disposition of all or
substantially all the property of a Partner (except as provided in section 29).
"Taxable Income or Taxable Loss" means the net income or loss of the
Partnership for federal income tax purposes, as determined at the close of the
Partnership's fiscal year by the accountants employed by the Partnership to
prepare its income tax returns.
2. Captions and Certain Terms. The titles and captions
preceding the text of the articles and sections of this Agreement are solely
for convenience of reference and neither constitute a part of this Agreement
nor affect its meaning, interpretation, or effect. The words "hereby,"
"herein," "hereof," "hereto," "hereunder," and terms of similar import refer to
this Agreement as a whole and not to any particular article, section,
subsection or other part of this Agreement.
3. Severability. If any article, section or other provision of
this Agreement, or its application, is held to be invalid, illegal or
unenforceable in any respect or for any reason, the remainder of this Agreement
and the application of such article, section or other provision to a person or
circumstance with respect to which it is valid, legal and enforceable is not
affected.
4. Limitation of Grant. Nothing in this Agreement, whether
express or implied, is intended or may be construed to confer upon, or to grant
to, any creditor or any other Person (other than the Partners and their legal
and personal representatives, heirs, successors and permitted assignees) any
right, remedy or claim under or because of this Agreement or any covenant,
condition or stipulation of it.
ARTICLE II
ORGANIZATION OF PARTNERSHIP
5. Formation, Name, Office and Registered Agent. The
Partnership is organized as of the date of this Agreement and the signatories
to this Agreement constitute the members of this partnership under the Act as
of the date hereof. The rights and obligations of the Partners are determined
by the Act, except as otherwise expressly provided in this Agreement. The name
of the Partnership is "ORLANDO LICENSE LIMITED PARTNERSHIP." The
recordkeeping office of the Partnership is located at 00000 X.X. Xxxxxxx 00
Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000. The principal business office of the
Partnership is located at 00 Xxxx Xxxxxxx Xxxxxx, Xxxx, Xxxxxx 00000. The
Managing General Partner may change the name of the Partnership or the location
of its principal
5
7
business office at any time and from time to time by giving written notice of
such change to each Partner.
6. Term of Partnership. The term of the Partnership
shall continue until December 31, 2066, unless the Partnership is earlier
dissolved and terminated under this Agreement.
7. Purposes of Partnership; Authorized Acts.
A. (a) Purposes of the partnership are to
(i) acquire, operate, manage and perform all matters
necessary and attendant to the operation of one or
more radio stations in Florida,
(ii) invest in, own, sell, acquire, manage and exercise
the voting rights associated with Marketable
Securities,
(iii) acquire, hold, sell, own, improve, develop or lease
other types of real and personal property, and
(iv) engage in any other lawful activity for profit
approved by an affirmative vote of a Majority in
Interest.
(i) Notwithstanding Section 7, unless unanimously approved by
the Partners, the Partnership shall not engage in any
activity(ies) which would result, based upon opinion of tax
counsel, in the characterization of the Partnership as an
investment company as that term is used in Section 721(b) or
any successor provision of the Code.
B. In furtherance of its purposes, but subject to every other provision of
this Agreement, the Partnership is authorized to do the following:
(a) acquire by purchase, lease or otherwise,
any real or personal, tangible or intangible property that may be necessary,
convenient or incidental to the accomplishment of the purposes of the
Partnership;
(b) construct, operate, maintain, finance,
improve, own, sell, convey, exchange, assign, mortgage or lease any property
(or a part thereof) as may be necessary, convenient or incidental to the
accomplishment of the purposes of the Partnership;
(c) borrow money and issue evidences of
indebtedness in furtherance of any purpose of the Partnership and secure the
same by a mortgage, pledge, security interest or other
6
8
liens on the property, any part thereof, any interest therein or on any
improvements thereto;
(d) prepay, in whole or in part, refinance,
increase, renew, modify or extend any indebtedness of the Partnership and, in
connection therewith, extend, renew or modify any mortgage, pledge, security
interest or other lien affecting any property;
(e) invest and reinvest the assets of the
Partnership in, and purchase, acquire, hold, sell, transfer and exchange
securities of all kinds;
(f) lend money to Partners;
(g) exercise the voting rights associated with
property owned by the Partnership; and
(h) enter into any activity and perform and
carry out any contract in connection with, or necessary or incidental to, the
accomplishment of the purposes of the Partnership.
C. Notwithstanding any other provision of this Agreement, the
Partnership shall not transfer any Federal Communications Commission ("FCC")
licenses it may hold at any time to any party except in accordance with the
rules and policies of the FCC, and unless substantially all the operating
assets of the associated station in connection with which a particular license
is used, or control of the entity that holds such assets, is simultaneously
transferred to such party.
8. Co-Ownership of Partnership Interests. Any consent
required of a Partner shall require the action or vote of each Person (or in
such other manner as such Persons have designated in writing to the
Partnership) having an interest in such Partnership Interest, with a majority
approval needed for consent. On the death of a co-owner of a Partnership
Interest held in either joint tenancy with right of survivorship or tenancy by
the entirety, the Partnership Interest is owned solely by the survivor as a
Partner, and not as an assignee. The Partnership need not (although it may)
recognize the death of a co-owner of a Partnership Interest until the Managing
General Partner receives notice of the death. A co-owner of a Partnership
Interest may sever the tenancy by giving to the Managing General Partner notice
to that effect, and signed by the co-owner requesting the severance in the case
of a joint tenancy, and by both co-owners in the case of a tenancy by the
entirety. Upon receipt of the notice and the certificate evidencing the
Partnership Interest owned by the co-owners, the Managing General Partner shall
cause the Partnership Interest to be allocated as directed by the co-owners and
shall indicate on the Partnership records such allocation. In absence of joint
direction, the interests shall be allocated between the owners as
7
9
the severed ownership interests would be valued for federal estate tax
purposes.
ARTICLE III
PARTNERSHIP CAPITAL
9. Capital Contributions.
(a) Upon executing this Agreement, each Partner shall
make or has made a Capital Contribution in the amount and of the type, and
initially shall have a Percentage Interest equal to the percentage, set forth
opposite his name on EXHIBIT A. Partners may make (but Limited Partners are not
required to make) additional Capital Contributions at such time and in such
amount as they in their sole discretion shall determine but only if the
Managing General Partner and a Majority in Interest consent to such additional
Capital Contributions. Upon the assignment of any Partnership Interest, the
making of an additional Capital Contribution or any return of a Capital
Contribution, or any substitution of a Partner, EXHIBIT A shall be amended to
accurately reflect the name, address, Capital Contribution and Percentage
Interest of each Partner.
(b) Notwithstanding (a) above, no Capital Contributions
shall be made or permitted by any Partner which would result, directly or
indirectly, in the Partnership being treated as an investment company under
section 721(b) of the Code, and any such attempted Capital Contribution shall
be void ab initio. The Managing General Partner shall withhold its consent to
the making of an additional Capital Contribution, unless it has satisfied
itself (by seeking advice of legal counsel or otherwise) that the making of the
additional Capital Contribution will not result, directly or indirectly, in the
Partnership being treated as an investment company under section 721(b) of the
Code.
(c) A Partner shall not receive from the Managing
General Partner or out of Partnership Property, and the Managing General
Partner and the Partnership shall not return to a Partner, any part of his
Capital Contribution, except as set forth in Articles VIII and IX of this
Agreement and such distribution is determined to be a return of a Partner's
Capital Contribution, and then only if all liabilities of the Partnership,
except liabilities to the Partners on account of their Capital Contributions,
have been paid or there remains property of the Partnership sufficient to pay
them. The Partnership shall not pay interest on Capital Contributions, and a
Partner may demand and receive only cash in return for his Capital
Contribution, except to the extent provided for in Articles VIII and IX of this
Agreement or unless the Liquidator (as defined in section 32) decides to
distribute Partnership property in kind upon the dissolution, winding-up, and
8
10
termination of the Partnership, or unless the distribution of property to a
Partner is unanimously approved by the Partners. Each Partner, by signing this
Agreement or a counterpart of it, consents to all distributions authorized by
this Agreement and releases all other Partners from all liability to both him
and the Partnership for all distributions made in accordance with this
Agreement.
(d) Any payments made by the Limited Partner as a guarantor
of obligations of the Partnership shall be treated as additional Capital
Contributions to the Partnership.
(e) Notwithstanding any provision in this Agreement to the
contrary, if any Partner's Capital Account has a deficit balance ("Deficit
Capital Account Balance") upon liquidation of the Partnership (after giving
effect to all contributions, distributions, and allocations for all taxable
years, including the year in which such liquidation occurs), such Partner shall
contribute to the Capital of the Partnership the amount necessary to restore
such deficit balance to zero in accordance with Regulations Section
1.704-1(b)(2)(ii)(d).
10. Capital Account.
(a) The Managing General Partner shall establish and
maintain a Capital Account for each Partner in the Partnership's books of
account. Capital Accounts shall be maintained and adjusted in accordance with
generally accepted accounting principles. Consistent with these capital
account maintenance rules, the Managing General Partner shall credit to each
Partner's Capital Account the amounts of the Partner's Capital Contributions
and any Profits allocated to the Partner. The Managing General Partner shall
charge to or deduct from each Partner's Capital Account the amounts of all
distributions (in cash or other property) to the Partner and any Losses
allocated to the Partner. If any interest in the Partnership is transferred in
accordance with the terms of this Agreement, the transferee shall succeed to
the Capital Account of the transferror to the extent it relates to the
transferred interest.
(b) The provisions of this section and the other
provisions of this Agreement pertaining to the maintenance of Capital Accounts
are intended to comply with Treasury Regulation Section 1.704-1(b) (or any
successor provision thereto), and shall be interpreted and applied in a manner
consistent with such Regulations. In the event the Managing General Partner
determines that it is prudent to modify the manner in which the Capital
Accounts are computed in order to comply with such Regulations, provided that
it is not likely to have a material effect on the amounts distributable to any
Partner without such Partner's consent and upon receipt of an opinion of tax
counsel to the Partnership concluding that such modification will be given
effect for federal
9
11
income tax purposes, the Managing General Partner may make such modification.
(c) The Managing General Partner shall revalue the
Partnership's property (based on its fair market value as of the moment
immediately preceding the relevant event) and shall adjust Capital Accounts to
take into account any resulting Profit or Loss (determined as if the
Partnership sold all its property for cash equal to the property's fair market
value) upon the occurrence of either of the following events: (1) the making by
any Partner of any non-Pro Rata additional Capital Contribution, (2) the
partial or complete withdrawal of a Partner's Partnership Interest, or (3) the
admission of a Partner.
11. Expenses Paid by Partners. Any Partnership expense
reasonably paid by any Partner on behalf of the Partnership is an indebtedness
of the Partnership to the Partner and does not increase the Partner's
Partnership Interest or Percentage Interest. The Partnership shall reimburse
the Partner as soon as practicable and may pay interest on the indebtedness.
12. Loans by Partners. The Managing General Partner may borrow
money on behalf of the Partnership from any Partner in such amounts and for
such purposes as it considers necessary, convenient or incidental to the
accomplishment of the purposes of the Partnership. Each loan to the
Partnership by a Partner (excluding reimbursable expenses) shall be evidenced
by a promissory note or similar instrument of the Partnership, may be secured
by a lien on the Property, may bear interest at a rate determined by agreement
between such Partner and the Managing General Partner and may be subject to
such other terms and conditions as are agreed to by such Partner and the
Managing General Partner. The Partnership may prepay each loan from a Partner
in whole or in part, at any time and from time to time, without premium or
penalty.
ARTICLE IV
PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS
13. Allocations
(a) Allocation of Profits and Losses.
(1) Profits and Losses of the Partnership shall
be allocated Pro Rata among the Partners.
(2) Profits and Losses of the Partnership shall
be determined for each fiscal year of the Partnership in accordance with the
method of accounting required or permitted to be used for federal income tax
purposes, with such exceptions thereto as are set forth in this Agreement, and
otherwise in
10
12
accordance with generally accepted accounting principles applied in a
consistent manner.
(b) Allocation of Taxable Income and Taxable Loss.
(1) Except as otherwise provided in this
section 13(b), allocations of tax items among the Partners shall be consistent
with corresponding book (Profits and Losses) items (if any). For tax purposes,
Profits and Losses, or any item thereof, shall be appropriately adjusted to
reflect Taxable Income and Taxable Loss, or any item thereof, as determined
under the Code and shall be allocated among the Partners in such a manner as to
comply with the provisions of the Code and Regulations thereunder (including,
if necessary, the "minimum gain chargeback provisions" of the Regulations under
Section 704 of the Code). For example, any gain or loss recognized by the
Partnership with respect to property contributed to the Partnership by a
Partner shall be shared among the Partners so as to take account of the
variation, if any, between the basis of the property to the Partnership and its
fair market value at the time of contribution or revaluation, whichever is
applicable, so as to comply with the requirements of Section 704 of the Code.
Thus, for example, if a Partner contributes property to the Partnership whose
agreed fair market value exceeds its adjusted basis in the hands of the
contributing Partner ("built-in gain"), and there have been no events giving
rise to a revaluation, built-in gain with respect to such contributed property
shall first be allocated to such contributing Partner when the Partnership
recognizes gain upon a disposition of such contributed property, but not in an
amount in excess of such built-in gain; the remaining balance of such
recognized gain, if any, shall be allocated among the Partners as set forth
herein. The allocation of built-in gain to a contributing Partner shall not
increase such Partner's Capital Account, because such gain was already taken
into account when the built-in gain property was contributed to the
Partnership. A Partner who contributes property other than cash shall provide
the Managing General Partner with information necessary to verify the
contributing Partner's adjusted tax basis in the items of property contributed
by him to the Partnership.
(2) Generally, except as provided in section
13(b)(i), Taxable Income and Taxable Loss (and each such income and loss item)
shall be allocated Pro Rata among the Partners. In the event, however, that
non- Pro Rata distributions of property are made to a Partner or the net
proceeds from the sale of property are distributed non-Pro Rata to a Partner,
Taxable Income and Taxable Loss derived from such distributions or sales shall
be allocated 100% to such Partner, subject only to such modifications as are
necessary to comply with Section 704 of the Code.
11
13
(c) Losses. The Losses allocated pursuant to Sections
13(a) and 13(b) hereof shall not exceed the maximum amount of Losses that can
be so allocated without causing any Partner who is not a General Partner to
have an Adjusted Capital Account Deficit at the end of any fiscal year. In the
event some but not all of the Partners who are not General Partners would have
Adjusted Capital Account Deficits as a consequence of an allocation of Losses
pursuant to Section 13(a) or Section 13(b), the limitation set forth in this
Section 13(c) shall be applied on a Partner by Partner basis so as to allocate
the maximum permissible Loss to each Partner who is not a General Partner under
Section 1.704-1(b)(2)(ii)(d) of the Regulations. All Losses in excess of the
limitation set forth in this Section 13(c) shall be allocated to the General
Partner.
(d) Special Allocations. The following special
allocations shall be made in the following order:
(1) Qualified Income Offset. In the event any Partner who is
not a General Partner unexpectedly receives any adjustments, allocations, or
distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), 1.704-
1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6), items of Partnership income and
gain shall be specially allocated to each such Partner in an amount and manner
sufficient to eliminate, to the extent required by the Regulations, the
Adjusted Capital Account Deficit of such Partner as quickly as possible,
provided that an allocation pursuant to this Section 13(d)(1) shall be made if
and only to the extent that such Partner would have an Adjusted Capital Account
Deficit after all other allocations provided for in this Section 13 have been
tentatively made as if this Section 13(d)(1) were not in the Agreement.
(2) Gross Income Allocation. In the event any Partner who is
not a General Partner has a deficit Capital Account at the end of any
Partnership fiscal year that is in excess of the sum of (i) the amount such
Partner is obligated to restore (pursuant to the terms of a promissory note or
otherwise), and (ii) the amount such Partner is deemed to be obligated to
restore pursuant to the penultimate sentences of Regulations Sections
1.704-2(g)(1) and 1.704-2(i)(5), each such Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible, provided that an allocation pursuant to this Section
13(d)(2) shall be made if and only to the extent that such Partner would have a
deficit Capital Account in excess of such sum after all other allocations
provided for in this Section 13 have been tentatively made as if Section
13(d)(1) hereof and this Section 13(d)(2) were not in the Agreement."
12
14
ARTICLE V
DISTRIBUTIONS, WITHDRAWALS AND LOANS
14. Distributions.
(a) Cash Flow Distributions. Cash Flow shall be
distributed Pro Rata among the Partners. Notwithstanding the foregoing, if the
Partners unanimously agree, the Partnership may distribute Cash Flow
attributable to a sale of property in a non-Pro Rata manner.
(b) Partial or Complete Withdrawal by a Partner From the
Partnership.
(1) In the event of a partial or complete
withdrawal of a Partner from the Partnership pursuant to Article VIII, the
Managing General Partner shall, as promptly as is reasonably possible,
distribute to the Partner his Pro Rata share of the Marketable Securities
previously contributed by such Partner to the Partnership, cash and other
readily divisible assets of the Partnership. The withdrawing Partner shall
also be entitled to receive cash equal in value to his Pro Rata share of the
fair market value (as reasonably determined by the Managing General Partner) of
any non-readily divisible assets owned by the Partnership. The Managing
General Partner shall, as promptly as possible, distribute this additional
amount of cash, if any, to the withdrawing Partner. Cash distributions to the
withdrawing Partner shall be reduced by such Partner's Pro Rata share of the
liabilities of the Partnership and by any expenses incurred by the Partnership
with respect to the withdrawal of the Partner.
(2) A Partner may request that all or a portion
of the Marketable Securities subject to the requested withdrawal be sold by the
Partnership and the net proceeds (after selling and other expenses) distributed
as directed by him. In the event that the Managing General Partner is unable
to sell these Marketable Securities, it shall distribute them to the Partner,
unless it is notified by the Partner to cancel the withdrawal.
(3) The Managing General Partner shall not be
required to distribute to the requesting Partner any assets that the
Partnership is legally restricted or prohibited from distributing to the
Partner, unless steps can be taken to remove the restriction or prohibition; in
which case the requesting Partner shall be charged with the expense of removing
such restriction or prohibition. Any distribution hereunder shall also be
subject to the limitations set forth in sections 9(c) and 15, respectively.
(c) Liquidating Distributions. The net proceeds from
liquidation of the Partnership's assets pursuant to its
13
15
dissolution, winding-up, and termination shall be distributed, and all Profits
and Losses resulting from the liquidation of the Partnership property shall be
allocated, among the Partners in the proportions and orders of priority
specified in this section 14(c).
(i) The Liquidator shall distribute the net
proceeds from liquidation of the Partnership's assets as follows:
(1) FIRST: To pay all the liabilities
of the Partnership that are then due and payable, except for both Capital
Contributions of Partners and liabilities to the Partners, in the order of
priority required by Florida law; then
(2) SECOND: To establish any reasonable
reserve that the Liquidator may determine is required for unpaid, future, or
contingent liabilities or obligations of the Partnership; then
(3) THIRD: To pay all liabilities of
the Partnership to the Partners, pro rata according to the amounts of their
respective liabilities; then
(4) FOURTH: To the Partners to the
extent of any positive balances in their Capital Accounts, Pro Rata according
to the amounts of their respective positive balances; and then
(5) FIFTH: Any remaining net proceeds
shall be distributed Pro Rata among the Partners.
(ii) Any Profits and Losses and Taxable Income
and Taxable Loss resulting from the disposition of the Partnership's assets in
the process of liquidation shall be allocated among the Partners in the manner
provided in section 13. Any property distributed in kind in the liquidation
shall be valued and treated as if the property were sold and the cash proceeds
were distributed. The Profits and Losses arising from the constructive sale of
the property described in the preceding sentence shall be allocated among the
Partners in the manner provided in section 13.
15. Limitation on Distributions to Partners. A Partner may
receive distributions from the Partnership only to the extent the Partnership's
total assets exceed its total liabilities, other than liabilities to the
Partners on account of their Capital Contributions.
14
16
ARTICLE VI
AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS
16. Duties of Managing General Partner. The Managing General
Partner shall manage the affairs of the Partnership, shall apply itself
diligently for the Partnership, and shall devote to the Partnership such time
as is necessary and appropriate to manage the business of the Partnership. The
Managing General Partner is not required to devote all its business time to the
Partnership, and it may engage in other business ventures and employment,
including those in competition with the Partnership. In the performance of its
duties, the Managing General Partner may hire employees and agents of the
Partnership and generally shall supervise and direct all the daily operations
of the Partnership.
17. Managing General Partner's Fees and Expenses.
(a) Fees to Managing General Partner. In consideration
for performing services described herein, the Managing General Partner may be
paid a fee to be agreed upon by a Majority in Interest. Such fees shall be
deemed earned when the services have been performed and, regardless of when
paid, shall be non-executory from the date earned and shall be the obligation
of the Partnership from and after that date.
(b) Expenses. Except as otherwise provided herein, the
Partnership shall pay all expenses of the Partnership (which expenses may be
either billed directly to the Partnership or reimbursed to the Managing General
Partner) which may include, but are not limited to: (i) all costs of borrowed
money, taxes and assessments on the Property and other taxes applicable to the
Partnership; (ii) all costs for goods and materials, whether purchased by the
Partnership directly or by the Managing General Partner on behalf of the
Partnership; (iii) legal, audit, accounting, brokerage and other professional
fees; (iv) fees and expenses paid to independent contractors, mortgage bankers,
brokers, insurance brokers and other agents; (v) expenses of organizing,
revising, amending, converting, modifying or terminating the Partnership; (vi)
expenses in connection with distributions made by the Partnership to, and
communications and bookkeeping work necessary in maintaining relations with,
Partners; (vii) expenses in connection with preparing and mailing reports to
Partners; (viii) costs of any accounting, statistical or bookkeeping equipment
necessary for the maintenance of the books and records of the Partnership; (ix)
the cost of preparation and dissemination of informational material and
documentation relating to the Partnership; (x) except with respect to
litigation solely among the Partners as such, costs incurred in connection with
any litigation in which the Partnership is involved, as well as in the
examination, investigation or other proceedings, conducted against the
Partnership by any regulatory agency, including legal and
15
17
accounting fees incurred in connection therewith; (xi) costs of any computer
services or equipment or services of personnel used for or by the Partnership;
and (xii) expenses of professionals employed by the Partnership in connection
with any of the foregoing, including attorneys, accountants and appraisers.
18. Authority of Managing General Partner. The Managing General
Partner may bind the Partnership to do all acts that are necessary,
appropriate, or incidental to the accomplishment of the purposes of the
Partnership. Any person dealing with the Partnership or the Managing General
Partner may rely on a certificate signed by the Managing General Partner as to
the identity of any Partner, the existence or absence of any fact or condition
that is necessary to permit action by either the Partnership or the Managing
General Partner or germane in any other way to the affairs of the Partnership,
and the persons who are authorized to execute and deliver any documents or
instruments of or on behalf of the Partnership. Without limiting the
generality of the foregoing, the Managing General Partner is specifically
authorized to do the following:
(a) to negotiate and enter into leases and agreements
with land or building owners or other Persons, and to incur obligations for,
and on behalf of, the Partnership in connection with Partnership business;
(b) to borrow money on behalf of the Partnership and, as
security therefor, to encumber the property;
(c) to prepay, in whole or in part, refinance, increase,
modify or extend any obligation affecting the property;
(d) to sell, exchange, convey and lease the property;
(e) to employ from time to time, at the expense of the
Partnership, other Persons required for the operation and management of the
Partnership business, including accountants, attorneys and others, who may be
Partners, on such terms and for such compensation as the Managing General
Partner determines to be reasonable and this may include Persons which are
Affiliates;
(f) to pay all attorney's and accountant's fees and
other costs incurred in connection with the formation of the Partnership
business and the completion of all steps necessary or advisable for the
Partnership to comply with applicable laws;
(g) to assume responsibilities imposed on the Managing
General Partner by the Act;
16
18
(h) to compromise, arbitrate or otherwise adjust claims
in favor of or against the Partnership and to carry such insurance as the
Managing General Partner considers advisable;
(i) to exercise the voting rights associated with the
securities and other Property owned by the Partnership;
(j) to commence or defend litigation with respect to the
Partnership or any assets of the Partnership as the Managing General Partner
considers advisable, at the expense of the Partnership;
(k) to make, execute, acknowledge and deliver documents
of transfer and conveyance and any other instruments that may be necessary or
appropriate to carry out its powers; and
(l) to do all such acts and take all such proceedings
and execute all such rights and privileges, although not specifically mentioned
herein, as the Managing General Partner considers necessary to conduct the
business of the Partnership and to carry out the purposes of the Partnership.
Notwithstanding the foregoing, the Managing General Partner shall not
take any of the following actions without the consent of a Majority in
Interest:
(1) assign all or any part of the property for the
benefit of its creditors or confess a judgment against the Partnership;
(2) take any action in contravention of the Act, the
certificate of limited partnership or this Agreement;
(3) sell, lease, transfer, assign, pledge or encumber a
substantial portion (10% or more) in value of the property of the Partnership
(except with respect to transactions to which section 28 or section 32
applies); or
(4) admit a Person as a Partner of the Partnership.
19. Dealing with Affiliates. The Managing General Partner may
employ and enter into contracts and other arrangements with any Person,
including an Affiliate, and may obligate the Partnership to pay reasonable
compensation for services rendered by such Persons on terms that, in the
judgment of the Managing General Partner, are not less favorable to the
Partnership than would be available from an unrelated party.
20. Indemnification of General Partners. The Managing General
Partner need not secure the performance of its duties by bond or otherwise. A
General Partner is not liable, responsible,
17
19
or accountable in damages or otherwise to any Partner or to the Partnership for
any act taken or omission made in good faith on behalf of the Partnership and
in a manner that such General Partner reasonably believes to be within the
scope of the authority granted to it by this Agreement and in the best interest
of the Partnership, except for gross negligence or willful misconduct. Any
loss, expense (including attorneys' fees) or damage incurred by a General
Partner by reason of any act or omission by it in good faith on behalf of the
Partnership and in a manner that it reasonably believes to be within the scope
of the authority granted to it by this Agreement and in the best interest of
the Partnership (but not, in any event, any loss, expense or damage incurred by
a General Partner by reason of gross negligence or willful misconduct) shall be
paid to the indemnified General Partner from the Partnership's assets, to the
extent available.
21. Liability of Non-Managing General Partner. The non-managing
General Partners are not liable to any other Partner for the gross negligence
or willful misconduct of the Managing General Partner.
22. Authority of Non-Managing General Partner. The non-managing
General Partners shall not participate in the management of, or have any
control over, the business or policies of the Partnership, except as required
by the Act or permitted by section 18, and shall not transact any business in
the name of the Partnership. Unless required by the Act, a non-managing
general partner shall not sign any agreement, document or instrument in the
name of the Partnership or otherwise make commitments on behalf of the
Partnership.
ARTICLE VII
TRANSFER OF PARTNERSHIP INTERESTS
23. General Partners. Subject to section 24, a General Partner
may make an Assignment, directly or indirectly, of all or any part of its
Partnership Interest. However, an Assignment does not relieve such General
Partner of its obligations and liabilities under this Agreement, or constitute
the assignee a General Partner, or confer on the assignee any Partnership
Rights. Subject to section 24, and only if a Majority in Interest consents, a
General Partner may make an Assignment of both its Partnership Interest and its
Partnership Rights if the assignee assumes in writing all such General
Partner's obligations and liabilities under this Agreement and if all the
applicable requirements of section 25 are satisfied. Upon compliance with the
immediately preceding sentence, an assignee of such General Partner has all the
rights and powers granted to such General Partner under this Agreement and has
all the obligations and liabilities of such General Partner under this
Agreement.
18
20
24. Restriction on Transfer. Notwithstanding any other
provision of this Agreement, an assignment of a Partnership Interest shall not
be made, and consent thereto shall be withheld:
(a) Unless the Managing General Partner has satisfied
itself (by seeking advice of legal counsel or otherwise, with any resulting
Partnership expense to be reimbursed by the assignor) that the assignment will
not have any significant adverse tax effect upon the Partnership or the other
Partners;
(b) Unless the Managing General Partner has satisfied
itself (by advice of legal counsel, with any resulting Partnership expense to
be reimbursed by the assignor) that the proposed assignment may be made without
registration under any applicable securities law; and it will not violate any
applicable securities law (including investor suitability standards);
(c) If the Assignment is sought to be made to:
(i) a minor or incompetent, except if made by
will or intestate succession, or
(ii) to a Person which is not an Affiliate.
25. Admission of Substitute Partner. Subject to the other
provisions of this Agreement, an assignee of a Partnership Interest may be
admitted as a Partner and granted Partnership Rights only if:
(a) the Assignment is made pursuant to a written
instrument in a form satisfactory to the Managing General Partner and specifies
the intention of the assignor that the assignee be substituted as a Partner;
(b) the Managing General Partner consents to the
admission by executing two counterparts of this Agreement that evidences the
Partnership Rights of the assignee, and if the assignee is to be admitted as a
General Partner a Majority in Interest consent to the admission;
(c) the assignee accepts, signs and agrees to be bound
by this Agreement, by executing two counterparts of this Agreement, including
an amended EXHIBIT A, and such other documents or instruments as the Managing
General Partner requires to effect the admission of the assignee as a Partner;
(d) the assignee provides the Managing General Partner
with evidence satisfactory to it of the assignee's authority to become a
Partner under the terms of this Agreement;
(e) the assignee pays all filing, publication and other
costs (including reasonable attorneys' fees) incurred by
19
21
either the Partnership or the Managing General Partner in connection with the
admission and substitution of the assignee as a Partner.
Notwithstanding an assignee's satisfaction of any or all of the
conditions specified above, the Managing General Partner, in its absolute
discretion, may refuse to consent to the assignee's admission as a Partner, in
which event the assignee will not obtain any Partnership Rights, but will
retain only the rights of an assignee under section 23.
26. Rights of Partner After Assignment and Substitution. Upon
the Assignment of all his Partnership Interest, and the admission of a
substitute partner, a Partner shall cease to be a Partner and to have any
Partnership Rights.
27. Allocations and Distributions After Assignment. For the
purposes of allocations of Profits and Losses, Taxable Income or Taxable Loss,
and distributions, an Assignment of a Partnership Interest is effective as to
the Partnership, and shall be reflected in the records of the Partnership, as
of the date that the Managing General Partner receives written notice of the
Assignment. The Taxable Income or Taxable Loss, Profits and Losses and cash
and other distributions in respect of the assigned Partnership Interest with
respect to the fiscal year in which the Assignment of the Partnership Interest
occurs shall be divided between the assignor and the assignee according to the
method provided to the Managing General Partner by the assignor and the
assignee, so long as such method is permitted under the Code and does not
adversely affect the other Partners or the Partnership from a tax or economic
perspective. The method of allocation shall be provided to the Managing
General Partner in the written notice of the Assignment. Any additional costs
for computing the allocations hereunder shall be paid by the assignor or
assignee, as the case may be. The written notice referred to above shall also
contain information as to whether the assignor or assignee shall be responsible
for the payment of such additional cost, if any.
ARTICLE VIII
RETIREMENT, WITHDRAWAL, OR REMOVAL OF PARTNERS
28. Withdrawal of Non-Managing General Partner and Limited
Partners.
(a) A non-managing General Partner and a Limited Partner
may, at any time, partially withdraw his Partnership Interest from the
Partnership by providing written notice thereof to the Managing General
Partner. The Managing General Partner shall promptly send a copy of such
notice to all other Partners. Within thirty (30) days after the receipt of
such written notice
20
22
from a Partner, the Managing General Partner shall make the appropriate
distributions to the Partner in partial or complete redemption of his
Partnership Interest as set forth in section 14(b).
(b) A partial withdrawal by a Partner shall be made in
increments of one-tenth (1/10th) of one percent (1%) of a Percentage Interest.
The written notice of withdrawal from a Partner to the Managing General Partner
must state whether the withdrawal is a partial or complete withdrawal and, if a
partial withdrawal, must state the Percentage Interest that is being withdrawn.
A Partner shall not make a partial withdrawal that will result in his remaining
Percentage Interest becoming less than one-tenth (1/10th) of one percent (1%)
immediately after the withdrawal.
(c) The Managing General Partner agrees that it will
fully cooperate to the extent permitted by law to accomplish a withdrawal
requested by a non-managing General Partner and a Limited Partner hereunder.
It also agrees that it will not take any action that will obstruct or render
impossible the application of this section 28 (such as to pledge the
Partnership's Marketable Securities as collateral to creditors of the
Partnership), unless such action is essential to accomplish the purposes of the
Partnership.
(d) The partial withdrawal of a non-managing General
Partner or a Limited Partner does not dissolve or terminate the Partnership
unless there is only one Partner then remaining. The remaining Partners shall
amend this Agreement to reflect the partial or complete withdrawal of the
Partner from the Partnership, if and to the extent necessary.
(e) Upon the giving of the notice of withdrawal pursuant to
Paragraph (a), and upon the dissolution of the Partnership, the voting rights
with respect to any Marketable Securities allocable to the Percentage Interest
being withdrawn shall be vested in the withdrawing Partner or Partners, and the
Partnership shall have no voting rights with respect to such stock.
29. Retirement or Withdrawal of General Partner. The Managing
General Partner may not withdraw any part of its General Partnership Interest.
The Retirement of the Managing General Partner shall dissolve the Partnership.
Notwithstanding the foregoing or anything else in this Agreement to the
contrary, a merger, consolidation, or reorganization of the Managing General
Partner, or a sale of all or substantially all its assets that includes its
Partnership Interest, is not a Retirement of such Managing General Partner if
the resulting, surviving or acquiring Person is an Affiliate and becomes
substituted as the Managing General Partner of the Partnership. The resulting,
surviving or acquiring Person is substituted as the Managing General Partner
21
23
without further act if it gives notice of the substitution to the Partners
before the effective date of the merger, consolidation, reorganization or sale.
Each Partner consents to the admission and substitution of such substitute
Managing General Partner pursuant to this section 29, and no further consent or
approval of any Partner is required.
30. Rights of Partner After Retirement or Withdrawal. A Partner
ceases to have any Partnership Rights upon his Retirement or complete
withdrawal from the Partnership. However, until the appropriate distributions,
if any, are made to a Retired or withdrawn Partner for his Partnership
Interest, the Retired or withdrawn Partner is entitled to receive the
allocations of Profits and Losses, Taxable Income or Taxable Loss and all
distributions referred to in section 14 applicable to his Partnership Interest.
ARTICLE IX
DISSOLUTION
31. Events of Dissolution. The Partnership shall be terminated
and dissolved upon:
(a) the expiration of its term;
(b) the vote of a Majority in Interest to dissolve the
Partnership;
(c) the Partnership being adjudicated insolvent or
bankrupt;
(d) the Retirement of the Managing General Partner; or
(e) the sale of all or substantially all of the
Partnership's Property.
32. Winding-Up and Distributions. Upon the dissolution of the
Partnership pursuant to section 31, the winding-up of the Partnership's
business and the liquidation and distribution of Partnership assets must be
carried out with due diligence and in a timely manner, and consistent with both
the requirements of applicable law and the following provisions of this
section:
(a) The Managing General Partner shall be responsible
for taking all actions relating to the winding-up, liquidation, and
distribution of assets of the Partnership, unless its Retirement causes the
dissolution, in which case the fiscal agent, liquidator, or receiver appointed
(without judicial action) by a Majority in Interest shall be so responsible.
The Managing General Partner, or the appointed fiscal agent, liquidator, or
22
24
receiver, is referred to in this Agreement as the "Liquidator." A non-managing
General Partner can be appointed to be the Liquidator. The Liquidator shall
file all certificates or notices of the dissolution of the Partnership as
required by law. Upon the complete liquidation and distribution of the
Partnership assets, the Partnership shall terminate, and the Liquidator shall
execute, acknowledge, and cause to be filed all certificates and notices
required by law to terminate the Partnership.
(b) The Liquidator shall proceed without unnecessary
delay to sell and otherwise liquidate the Partnership's assets. Unless
directed otherwise by a Majority in Interest, all Marketable Securities, cash
and other readily divisible or fungible assets of the Partnership shall be
distributed directly to the Partners in the manner set forth in section
14(c)(i). The Liquidator shall promptly sell the other assets of the
Partnership unless it determines that an immediate sale of part or all of such
assets would cause undue loss to the Partners. In such case, the Liquidator,
to avoid such loss, may defer the liquidation of the Partnership assets for a
reasonable time, except for those liquidations that are necessary to satisfy
the debts and liabilities of the Partnership to persons and parties other than
the Partners. The Liquidator shall distribute the proceeds from the
liquidation of the Partnership's assets as provided in section 14(c).
(c) Upon the dissolution of the Partnership pursuant to
section 31, the Liquidator shall cause the accountants for the Partnership to
prepare within ninety (90) days after the occurrence of the event of
dissolution, and immediately thereafter shall furnish to each Partner, a
statement setting forth the assets and liabilities of the Partnership as of the
date of its dissolution. The Liquidator, promptly following the complete
liquidation and distribution of the Partnership's assets, shall cause the
Partnership's accountants to prepare, and the Liquidator shall furnish to each
person who is a Partner immediately before the dissolution, a statement showing
the manner in which the Partnership assets were liquidated and distributed.
33. Distribution of Liquidation Proceeds and Assets and
Allocation of Gains and Losses. The net proceeds from liquidation of the
Partnership's assets and the unliquidated Property of the Partnership shall be
distributed, and all Profits and Losses resulting from the liquidation of the
Partnership shall be allocated, among the Partners in the proportions and
orders of priority specified in section 14(c).
34. Limitation of Liability of Partners. Upon the dissolution
of the Partnership and the distribution of the net liquidation proceeds
pursuant to section 31 and section 14(c), each Partner shall look solely to the
assets of the Partnership for the payment of his unreturned Capital
Contributions, and if the
23
25
Partnership's assets remaining after the payment or discharge of the debts and
liabilities of the Partnership are insufficient to pay the full amount of the
unreturned Capital Contributions of each Partner, the Partner shall have no
recourse or claim against any Partner or the Partnership with respect to its
unreturned Capital Contributions, except for claims for fraud, gross
negligence, or breach of fiduciary duty. Notwithstanding anything to the
contrary contained herein, each Limited Partner hereby waives his or her right
to seek indemnity from the General Partner for any losses he or she might
suffer under this Partnership Agreement or under any ancillary agreements
related to the business of the Partnership including any personal guarantees of
the liabilities of the Partnership. Further, each Limited Partner hereby
waives his or her right to recover from the Partnership, as primary obligor,
any amounts such Limited Partner becomes liable to pay or pays pursuant to any
agreements related to the business of the Partnership including any personal
guarantees of the liabilities of the Partnership.
35. Waiver of Right of Partition of Assets. Each Partner, and
for his heirs, successors, and assigns, waives his right to the partition of
the assets of the Partnership upon the dissolution and liquidation of the
Partnership.
ARTICLE X
ACCOUNTING YEAR, BOOKS, RECORDS, AND REPORTS
36. Books and Records. The Managing General Partner shall
maintain at the principal office of the Partnership a complete and accurate set
of books of records and accounts, in which it shall make full and complete
entries of all dealings or transactions relating to the Partnership's business
and where it shall keep all supporting documentation of transactions with
respect to the conduct of the Partnership's business. Each Partner or his duly
authorized representative, upon five days' advance notice to the Managing
General Partner, may examine during normal business hours the books of the
Partnership and all other records and information concerning the operation of
the Partnership.
37. Reports. If requested by a Partner at least 30 days prior
to the end of a quarter, within 60 days after the end of each fiscal quarter in
each fiscal year of the Partnership, the Managing General Partner shall cause
to be prepared and sent to each Partner a balance sheet, income statement and
cash flow statement of the Partnership for and as of the end of that fiscal
quarter, in each case unaudited but accompanied by a report of the activities
of the Partnership for that quarter. Within 90 days after the end of each
fiscal year of the Partnership, the Managing General Partner shall cause to be
prepared and sent to each Partner a financial report consisting of (a) a
balance sheet as of the end
24
26
of the fiscal year; (b) statements of income, partner's equity, and changes in
financial position for the fiscal year; (c) if requested by a Partner, the
opinion of the Partnership's certified public accountant concerning the
foregoing financial statements; (d) a summary of the Partnership's activities
for the fiscal year; (e) a statement showing the distributions to each Partner
during the fiscal year and identifying any distributions which constitute a
return of Capital Contribution; and (f) a statement showing the amount of
Taxable Income or Taxable Loss, and listing each item of income, gain, loss,
deduction, or credit allocated or charged against the Partner for federal and
state income tax purposes.
38. Bank Accounts. The Managing General Partner shall maintain
the bank accounts of the Partnership in such financial institutions as the
Managing General Partner considers appropriate. The Managing General Partner
shall make or permit withdrawals from the Partnership's bank accounts on the
signature of the Managing General Partner.
39. Tax Elections. The Partnership shall file an election under
Section 754 of the Code, relating to the optional adjustment to the basis of
partnership property, at the first time it is permitted to do so after the
beginning of the term of this Partnership. The Managing General Partner shall
make or waive, at its discretion, all other tax elections required or permitted
to be made by the Partnership under the Code.
40. Accounting Method and Fiscal Year. The Managing General
Partner shall maintain the Partnership records and books of accounts in
accordance with the method of accounting required or permitted to be used for
federal income tax purposes, with such modifications as are set forth in this
Agreement, and otherwise in accordance with generally accepted accounting
principles consistently applied. The fiscal year of the Partnership is the
calendar year.
ARTICLE XI
GENERAL PROVISIONS
41. Partnership Contracts. The Managing General Partner may
enter into agreements and contracts on behalf of the Partnership only if they
are in writing and clearly indicate to the other parties that the Partnership
is a general partnership of which the Managing General Partner is a general
partner.
42. Conveyances. Subject to section 18, the Managing General
Partner may sign any deed, mortgage, lease, xxxx of sale, security agreement,
pledge, contract or other instrument or commitment purporting to convey or
encumber any of the Partnership's Property or any interest therein, whether now
or
25
27
subsequently owned or leased at any time by the Partnership, and no other
signature is required.
43. Notices. To be effective, a notice required or permitted by
this Agreement must be in writing, or by telegram, telex or telecopy if
promptly confirmed in writing. A notice is given when delivered or, if mailed,
when deposited in a United States postal service letterbox to be sent by
first-class, postage-prepaid, certified mail, with return receipt requested
(whether or not the sender receives the return receipt), and addressed, if to a
Partner, at his registered address listed on EXHIBIT A and, if to the Managing
General Partner or the Partnership, to the attention of such Managing General
Partner at the Partnership's principal business office.
44. Consents. Any consent required by this Agreement may be
given as follows:
(a) by a writing given by the consenting Partner and
received by the Managing General Partner or other appropriate recipient at or
before the occurrence of the action or other thing for which the consent was
solicited, unless the consent is nullified by:
(i) A writing from the consenting Partner that
is received by the Managing General Partner before the occurrence of the action
or other thing for which the consent was solicited; or
(ii) the negative vote by the consenting Partner
at any meeting called for the purpose of considering the action or other thing.
(b) by the affirmative vote of the consenting Partner at
any meeting called for the purpose of considering the action or other thing for
which the Partner's consent was solicited.
45. Meetings. The Managing General Partner may call meetings of
the Partners for any purpose, at any time. The Managing General Partner shall
call a meeting of the Partners within 30 days after he receives from a Majority
in Interest a written request for a meeting, stating the purpose of the
requested meeting and the matters proposed for consideration. Meetings of the
Partners may be held at such time, date and place as the Managing General
Partner designates. The Managing General Partner shall give notice of any
meeting of the Partners not less than ten nor more than 60 days before the date
of the meeting, to each Partner at his registered address listed on EXHIBIT A.
The notice shall state the time, date and place of the meeting, the purpose of
the meeting and the Partner at whose direction or request the meeting is
called. If a meeting is adjourned to another time or
26
28
place, notice of the adjourned meeting is not required if the time and place of
the adjournment is announced at the called meeting. The presence in person or
by proxy of a Majority in Interest constitutes a quorum at a meeting. Any
notice of a meeting required by this section may be waived in writing at,
before or after the meeting and shall be deemed to be waived by each Partner
who is present in person or by proxy at the meeting. Only those persons who
are Partners at the close of business on the day before the meeting are
entitled to vote at the meeting. Any Partner entitled to vote at a meeting may
authorize any person to act for him by written proxy if a copy of the proxy is
delivered to the Managing General Partner before the commencement of the
meeting. To be effective, a proxy must be signed by the Partner (and, if
applicable, each co-owner) or his duly appointed attorney-in-fact, and no proxy
shall be valid for more than 11 months after its date. A proxy is revocable at
the pleasure of the Partner granting it.
46. Binding Effect; Counterparts. The covenants and agreements
contained in this Agreement are binding on, and inure to the benefit of, the
legal and personal representatives, heirs, successors and permitted assignees
of the parties to this Agreement. The parties may execute this Agreement in
any number of counterparts, each of which will be an original, but all of which
together will constitute one and the same agreement.
47. Choice of Law. This Agreement and the rights and
obligations of the Partners under it are governed by, and construed and
enforced in accordance with, the laws of Florida.
48. Complete Agreement; Modification. This Agreement contains
the final, complete and exclusive expression of the understanding among the
Partners with respect to the Partnership and its purposes and objectives and
supersedes any prior or contemporaneous agreement or representation, oral or
written, by any of them. Except to admit a new or a substitute Partner or to
reflect the withdrawal or Retirement of a Partner, this Agreement and every
provision of it may be modified or amended only by an agreement in writing
signed by or on behalf of all Partners.
49. Evidence of Partnership Interests. The Partnership Interest
of each Partner is evidenced exclusively by a counterpart of this Agreement
(including EXHIBIT A) that has been signed and dated by the Managing General
Partner.
50. Tax Matters Partner. The Managing General Partner or its
designee shall be the "tax matters partner" of the Partnership for federal
income tax purposes. If the Managing General Partner ceases to act as the
Managing General Partner of the Partnership, the successor Managing General
Partner (if any), shall be designated the tax matters partner. Pursuant to
Section 6223(c)(2) of the Code, upon receipt of notice from the Internal
Revenue Service of the beginning of an administrative
27
29
proceeding with respect to the Partnership, the Managing General Partner, as
the tax matters partner, shall furnish the Internal Revenue Service with the
names, addresses, and Percentage Interests of each of the Partners. The
Managing General Partner agrees not to enter into a settlement agreement
pursuant to Section 6224 of the Code without providing at least 30 days advance
written notice to each Partner. As tax matters partner, the Managing General
Partner shall have absolute discretion regarding whether to seek judicial
review of any administrative determination and, if it determines to seek
judicial review of Internal Revenue Service action pursuant to Section 6226 of
the Code, then the Managing General Partner shall select the judicial forum for
such review. The tax matters partner shall receive no compensation for its
services as such. The Partnership shall bear all third party costs and
expenses incurred by the tax matters partner in performing its duties as such.
Nothing herein shall be construed to restrict the Partnership from engaging an
accounting firm or law firm to assist the tax matters partner in discharging
its duties hereunder.
51. Gender and Number. As used in this Agreement, the masculine
gender includes the feminine and neuter, and the singular includes the plural.
52. Title. Title to any property acquired by the Partnership
shall be taken in the name of the Partnership.
IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each Partner as of the date written beside his name.
General Partner
XXXXXX ENTERPRISES, INC.
By /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, President
Limited Partner
Xxxxxx Broadcasting of Orlando,
Limited Partnership
By: Xxxxxx Enterprises, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, President
28
30
STATE OF FLORIDA
COUNTY OF Pinellas
SUBSCRIBED TO AND SWORN BEFORE ME, on behalf of Xxxxxx Enterprises,
Inc., a Nevada corporation, as General Partner, by Xxxxxx X. Xxxxxx, its
President, who is personally known to me/has produced
____________________________ as identification and who did/did not take an
oath, this 10th day of March, 1993.
(SEAL)
/s/ Xxxxxxx Xxxxxx
---------------------------------
Printed/Typed Name:Xxxxxxx Xxxxxx
Notary Public-State of Florida
Commission Number:
STATE OF FLORIDA
COUNTY OF Pinellas
SUBSCRIBED TO AND SWORN BEFORE ME, by Xxxxxx Enterprises,
Inc., a Nevada corporation, as General Partner of Xxxxxx Broadcasting of
Orlando, Limited Partnership, by Xxxxxx X. Xxxxxx, as Limited Partner, who is
personally known to me/has produced ____________________________ as
identification and who did/did not take an oath, this 10th day of March, 1993.
(SEAL)
/s/ Xxxxxxx Xxxxxx
---------------------------------
Printed/Typed Name:Xxxxxxx Xxxxxx
Notary Public-State of Florida
Commission Number:
29
31
EXHIBIT A
General Partners Contribution Percentage Interest
-------------------------------------------------------------------------------
Xxxxxx Enterprises, Inc. 5%
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Limited Partners
----------------
Xxxxxx Broadcasting of Orlando, 95%
Limited Partnership
00000 X.X. Xxxxxxx 00 Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
30
32
AMENDMENT NUMBER 1 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXX XXXXXXX LICENSE LIMITED PARTNERSHIP
This Amendment Number 1 ("Amendment") to the Agreement of Limited
Partnership (the "Partnership Agreement") of Xxxxxx Xxxxxxx License Limited
Partnership ("Amendment") is effective as of the 29th day of March, 1993, by
and between XXXXXX ENTERPRISES, INC., a Nevada corporation, as the General
Partner and XXXXXX BROADCASTING OF ORLANDO, LIMITED PARTNERSHIP, a Florida
limited partnership, as a Limited Partner. The parties hereby agree as
follows:
1. Assignment. The definition of "Assignment" in Article I,
Section 1 of the Partnership Agreement is amended in its entirety to read as
follows:
"`Assignment' means a sale, exchange, gift, pledge, transfer
or disposition of any kind whatsoever and, in the case of a
Person that is not an individual, it includes the sale,
exchange, pledge, transfer or disposition of a majority of
either voting control or the equity interests in such Person;
provided, however, that an "Assignment" does not include a
pledge of, or a grant of a security interest in, a Partnership
Interest, Partnership Rights, or the majority of either voting
control or the equity interests in any Person, which pledge or
security interest is given or granted for the purpose of
securing an obligation of the Partnership or any Partner or
any Person owning an equity interest in a Partner, provided
that the giving or grant of such pledge or security interest
is approved by the Managing General Partner."
2. Partnership Office. The fifth sentence of Article II,
Section 5 of the Partnership Agreement is amended to read as follows: "The
principal business office of the Partnership is located at 00000 X.X. Xxxxxxx
00 Xxxxx, Xxxxxxxxxx, Xxxxxxx 00000."
3. Purposes of Partnership; Authorized Acts. Article II,
subsection 7.A.(a)(i) of the Partnership Agreement is amended to read as
follows:
"acquire, operate, manage and perform all matters necessary
and attendant to the operation of one or more radio stations
in the State of Florida,".
1
33
4. Power to Guarantee Obligations of Others. Article II,
subsection 7.B. of the Partnership Agreement is amended by redesignating
clauses (g) and (h) as clauses (h) and (i), respectively, and inserting the
following as clause (g):
"(g) guarantee the debts and obligations of any Partner and
secure the same by a mortgage, pledge, security interest or
other liens upon the property of the Partnership, any part
thereof, any interest therein, or any improvements thereto;".
5. Section 49 of the Partnership Agreement, entitled "Evidence of
Partnership Interests," is hereby deleted in its entirety, and Sections 50, 51,
and 52 of the Partnership Agreement are renumbered as Sections 49, 50, and 51
respectively.
6. Ratification and Confirmation. The Partnership Agreement, as
hereby amended, is ratified and confirmed in all other respects.
IN WITNESS WHEREOF, the parties have executed this Amendment Number 2
on this 29th day of March, 1993.
WITNESSES: GENERAL PARTNER:
XXXXXX ENTERPRISES, INC.
/s/ Xxxxxxx Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
------------------------ ------------------------
Its
President
--------------------
/s/ Xxxx X. Xxxxx
------------------------
LIMITED PARTNER:
XXXXXX BROADCASTING OF ORLANDO,
LIMITED PARTNERSHIP, By Xxxxxx
Enterprises, Inc. its General
Partner
/s/ Xxxxxxx Xxxxxx /s/ Xxxxxx X. Xxxxxx
------------------------ --------------------------
Xxxxxx Xxxxxx, President
/s/ Xxxx X. Xxxxx
------------------------
2
34
GENERAL PARTNERSHIP INTERESTS ASSIGNMENT AGREEMENT
This is a General Partnership Interests Assignment Agreement
(the "Agreement") dated December 15, 1993 (the "Effective Date"). It is among
Xxxxxx Enterprises, Inc. (the "General Partner Assignor"), Xxxxxx
Communications Corp. (the "First Assignee"), Xxxxxx Communications of Florida,
Inc. (the "General Partner Assignee"), and Xxxxxx X. Xxxxxx (the "Nonassigning
Limited Partner") in respect of the Limited Partnerships listed in Exhibit "A"
(the "Station Partnerships"). It is also among the General Partner Assignee,
the First Assignee, the General Partner Assignee and the Station Partnerships
in their capacities as a limited partner (each a "License Limited Partner") in
their respective Limited Partnerships listed in Exhibit "B" (the "License
Partnerships," and together with the Station Partnerships, the "Partnerships").
Capitalized terms used herein and not ascribed a definition have the meaning
assigned to them by the Partnership Agreement to which the term pertains.
BACKGROUND
The General Partner Assignor and the Nonassigning Limited
Partner are partners in the Station Partnerships. The General Partner Assignor
and the License Limited Partners are the partners in the License Partnerships.
The General Partner Assignor wishes to transfer each of its general partnership
interests in the Station Partnerships and the License Partnerships to the First
Assignee in exchange for certain of its common stock and the First Assignee
wishes to immediately assign such general partnership interests to the General
Partner Assignee in exchange for all of the capital stock of the General
Partner Assignee. The General Partner Assignor and the First Assignee also
wish to have the General Partner Assignee admitted as a Partner and granted
partnership rights in each of the Partnerships. The General Partner Assignee
agrees to accept the assignment of the general partnership interests and to be
admitted as a General Partner in the respective Partnerships pursuant to the
Partnership Agreements identified in Exhibit "A" and "B", respectively (the
"Partnership Agreements"). The Nonassigning Limited Partner as the limited
partner in each of the Station Partnerships and each of the License Limited
Partners as the limited partner in the respective License Partnerships hereby
consent to the assignment of the general partnership interests and admission of
the General Partner Assignee as the general partner in their respective
Partnerships pursuant to the terms of this Agreement and the Partnership
Agreements. Pursuant to Chapter 620, Florida Statutes, the Partnerships will
continue uninterrupted and the assignment of the general partnership interests
will not cause a termination of the Partnerships.
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, the parties hereto agree as follows:
TERMS
1. Assignment of Partnership Interests. Pursuant to
Section 23 of each of the Partnership Agreements and Section 620.152, Florida
Statutes, the General Partner Assignor assigns all of its general partnership
interests in the Partnerships to the First Assignee. The
1
35
First Assignee accepts the assignment of all of the general partnership
interests. Pursuant to Section 23 of each of the Partnership Agreements and
Section 620.152, Florida Statutes, the First Assignee assigns all of its
general partnership interests in the Partnerships to the General Partner
Assignee. The General Partner Assignee accepts the assignment of all of the
general partnership interests.
2. Admission of General Partner Assignee and Withdrawal
of General Partner Assignor. On the Effective Date, the General Partner
Assignee is admitted as a general partner under the respective Partnership
Agreement and the General Partner Assignor has withdrawn from each of the
Partnerships.
3. General Partner Assignee's Acceptance of Admission.
By executing this Agreement, the General Partner Assignee accepts and agrees to
be bound by the terms and provisions of the respective Partnership Agreements
and shall become the Managing General Partner of each of the Partnerships. The
parties agree that the General Partner Assignee's execution of this Agreement
shall satisfy the requirement of Sections 23, 24 and 25 of the respective
Partnership Agreements.
4. Limited Partner's Consent. Each of the Nonassigning
Limited Partner and the License Limited Partners consent to the assignment of
the general partnership interest by the General Partner of their respective
Partnership and to the admission of the General Partner Assignee as a general
partner under the respective Partnership Agreements.
5. Continuation of Partnerships. Pursuant to Chapter
620, Florida Statutes, the partners agree that the Partnerships will continue
uninterrupted and the assignment of the general partnership interests will not
cause a termination of any of the Partnerships.
6. Security Interests. Without limiting any of the
foregoing, each of General Partner Assignor, First Assignee, General Partner
Assignee, Nonassigning Limited Partner and the License Limited Partners agree
and acknowledge that (i) General Partner Assignor's general partnership
interests in each of the Partnerships are subject to the lien and security
interest of Banque Paribas, as Agent on behalf of the Lenders (the "Agent"),
under the Loan Documents (as defined in that certain Credit Agreement dated as
of March 30, 1993 by and among Banque Paribas, the Lenders identified therein
and each of the Station Partnerships) and (ii) the assignment of the general
partnership interests in the Partnerships by General Partner Assignor to First
Assignee, and by First Assignee to General Partner Assignee, are made subject
to such continuing lien and security interest of Agent under the Loan
Documents.
7. Applicable Law. This Agreement will be construed,
interpreted, and enforced in accordance with the laws of the State of Florida.
8. Counterparts. This Agreement may be executed in
several counterparts and all counterparts so executed will constitute one
agreement binding on all of the parties, notwithstanding that all of the
parties have not signed the original or the same counterpart.
2
36
9. Entire Agreement. This Agreement embodies the final,
complete, and exclusive expression of the understanding among the parties and
supersedes any prior or contemporaneous agreement or representation, oral or
written, by any of them.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year stated above.
XXXXXX ENTERPRISES, INC., as
General Partner Assignor and as
Withdrawing General Partner of each
Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, President
/s/ Xxxxxx X. Xxxxxx
------------------------------
Xxxxxx X. Xxxxxx, Nonassigning
Limited Partner
XXXXXX COMMUNICATIONS CORPORATION,
First Assignee
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx, President
XXXXXX COMMUNICATIONS OF FLORIDA,
INC., as General Partner Assignee
and successor General Partner of
each Partnership
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, President
3
37
EXHIBIT "A"
Limited Partnerships
Agreement of Limited Partnership of Xxxxxx Broadcasting of Jacksonville,
Limited Partnership dated June 27, 1991, as amended by Amendment
Number 1 to the Agreement of Limited Partnership of Xxxxxx
Broadcasting of Jacksonville, Limited Partnership dated January 1,
1992, and Amendment Number 2 to the Agreement of Limited Partnership
of Xxxxxx Broadcasting of Jacksonville, Limited Partnership dated
March 29, 1993.
Agreement of Limited Partnership of Xxxxxx Broadcasting of Tampa, Limited
Partnership dated June 27, 1991, as amended by Amendment Number 1 to
the Agreement of Limited Partnership of Xxxxxx Broadcasting of Tampa,
dated June 27, 1991, and Amendment Number 2 to the Agreement of
Limited Partnership of Xxxxxx Broadcasting of Tampa, dated April 27,
1992, and Amendment Number 3 to the Agreement of Limited Partnership
of Xxxxxx Broadcasting of Tampa, Limited Partnership, dated January 1,
1992, and Amendment Number 4 to the Agreement of Limited Partnership
of Xxxxxx Broadcasting of Tampa, Limited Partnership, dated March 29,
1993.
Agreement of Limited Partnership of Xxxxxx Broadcasting of Miami, Limited
Partnership dated November 18, 1991, as amended by Amendment Number 1
to the Agreement of Limited Partnership of Xxxxxx Broadcasting of
Miami, Limited Partnership, dated January 1, 1992, and Amendment
Number 2 to the Agreement of Limited Partnership of Xxxxxx
Broadcasting of Miami, dated March 29, 1993.
Agreement of Limited Partnership of Xxxxxx Broadcasting of Orlando, Limited
Partnership dated November 18, 1991, as amended by Amendment Number 1
to the Agreement of Limited Partnership of Xxxxxx Broadcasting of
Orlando, Limited Partnership, dated January 1, 1992, and Amendment
Number 2 to the Agreement of Limited Partnership of Xxxxxx
Broadcasting of Orlando, Limited Partnership.
4
38
EXHIBIT "B"
Limited Partnerships
Agreement of Limited Partnership of Jacksonville License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of Xxxxxx Jacksonville, Licensed
Limited Partnership dated March 29, 1993.
Agreement of Limited Partnership of Xxxxxx Tampa License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of Xxxxxx Tampa, Licensed Limited
Partnership dated March 29, 1993.
Agreement of Limited Partnership of Xxxxxx Miami License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of Xxxxxx Miami, Licensed Limited
Partnership dated March 29, 1993.
Agreement of Limited Partnership of Xxxxxx Xxxxxxx License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of Xxxxxx Xxxxxxx, Licensed Limited
Partnership dated March 29, 1993.
5
39
AMENDMENT NUMBER 2 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
XXXXXX XXXXXXX LICENSE LIMITED PARTNERSHIP
This Amendment Number 2 ("Amendment") to the Agreement of Limited
Partnership (the "Partnership Agreement") of Xxxxxx Xxxxxxx License Limited
Partnership ("Amendment") is effective as of the 19th day of September, 1995,
by and between XXXXXX COMMUNICATIONS OF FLORIDA, INC., a Florida corporation,
as the General Partner and XXXXXX BROADCASTING OF ORLANDO, LIMITED PARTNERSHIP,
as a Limited Partner. The parties hereby agree as follows:
1. Partnership Office. The fifth sentence of Article II,
Section 5 of the Partnership Agreement is amended to read as follows: "The
principal business office of the Partnership is located at 000 Xxxxxxxxxx Xxxx
Xxxx, Xxxx Xxxx Xxxxx, Xxxxxxx 00000."
2. Ratification and Confirmation. The Partnership Agreement, as
hereby amended, is ratified and confirmed in all other respects.
IN WITNESS WHEREOF, the parties have executed this Amendment Number 2
on this 19th day of September, 1995.
WITNESSES: GENERAL PARTNER:
XXXXXX COMMUNICATIONS OF FLORIDA,
INC.
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- ------------------------
Its
Secretary
--------------------
/s/ Desire Xxxxx
--------------------------
LIMITED PARTNER:
XXXXXX BROADCASTING OF ORLANDO,
LIMITED PARTNERSHIP
/s/ Xxxxx Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxx
-------------------------- -------------------------------
The Secretary of Xxxxxx
Communications of Florida, Inc., its
general partner.
1
