JP/UNIVERSAL CITY RESTAURANT PARTNERS, L.P. AGREEMENT OF LIMITED PARTNERSHIP Dated as of September 11, 1997
Exhibit 10.44
JP/UNIVERSAL CITY RESTAURANT PARTNERS, L.P.
AGREEMENT OF LIMITED PARTNERSHIP
Dated as of September 11, 1997
THE PARTNERSHIP INTERESTS REPRESENTED BY THIS AGREEMENT OF LIMITED PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR UNDER ANY OTHER APPLICABLE SECURITIES LAWS. SUCH INTERESTS MAY NOT BE SOLD, ASSIGNED, PLEDGED OR OTHERWISE DISPOSED OF AT ANY TIME WITHOUT EFFECTIVE REGISTRATION UNDER SUCH ACT AND LAWS OR EXEMPTION THEREFROM, AND COMPLIANCE WITH THE OTHER SUBSTANTIAL RESTRICTIONS ON TRANSFERABILITY SET FORTH HEREIN.
TABLE OF CONTENTS
Page | ||||
ARTICLE I |
ORGANIZATIONAL MATTERS |
1 |
SECTION 1.1. Formation |
1 | |||
SECTION 1.2. Name |
1 | |||
SECTION 1.3. Purpose |
1 | |||
SECTION 1.4. Names and Addresses of Partners |
1 | |||
SECTION 1.5. Term |
1 | |||
SECTION 1.6. Principal Place of Business: Registered Agent |
1 | |||
SECTION 1.7. Books of Account and Records |
2 | |||
SECTION 1.8. Fiscal Year |
2 |
ARTICLE II |
DEFINITIONS |
2 |
“Act” |
2 | |||
“Actual Development Costs” |
2 | |||
“Additional Capital Contribution” |
2 | |||
“Affiliate” |
2 | |||
“Approved Business Plan” |
2 | |||
“Buffett” |
2 | |||
“Buffett Intellectual Property” |
2 | |||
“Buffett Memorabilia” |
3 | |||
“Callable Interest” |
3 | |||
“Call Exercise Period” |
3 | |||
“Call Notice” |
3 | |||
“Call Notice Period” |
3 | |||
“Call Purchase Price” |
3 | |||
“Capital Account” |
3 | |||
“Capital Contribution” |
3 | |||
“CityWalk” |
3 | |||
“Closing” |
3 | |||
“Closing Date” |
3 | |||
“Code” |
3 | |||
“Control” |
3 | |||
“Deficit” |
3 | |||
“Development Budget” |
4 | |||
“Distributable Cash” |
4 | |||
“Final Determination” |
4 | |||
“GAAP” |
4 | |||
“General Partner” |
4 | |||
“Initial Capital Contribution” |
4 | |||
“Initial General Partner” |
4 | |||
“Investment” |
4 | |||
“Lease” |
4 | |||
“License Agreement” |
4 |
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“Limited Partner” | 5 | |||
“Management Agreement” | 5 | |||
“Manager” | 5 | |||
“Note” | 5 | |||
“Operative Documents” | 5 | |||
“Net Profits” and “Net Losses” | 5 | |||
“Participating Percentage” | 5 | |||
“Partners” | 5 | |||
“Partnership” | 5 | |||
“Partnership Interest” | 6 | |||
“Person” | 6 | |||
“Proceeding” | 6 | |||
“Put Notice” | 6 | |||
“Putable Interest” | 6 | |||
“Put Notice Period” | 6 | |||
“Put Purchase Price” | 6 | |||
“Restricted Transferee” | 6 | |||
“Substantial Completion” | 6 | |||
“Tax Decisions” | 6 | |||
“Transfer” | 7 | |||
“Universal” | 7 | |||
“Venue” | 7 |
ARTICLE III |
CAPITAL AND CONTRIBUTIONS | 7 |
SECTION 3.1. Initial Capital Contributions | 7 | |||
SECTION 3.2. Additional Capital Contributions | 8 | |||
SECTION 3.3. Capital Accounts | 9 | |||
SECTION 3.4. Negative Capital Accounts | 9 | |||
SECTION 3.5. Loans From Partners | 9 |
ARTICLE IV |
PARTICIPATING PERCENTAGES | 10 |
SECTION 4.1. Universal 50%/General Partner 50% | 10 | |||
SECTION 4.2. Universal 70%/General Partner 30% | 10 | |||
SECTION 4.3. Universal 25%/General Partner 75% | 10 | |||
SECTION 4.4. Universal Less Than 25%/General Partner Greater Than 75% | 10 | |||
SECTION 4.5. Put/Call Partnership Termination | 10 | |||
SECTION 4.6. Purchase of Universal’s Interest | 10 |
ARTICLE V |
DISTRIBUTIONS | 11 |
SECTION 5.1. Distributions from Operations | 11 | |||
SECTION 5.2. Amounts Required to be Withheld | 11 | |||
SECTION 5.3. Distributions on Liquidation | 11 |
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ARTICLE VI |
ALLOCATIONS OF PROFITS AND LOSSES | 11 |
SECTION 6.1. Allocations | 11 | |||
(a) General Tax Allocations |
11 | |||
(b) Special Allocations |
12 | |||
SECTION 6.2. Tax Items | 13 | |||
SECTION 6.3. Partial Year Allocations | 13 | |||
SECTION 6.4. Allocations and Distributions | 13 |
ARTICLE VII |
CALLABLE INTEREST AND PUTABLE INTEREST | 14 |
SECTION 7.1. Callable Interest | 14 | |||
SECTION 7.2. Call Notice | 14 | |||
SECTION 7.3. Call Purchase Price | 14 | |||
SECTION 7.4. Putable Interest; Put Notice; Put Purchase Price | 14 | |||
SECTION 7.5. Call/Put Closing | 14 | |||
SECTION 7.6. Transfer of Interest in Partnership | 15 | |||
SECTION 7.7. Repayment of Loans | 16 |
ARTICLE VIII |
STATUS OF LIMITED PARTNER | 16 |
SECTION 8.1. Partnership Management | 16 | |||
SECTION 8.2. Interest in the General Partner’s Assets | 16 | |||
SECTION 8.3. Limited Liability | 16 | |||
SECTION 8.4. No Right of Partition | 16 | |||
SECTION 8.5. Withdrawal; No Dissolution | 16 | |||
SECTION 8.6. GAAP Reports to the Limited Partner | 17 |
ARTICLE IX |
POWER, RIGHTS AND DUTIES OF THE GENERAL PARTNER | 17 |
SECTION 9.1. Powers of General Partner | 17 | |||
SECTION 9.2. Limitations on General Partner | 19 | |||
SECTION 9.3. Additional Limitations on General Partner | 20 | |||
SECTION 9.4. Tax Matters | 20 | |||
SECTION 9.5. Indemnification | 21 | |||
SECTION 9.6. Other Business Interests | 22 | |||
SECTION 9.7. Transactions With Affiliates | 23 | |||
SECTION 9.8. Liability | 24 | |||
SECTION 9.9. Withdrawal of General Partner | 24 | |||
SECTION 9.10. 754 Election | 24 | |||
SECTION 9.11. Compensation and Reimbursement of General Partner | 24 | |||
SECTION 9.12. General Partner Services | 24 | |||
SECTION 9.13. Deadlock | 25 |
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ARTICLE X |
TRANSFER OF PARTNERSHIP INTERESTS: ADMISSION OF PARTNERS | 25 |
SECTION 10.1. Transfer Restrictions | 25 | |||
SECTION 10.2. Encumbrances | 25 | |||
SECTION 10.3. Acceptance of Transfer: Substituted Limited Partner | 25 |
ARTICLE XI |
DISSOLUTION OF THE PARTNERSHIP | 26 |
ARTICLE XII |
ADDITIONAL PROVISIONS CONCERNING DISSOLUTION OF THE PARTNERSHIP | 26 |
SECTION 12.1. Liquidating Committee | 26 | |||
SECTION 12.2. Distributions on Liquidation | 26 | |||
SECTION 12.3. Liquidation | 27 | |||
SECTION 12.4. Return of Capital | 27 | |||
SECTION 12.5. Certificate of Cancellation | 27 |
ARTICLE XIII |
AMENDMENT OF AGREEMENT | 27 |
SECTION 13.1. Certificate of Limited Partnership | 27 |
ARTICLE XIV |
MISCELLANEOUS | 27 |
SECTION 14.1. Delivery of Documents | 27 | |||
SECTION 14.2. Applicable Law | 28 | |||
SECTION 14.3. Successors and Assigns | 28 | |||
SECTION 14.4. Gender | 28 | |||
SECTION 14.5. Headings | 28 | |||
SECTION 14.6. Severability | 28 | |||
SECTION 14.7. Counterparts | 28 | |||
SECTION 14.8. Entire Agreement | 28 | |||
SECTION 14.9. Third Parties | 28 | |||
SECTION 14.10. Title to Partnership Assets | 28 | |||
SECTION 14.11. Notices | 29 | |||
SECTION 14.12. Consent | 29 | |||
SECTION 14.13. Dispute Resolution | 29 | |||
Schedule A | A-1 | |||
Schedule B | B-1 |
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AGREEMENT OF LIMITED PARTNERSHIP
OF
JB/UNIVERSAL CITY RESTAURANT PARTNERS, L.P.,
a Delaware Limited Partnership
AGREEMENT OF LIMITED PARTNERSHIP (this “Partnership Agreement”), made and entered into as of the 11th day of September, 1997 between UNIVERSAL CITY DEVELOPMENT PARTNERS, a Florida general partnership, as the limited partner (the “Limited Partner”) and MARGARITAVILLE HOLDINGS LLC, a Delaware limited liability company, as the general partner (the “General Partner”).
ARTICLE I
SECTION 1.1. Formation. The parties hereby enter into a limited partnership (the “Partnership”) under the provisions of the Revised Uniform Limited Partnership Act of the State of Delaware 6 Del. C. ss. 17-201 et seq. (the “Act”), and the rights and liabilities of the Partners (as defined herein) shall be as provided in such Act except as herein otherwise expressly provided. A Certificate of Limited Partnership and other required documents shall have been or shall be filed and recorded in the appropriate offices and places as are required by law.
SECTION 1.6. Principal Place of Business: Registered Agent. The principal place of business of the Partnership initially shall be 00 Xxxxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000. The address of the Partnership’s registered office and the address of its registered agent in the State of Delaware is 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000. The name of the Partnership’s registered agent at such address is Corporation Trust Company. The General Partner may change the principal place of business of the Partnership or its registered agent at
any time and from time to time and, in such events, the General Partner shall notify the Limited Partner in writing of such change. The General Partner may in its sole discretion establish additional places of business for the Partnership.
ARTICLE II
“Act” shall have the meaning ascribed to such term in Section 1 hereof.
“Actual Development Costs” shall have the meaning ascribed to such term in Section 3.1 hereof.
“Additional Capital Contribution” shall have the meaning ascribed to such term in Section 3.2 hereof.
“Affiliate” when used with respect to any Person, means any other Person directly or indirectly Controlling, Controlled by, or under common Control with such Person.
The terms “Affiliate” or “Affiliates,” when used to define a class of Persons that is related to a party to this Partnership Agreement (the “First Party”), shall not include any other party to this Partnership Agreement or any Affiliate of such party (collectively, the “Other Party”) to the extent that this Partnership Agreement and the other Operative Documents would otherwise cause such Other Party to be an Affiliate of the First Party.
“Approved Business Plan” shall have the meaning ascribed to such term in Section 3.1 hereof.
“Buffett” shall mean Xxxxx Xxxxxxx, a natural Person.
“Buffett Intellectual Property” shall mean that intellectual property licensed to the Partnership pursuant to the License Agreement.
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“Buffett Memorabilia” shall mean that certain memorabilia loaned to the Partnership pursuant to Exhibit E of the Lease.
“Callable Interest” shall have the meaning ascribed to such term in Section 7.1 hereof.
“Call Exercise Period” means the period, if any, from Universal’s date of receipt of the Call Notice to and through the Closing Date.
“Call Notice” shall have the meaning ascribed to such term in Section 7.2 hereof.
“Call Notice Period” means the period from the first anniversary of the opening of the Venue to and through forty-five (45) days after the later of (a) the first anniversary of the opening of the Venue, (b) the first anniversary of Substantial Completion of CityWalk or (c) ninety (90) days after Universal’s “Islands of Adventure” project opens for business to the general public.
“Call Purchase Price” shall have the meaning ascribed to such term in Section 7.3 hereof.
“Capital Account” shall have the meaning ascribed to such term in Section 3.3 hereof.
“Capital Contribution” means, with respect to each Partner, the amount specified on Schedule A as the Initial Capital Contribution plus any Additional Capital Contribution made by such Partner.
“CityWalk” means the “Project” as defined in the Lease.
“Closing” shall have the meaning ascribed to such term in Section 7.5 hereof.
“Closing Date” shall have the meaning ascribed to such term in Section 7.5 hereof.
“Code” means the Internal Revenue Code of 1986, as amended, including effective date and transition rules (whether or not codified), and any successor thereto. Any reference to a specific section or sections of the Code shall be deemed to include a reference to any corresponding provision of succeeding law.
“Control” (including the terms “controlling,” and “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Deficit” shall mean negative cash flow from operations of the Venue on or after the Opening of the Venue.
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“Development Budget” shall have the meaning ascribed to such term in Section 3.1 hereof.
“Distributable Cash” means, with respect to the applicable period of time, the net amount of (i) all cash receipts from all sources arising out of the Partnership’s operations during such period, excluding proceeds from indebtedness of the Partnership, the issuance of additional Partnership Interests for cash or Capital Contributions to the Partnership, (ii) adjusted proportionately by any increases or decreases in any reserve funds pursuant to the Management Agreement and (iii) further decreased by all cash disbursements of the Partnership during such period of time, including without limitation, distributions to Partners, disbursements made in connection with operational expenses, debt service (including the payment of principal and interest), payments pursuant to the Lease, management fees, and licensing payments (pursuant to the License Agreement).
“Final Determination” means with respect to an Internal Revenue Service audit or state taxing authority audit when (a) there is a decision, judgment, decree or other order by any court of competent jurisdiction, which decision, judgment, decree or other order has become final, i.e., all allowable appeals (other than an appeal to the United States Supreme Court) pursued by the Partnership or the Partners have been exhausted by either party to the action, (b) there is a closing agreement made under Section 7121 of the Code (or similar provision under state law), or (c) the time for instituting a claim for refund has expired, or if a claim was filed, the time for instituting suit with respect thereto has expired.
“GAAP” means generally accepted accounting principles in effect in the United States of America from time to time.
“General Partner” means Margaritaville Holdings LLC, a Delaware limited liability company, any successor party admitted as a substitute general partner, or any party admitted as an additional general partner; provided however, if a deadlock arises with respect to a decision to be made by multiple general partners, then the provisions of Section 9.14 shall govern.
“Initial Capital Contribution” shall have the meaning ascribed to such term in Section 3.1 hereof.
“Initial General Partner” means Margaritaville Holdings LLC, a Delaware limited liability company.
“Investment” shall have the meaning ascribed to such term in Section 7.3 hereof.
“Lease” means that certain CityWalk Lease Agreement of even date herewith by and between the Partnership and Universal.
“License Agreement” means that certain License Agreement of even date herewith between the Partnership and Buffett.
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“Limited Partner” means Universal City Development Partners, a Florida general partnership, and any party who is accepted by the General Partner as a substitute Limited Partner, including, without limitation, pursuant to Article X hereof.
“Management Agreement” means that certain Management Agreement of even date herewith by and between the Partnership and Universal.
“Manager” means Universal while Universal is engaged to manage the Venue.
“Note” means that certain Promissory Note and Security Agreement of even date herewith in the original principal amount of $602,100, executed by General Partner in favor of Universal.
“Operative Documents” includes, but is not limited to, the Lease, the License Agreement, the Management Agreement, the Note and this Partnership Agreement.
“Net Profits” and “Net Losses” mean the Partnership’s taxable income or loss determined in accordance with Code Section 703(a) for each of its fiscal years or portions thereof (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Code Section 703(a)(1) will be included in taxable income or loss) with the following adjustments: (i) such Net Profits and Net Losses will be computed as if items of tax-exempt income and nondeductible, noncapital expenditures (under Code Section 705(a)(1)(B) and 705(a)(2)(B)) were included in the computation of taxable income or loss; (ii) that any items of income, gain, loss or deduction specially allocated pursuant to Section 6.1(b) hereof shall not be taken into account in computing Net Profits or Net Losses; (iii) if any Partner contributes property to the Partnership with an initial book value to the Partnership different from its adjusted basis for federal income tax purposes to the Partnership, or if Partnership property is revalued in accordance with Treasury Regulations ss. 1.704-1(b)(2)(iv)(f) or as otherwise required by the Regulations, Net Profits and Net Losses will be computed as if the initial adjusted basis for federal income tax purposes to the Partnership of such contributed or revalued property equaled its initial book value to the Partnership as of the date of contribution or revaluation; and (iv) as a result of a Tax Decision, credits or debits to Capital Accounts due to a revaluation of Partnership assets in accordance with Treasury Regulations ss. 1.704-1(b)(2)(iv)(f), or due to a distribution of noncash assets as provided in Article 12 hereof, will be taken into account as gain or loss from the disposition of such assets for purposes of computing Net Profits and Net Losses.
“Participating Percentage” shall have the meaning ascribed to such term under Article IV hereof.
“Partners” means the General Partner and the Limited Partner.
“Partnership” means the limited partnership formed pursuant to this Partnership Agreement by the parties hereto, as such partnership may from time to time be constituted.
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“Partnership Interest” means with respect to each Partner, the Partner’s entire ownership interest in the Partnership acquired by such Partner pursuant to the terms hereof, including such Partner’s Participating Percentage and the right of such Partner to any and all benefits to which it may be entitled as provided under this Agreement or in the Act, together with the obligation of such Partner to comply with all the terms hereof.
“Person” means any natural person or any corporation, association, partnership, limited liability company, joint venture, company, business trust, organization, business or government or any governmental agency or political subdivision of any government.
“Proceeding” shall have the meaning ascribed to such term in Section 9.3.
“Put Notice” shall have the meaning ascribed to such term in Section 7.4 hereof.
“Putable Interest” shall have the meaning ascribed to such term in Section 7.4 hereof.
“Put Notice Period” shall have the meaning ascribed to such term in Section 7.4 hereof.
“Put Purchase Price” shall have the meaning ascribed to such term in Section 7.4 hereof.
“Restricted Transferee” shall mean one of the following described entities or its Affiliate: The Xxxx Disney Company; The Anheuser-Xxxxx Company; and any other entity which owns, holds or effectively Controls an equity interest of at least thirty percent (30%) in a destination theme park, which shall mean any gated theme park (or entertainment complex attached to such theme park) in the State of Florida that has an annual attendance of at least five hundred thousand (500,000) customers.
“Substantial Completion” shall mean the initial opening for business to the general public at CityWalk of at least five of the eight venues listed below or their replacements:
Nascar Cafe
Emeril’s
Marvelmania
Jazz Club
Marley’s
Motown Cafe
Xxx X’Xxxxx’x
Dance Club
“Tax Decisions” shall mean the determination: (a) based on advice of counsel, to amend the provisions of this Agreement to the minimum extent necessary to ensure that the allocations set forth in Article VI hereof for federal income tax and Capital Account purposes are respected by the Internal Revenue Service and otherwise remain in compliance with applicable law; (b) to make any election under the Code on behalf of the Partnership other than the election under
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Code Section 754 which shall be made pursuant to the provisions of Section 9.10; (c) to change the accounting method or fiscal year of the Partnership for tax purposes; (d) to cause a revaluation of the Partnership’s assets upon the occurrence of various events, consistent with Treasury Regulations ss. 1.704-1(b)(2)(iv)(f); (e) the determination of the fair market value of noncash property of the Partnership whether pursuant to a revaluation of Partnership assets under Treasury Regulation ss. 1.704-1(b)(2)(iv)(f) or for purposes of an in-kind current distribution or in-kind liquidating distribution, including the liquidation of the Partnership within the meaning of Treasury Regulation ss. 1.704-1(b)(2)(ii)(g); (f) based on advice of counsel, to amend the provisions of this Agreement in order to maintain the status of the Partnership as a “partnership” for federal income tax purposes; and (g) of any other matter relating to the Partnership’s tax accounting methods, positions or other tax return issues other than any allocation of taxable income and loss which is not specifically provided for in this Agreement.
“Transfer” means any sale, disposition, assignment, pledge, hypothecation, redemption, encumbrance or other transfer of any Partnership Interest.
“Universal” shall mean Limited Partner or an Affiliate of Limited Partner if such Person becomes a successor Limited Partner.
“Venue” means the combined restaurant, nightclub and retail project in Orlando, Florida at Universal City Development Partners’ retail/entertainment project known as City Walk to be operated by the Partnership as a “Xxxxx Xxxxxxx’x Margaritaville Cafe,” including any fixtures, improvements and personal property that are part of such project that the Partnership constructs on the Leased Property, but excluding Buffett Memorabilia and Buffett Intellectual Property.
ARTICLE III
SECTION 3.1. Initial Capital Contributions. From time to time, as required to fund the costs incurred in connection with the design, construction and start-up of a turnkey facility to be operated as the Venue, Universal shall be liable to make an initial capital contribution (the “Initial Capital Contribution”), of approximately $8,700,000. In the event it is determined during the build-out of the Venue that the amount of the Development Budget will likely be exceeded, General Partner and Universal agree to endeavor in good faith to “value engineer” the build-out of the Venue so as to restore compliance with the Development Budget. In the further event that such “value engineering” process does not achieve compliance with the Development Budget, the Development Budget shall be adjusted to reflect the increased costs, and Universal shall fund such increased costs as part of its Initial Capital Contribution. The Initial Capital Contribution pursuant to the Development Budget shall be comprised of payments made by Universal on behalf of the Partnership or deposited into the Partnership bank account. The parties expressly agree that the General Partner has not made, nor will the General Partner be required to make, contemporaneously with the execution hereof, or thereafter, any Initial Capital Contribution or Additional Capital Contributions to the Partnership. Instead, the General Partner’s Participating Percentages as set forth in Article IV hereof reflect the issuance to the
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General Partner of a “profits interest” for its agreement to perform future services for the Partnership including without limitation, the services described in Section 9.12 hereof.
The Partners expressly agree that Universal’s funding of its Initial Capital Contribution shall be made in accordance with the following procedure. Universal shall submit to the General Partner a proposal for the development of the Venue. Such proposal shall include a construction budget, detailed architectural plans and specifications, detailed design plans and specifications, a site development plan, proposed architectural, design and construction contracts, a working capital budget, pro forma operating statements and such other documents, statements and information as may be reasonably requested by the General Partner in connection with the development of the Venue. The General Partner shall have the right to approve or reject the proposal in its reasonable discretion. Upon their mutual approval of the proposal, the Partners shall execute an itemized statement, which statement shall provide a detailed breakdown of the total development costs, pre-opening costs, commissioning and working capital required for the development of the Venue from inception through the opening date of the Venue (such itemized statement, the “Development Budget”).
Concurrently with the above, Universal shall submit to the General Partner an initial written business plan which shall set forth in reasonable detail the proposed operation of the Venue. The General Partner shall have the right to approve or reject such business plan in its reasonable discretion. Upon their mutual approval of the business plan, the Partnership shall adopt such business plan as the “Approved Business Plan”. The General Partner shall keep originally-executed copies of the Development Budget and the Approved Business Plan with the books and records of the Partnership.
As soon as practicable after the opening date of the Venue, but in no event later than 270 days after such opening date, Universal shall deliver to the General Partner an itemized statement, in form and substance reasonably satisfactory to the General Partner, prepared in accordance with GAAP by independent certified public accountants for the Partnership and certified by Universal as to truth and accuracy to the best of Universal’s knowledge and belief after good faith investigation, which statement shall reflect the aggregate actual development costs for the Venue (the “Actual Development Costs”). The General Partner shall have the right to independently audit the accuracy of Universal’s statement of Actual Development Costs. Unless the Partners agree otherwise, any additional amounts that Universal may pay to fund the Actual Development Costs in excess of the Development Budget shall be treated as part of the Initial Capital Contribution.
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ARTICLE IV
The interests of each of the Partners in the Partnership (each Partner’s interest, respectively, a “Participating Percentage”) shall be determined in accordance with the following:
SECTION 4.1. Universal 50%/General Partner 50%. During the period from the date hereof until such time as an event either occurs or does not occur as specified in Sections 4.2, 4.3, 4.4 or 4.5 of this Agreement occurs, Universal and the General Partner shall each have a Participating Percentage of 50%.
SECTION 4.2. Universal 70%/General Partner 30%. If the Partnership does not redeem the Callable Interest during the Call Exercise Period in accordance with Section 7.5, then upon the expiration of the Call Exercise Period, Universal shall have a Participating Percentage of 70% and the General Partner shall have a Participating Percentage of 30%.
SECTION 4.3. Universal 25%/General Partner 75%. If (i) the Partnership redeems the Callable Interest during the Call Exercise Period in accordance with Section 7.5, and (ii) Universal fails to have the Putable Interest redeemed as of the Closing Date in accordance with Section 7.4 then, immediately after the Closing Date, Universal shall have a Participating Percentage of 25% and the General Partner shall have a Participating Percentage of 75%.
SECTION 4.4. Universal Less Than 25%/General Partner Greater Than 75%. If (i) the Partnership redeems the Callable Interest during the Call Exercise Period in accordance with Section 7.5, and (ii) Universal has a portion but not all of the Putable Interest redeemed by the Closing Date pursuant to Section 7.4, then immediately after the Closing Date, Universal shall have a Participating Percentage equal to the difference between 25% and the Putable Interest so redeemed and the General Partner shall have a Participating Percentage equal to the sum of 75% and the Putable Interest so redeemed.
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ARTICLE V
ARTICLE VI
ALLOCATIONS OF PROFITS AND LOSSES
(i) Net Profits shall first be allocated to the Partners in the same amount as Net Losses were allocated to such Persons pursuant to Section
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6.1(a)(ii) hereof until the cumulative Net Profits allocated pursuant to this Section 6.l(a)(i) are equal to the total get Losses allocated to such Persons for all prior periods and, thereafter, Net Profits shall be allocated to the Partners in accordance with their Participating Percentages with respect to such fiscal year; and
(ii) Net Losses shall first be allocated to the Partners in accordance with their Participating Percentages; provided, however, that any losses in excess of the losses allowable to General Partner pursuant to the Treasury Regulations promulgated under Code Section 704(b) shall be allocated to Universal; provided, however, the General Partner shall have the right exercisable in its sole and absolute discretion to amend this Partnership Agreement from time to time to reflect the imposition on the General Partner (but not on Universal) of a limited deficit Capital Account restoration obligation within the meaning of Treasury Regulation ss.1.704-1(b)(2)(ii)(c).
(i) In accordance with the ordering rules of Treasury Regulation ss. 1.704-2(j), items of gross income and realized gain first shall be allocated in an amount and in a manner that complies with the “chargeback” requirement of Treasury Regulation ss.1.704-2(i)(4), the “qualified income offset” requirement of Treasury Regulation ss. 1.704-1(b)(2)(ii)(d), and the “minimum gain chargeback” requirement of Treasury Regulation ss. 1.704-2(f). Further, any “partner nonrecourse deductions” within the meaning of Treasury Regulation ss.1.704-2(i)(2) attributable to “partner nonrecourse debt” shall be allocated to the Partner who bears the “economic risk of loss” for such debt in accordance with Treasury Regulation ss.1.704-2(i).
(ii) If a taxing authority ignores the characterization of any amounts paid to a Partner (or an Affiliate thereof) as salaries, fees, expense reimbursements, commissions or other compensation for services (“Compensation”), and refuses to treat such payments as either guaranteed payments within the meaning of Code Section 707(c) or payments made to such Partner other than in such Partner’s capacity as a Partner within the meaning of Code Section 707(a), and such taxing authority ultimately treats such amounts paid to a Partner (or an Affiliate thereto) as a distribution to such Partner for federal income tax purposes which reduces such Partner’s Capital Account, then the Compensation shall be treated as an allocation of an item of income or gain of the Partnership to the recipient Partner so that, consistent with the intent of the Partners, the Compensation shall not be treated as a distribution which reduces
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the recipient Partner’s Capital Account. Accordingly, such Partner shall be allocated the first available items of Partnership income and gain (including in a succeeding year) in an amount equal to the Compensation.
(iii) If the Partnership owns (a) any property contributed by a Partner that had a fair market value different from its adjusted basis for federal income tax purposes on the date of the contribution, or (b) any property that has been revalued pursuant to Treasury Regulation ss. 1.704-1(b)(2)(iv)(f), then for federal income tax purposes only and not for Capital Account purposes, any income, gain, loss or deduction with respect to such property shall be allocated among the Partners in accordance with Code Section 704(c) and the Treasury Regulations thereunder, using the “traditional method.”
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ARTICLE VII
CALLABLE INTEREST AND PUTABLE INTEREST
If a Put Notice is delivered, then at the Closing, the General Partner shall in the case of a Section 736 redemption, at its sole election either (A) make an Additional Capital Contribution to the Partnership in immediately available funds, the amount of which shall equal the Call Purchase Price and the Put Purchase Price or (B) cause the Partnership to borrow an amount of
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money sufficient to satisfy the Partnership’s obligations under this Article VII on such terms and conditions as the General Partner in its sole discretion shall determine, equal to the sum of the Call Purchase Price and the Put Purchase Price, as applicable. If a Put Notice is not delivered, then at the Closing the General Partner shall make an Additional Capital Contribution to the Partnership in immediately available funds, the amount of which shall equal the Call Purchase Price. Simultaneously with such funding of an Additional Capital Contribution, the Partnership or the General Partner (or its assignee) as the case may be, shall tender the Call Purchase Price, and if applicable, the Put Purchase Price, to Universal in immediately available funds, and in exchange, Universal shall comply with Section 7.6 hereof.
In the case of a Section 736 liquidation of the Limited Partner’s Partnership Interest, as a condition to receipt by the Limited Partner of the Call Purchase Price and, if applicable, the Put Purchase Price, in the case of the liquidation of Universal’s Partnership Interest, the General Partner and the Limited Partner expressly agree that such transaction shall be treated as a complete liquidation of the Limited Partner’s Partnership Interest pursuant to Section 736 of the Code. The Limited Partner expressly agrees and acknowledges that the Call Purchase Price and, if applicable, the Put Purchase Price, in cash distributed to the Limited Partner shall be treated as a payment in liquidation under Section 736(b) of the Code to the extent of the fair market value of the Limited Partner’s “interest in Partnership property” within the meaning of Section 736 of the Code and the excess, if any, shall be treated as a Section 707(c) “guaranteed payment” under Section 736(a) of the Code. The General Partner and the Limited Partner acknowledge and agree that the redemption price at which the Partnership can acquire the Limited Partner’s Partnership Interest as a Limited Partner (and which will not be equal to its Capital Account balance) has been agreed upon based on arm’s length negotiations as described in the second paragraph of Treasury Regulation ss. 1.704-1(b)(2)(ii)(b)(3). Further, as a further condition to the receipt by the Limited Partner of the Call Purchase Price and Put Purchase Price, the General Partner agrees to execute a written agreement with respect to the redemption which shall include a written undertaking by the Limited Partner to deliver such other instruments, agreements or other documents as the Partnership may reasonably deem necessary to evidence the liquidation of the Limited Partner’s Partnership Interest. Finally, the Limited Partner also agrees and acknowledges that under this liquidation of Partnership Interest option, simultaneously with the Closing, there may be admitted as Partners one or more Persons as the General Partner shall approve, with the terms and conditions of such Partnership Interests as the General Partner and such one or more Persons shall mutually agree upon. The Limited Partner hereby consents to the amendment of this Partnership Agreement, including Schedule A, and the related documents, if necessary, under the Act, to reflect the liquidation of its Partnership Interest and, if applicable, the admission of additional Partners.
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ARTICLE VIII
SECTION 8.2. Interest in the General Partner’s Assets. The Limited Partner shall have no interest in the properties or assets of the General Partner or in any proceeds of any activities or sales thereof (which sales shall not be restricted in any respect, except as set forth herein) by virtue of acquiring or owning interests in the Partnership or otherwise.
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Partnership shall continue as a limited partnership. Notwithstanding the foregoing, the transferor of such Partnership Interest shall not be released from liability to the Partnership for any materially false statement made, or caused to be made, by such transferor in the Certificate of Limited Partnership. In no event shall such successor-in-interest become the substituted Limited Partner, except in accordance with Article X hereof.
SECTION 8.6. GAAP Reports to the Limited Partner. The General Partner will furnish the Limited Partner with audited annual financial statements of the Partnership prepared by the independent certified public accountants for the Partnership.
ARTICLE IX
POWER, RIGHTS AND DUTIES OF THE GENERAL PARTNER
(a) to acquire, directly or indirectly, for investment and to hold, maintain, sell, convey, and dispose of the personal property of the Partnership in the ordinary course of business;
(b) to cause the Partnership to purchase or lease personal property from, or sell or lease personal property to, the General Partner or any of its Affiliates for any Partnership purpose;
(c) to cause the Partnership to (i) redeem the Callable Interest or to redeem the Putable Interest; (ii) amend Schedule A hereto to reflect the change in Participating Percentages of the Partners pursuant to Articles IV, VII and XI hereof; and (iii) take all other actions described in Article VII to effectuate the redemption of the Callable Interest and the Putable Interest;
(d) to execute all documents and do all things necessary in connection with the acquisition, maintenance, operation, or improvement of the Partnership’s assets or reasonable or necessary in connection with Partnership business;
(e) to employ or engage on behalf of the Partnership such Persons, as, in the General Partner’s exclusive discretion or judgment, may be deemed advisable for the proper operation of the business of the Partnership, upon such terms and for such compensation as the General Partner shall determine necessary or appropriate provided, however, that, as a condition to any such employment or engagement of an Affiliate of the General Partner, no Affiliate so employed or engaged may seek recourse against the Distributable Cash of Universal;
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(f) to make, execute, acknowledge, and deliver such certificates, instruments, and documents as may be required by, or may be appropriate under, the laws of the States of Delaware, Florida and elsewhere, if applicable, in connection with the use of the name of the Partnership by the Partnership;
(g) to make, file, or record with the appropriate public authority and, if required, publish the certificate, any amendments thereof, and such other certificates, instruments, and documents as may be required or appropriate in connection with the business and affairs of the Partnership;
(h) to establish and maintain reserves for such purposes and in such amounts as the manager reasonably determines from time to time;
(i) to pay, extend, renew, modify, adjust, submit to arbitration, prosecute, defend, or compromise, upon such terms as it may determine and upon such evidence as the General Partner may deem sufficient, any obligation, suit, liability, cause of action, or claim, including taxes, either in favor of or against the Partnership;
(j) to reimburse the General Partner or its Affiliates for expenses incurred in connection with the Partnership’s business, in accordance with Section 9.11;
(k) to acquire and enter into any contract of insurance which the General Partner reasonably deems necessary and proper for the protection of the Partnership and the General Partner, for the protection of the Venue or any other assets of the Partnership, for the protection of the Partners or their Affiliates, or for any purpose beneficial to the Partnership;
(l) to employ attorneys and accountants on behalf of the Partnership;
(m) to pay, collect, compromise, arbitrate, resort to legal action for, or otherwise adjust claims or demands of or against the Partnership;
(n) in addition to the specific rights and powers herein granted to engage in any activities necessary or incidental to the accomplishment of any of the purposes and business which the Partnership was formed to conduct the General Partner shall possess and may enjoy and exercise all of the rights and powers of “general partners”, as are more particularly provided by the Act, except to the extent any of such rights may be limited or restricted by the express provisions of this Agreement;
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(o) in accordance with the terms of the Management Agreement, to terminate the Manager, if necessary, and engage the services of another manager which can at the sole discretion of the General Partner be the General Partner or its employees;
(p) to take any action required under the Management Agreement;
(q) to require in all Partnership contracts that the General Partner, Universal and their Affiliates shall have no personal liability thereon but that the Person contracting with the Partnership shall look solely to the Partnership and its assets for satisfaction; and
(r) to borrow the “Financed Amount” (as defined in Section 19.2B of the Lease).
(a) perform or refrain from performing any act (i) which does not preserve the economic benefit to Universal of the distribution of Distributable Cash as contemplated in Article V hereof; or (ii) which increases any liabilities of Universal as Limited Partner to the Partnership or the General Partner in a manner not contemplated in this Agreement as of the date hereof;
(b) change the purposes of the Partnership as set forth in Section 1.3;
(c) unless the Call Purchase Price has been paid, amend the Approved Business Plan;
(d) unless the Call Purchase Price has been paid, cause the Partnership to incur any expenses other than expenses incurred by the Manager on behalf of the Partnership or reasonable expenses incurred in connection with (i) ministerial filings required to maintain limited partnership status, (ii) the preparation and filing of Partnership income tax returns, (iii) income tax audits, (iv) all payments required of Licensee under the License Agreement and (v) the approved Development Budget as contemplated in the Management Agreement;
(e) unless the Call Purchase Price has been paid, amend Sections 3.1, 3.2, 6.1, 6.4, 8.3, 9.1(e), 9.2, 9.4, 9.6, 9.11, 9.12, 10.1, 12.2, 14.10 or 14.12 or Articles IV, V or VII;
(f) unless the Call Purchase Price has been paid (and for a period of 366 days following payment of such Call Purchase Price), cause a petition under any Chapter of Title 11 of the United States Code or any similar law or regulation to be filed by or against the Partnership; cause a custodian, receiver or trustee to be appointed for the Partnership; or make an assignment for the benefit of creditors with respect to the Partnership; or
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(g) issue additional interests in the Partnership or admit additional Partners in a manner which would dilute the interest of Universal.
(a) The General Partner shall retain independent certified public accountants to prepare and timely file the Partnership’s income tax return. Universal shall have the right to review and provide comments to the Partnership’s federal and state income tax returns for any Fiscal year (or portion thereof) prior to the filing of such income tax returns by the Partnership. The Partnership’s accountants shall deliver a draft copy of the Partnership’s federal and state income tax returns to Universal for its review at least thirty (30) days prior to the date that the Partnership is required to file such tax returns.
(b) The General Partner will use its reasonable best efforts to furnish Universal with the information as to its distributive share of the Partnership’s Net Profits, Net Losses and other items of income, gain, loss, and deduction, as well as all other tax information, which will be sufficient for Universal to prepare its own federal and state income tax returns, not later than ninety (90) days following the close of each fiscal year (or portion thereof).
(c) The General Partner shall have the right to make tax elections under the Code (or state and local tax law) on behalf of the Partnership except any decision which would result in an allocation of items of income or loss other than in accordance with the Partners’ Participating Percentages can be made only with Universal’s consent.
(d) The General Partner as the Initial General Partner of the Partnership, is hereby designated as the “tax matters partner” of the Partnership for federal income tax purposes (and shall hold such position for only so long as the Initial General Partner is a “general partner” of the Partnership under the Act). As such, the tax matters partner is authorized, but not required, to take any action (including the incurring of expenses with respect to such matters) on behalf of the Partnership or its Partners in connection with any tax audit or judicial review proceedings to the extent permitted by the Code in the General Partner’s sole discretion, provided, however, that actions to be taken by the
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General Partner as the tax matters partner which may affect any allocation of taxable income or loss to Universal or which may have a tax impact of greater than $5,000 on Universal shall only be made with the written consent of Universal as a Partner. The tax matters partner shall receive no compensation for its services. Nothing herein shall be construed to restrict the Partnership from engaging an accounting firm to assist the tax matters partner in discharging its duties hereunder, so long as the compensation paid by the Partnership for such services is reasonable.
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SECTION 9.6. Other Business Interests.
(a) Each of Universal, the General Partner, their respective Affiliates and each of their respective stockholders, directors, officers, controlling persons, partners and employees may have business interests and engage in business activities in addition to those relating to the Partnership. Neither the Partnership nor any Partner shall have any rights by virtue of this Partnership Agreement or the partnership relationship created hereby in any such business interests or activities of any such Person. The General Partner shall devote to the management of the Partnership only such time as it determines is necessary or appropriate to cause the affairs of the Partnership to be conducted in an efficient and businesslike manner.
(b) Subject to Section 9.6(d), neither the General Partner, the Limited Partner, nor any of their respective affiliates shall be obligated to present any particular investment or business opportunity to the Partnership even if the opportunity is of a character which, if presented to the Partnership, could be undertaken by the Partnership (unless such party is subject to a separate non-competition agreement or similar arrangement). The General Partner, the Limited Partner and any of their respective affiliates shall each have the right to undertake any such opportunity for itself for its own account or on behalf of another or to recommend any such opportunity to other persons or entities.
(c) Except as limited by Section 9.6(d) below, Universal (after consultation with counsel) hereby waives to the maximum extent permitted under the Act and any other applicable law any and all rights it might otherwise have to do any of the following: (i) to object to the involvement of the General Partner, directly or indirectly through any other Person, in any form of business undertaking which may be deemed competitive with the business of the Venue; and (ii) to object to the specifically enumerated matters set forth below including, without limitation, the Future Transaction. Universal expressly acknowledges an awareness of, and agrees to cooperate with the General Partner to facilitate the consummation of the General Partner’s plans to engage in a roll-out business combination, sale of assets, sale of interests or otherwise engage in an initial public offering relating to Xxxxx Xxxxxxx’x Margaritaville restaurants (collectively, the “Future Transaction”). In this regard, Universal expressly agrees that it shall not take any action to prevent, delay or frustrate the General Partner’s proposed plans to effectuate the Future Transaction. If the General Partner proposes to Transfer all or a portion of its Partnership interest to a proposed third party transferee in an arms-length transaction, neither Universal nor any other Partner shall have any right to require the General Partner to cause (a “Bring Along Right”) such proposed transferee to also purchase all or a portion of such remaining Partner’s Partnership Interest, at the same
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time and on the same terms, consideration (on a Participating Percentage basis) and conditions at which the General Partner is selling its Partnership Interest.
(d) Notwithstanding the foregoing, the General Partner hereby agrees that neither the General Partner nor any of its Affiliates shall, during the Term of the Lease, develop a Xxxxx Xxxxxxx’x Margaritaville’s restaurant, or a restaurant, nightclub or other venue primarily for food or beverage (“Restaurant”) (i) within a 150 mile radius of the Venue or (ii) in any gated-attraction theme park (or entertainment complex attached to a theme park) in the State of Florida that has an annual attendance of at least 500,000 customers.
Moreover, during the term of the Lease, if the General Partner, or any of its Affiliates, proposes to establish a Restaurant within a 100 mile radius of any then-existing gated-theme park with an annual attendance of at least 500,000 or City Walk development owned by Universal or its Affiliates (the “Competitive Radius”) and such proposed Restaurant is to be located in an area other than Charleston, South Carolina, then Universal shall have the right (the “Right of First Refusal”) to require the General Partner to provide Universal with the same terms and conditions for establishing such Restaurant as the General Partner may have offered to other non-affiliated third parties. The Right of First Refusal shall be exercised on terms comparable to those of the Venue, competitive in the relevant market and remain in force for as long as the Lease remains in effect. If Universal fails to exercise its Right of First Refusal within ninety (90) days, the General Partner, or any of its Affiliates, may develop a Restaurant within the Competitive Radius, provided, however, that the General Partner, or its Affiliates, if applicable, agrees not to build a Restaurant at a theme park owned or controlled by The Xxxx Disney Company or its Affiliates.
If, during the Term of the Lease or Partnership, the General Partner or any of its Affiliates proposes to enter into an agreement with an unaffiliated third party for the purpose of utilizing Buffett’s intellectual property in any of the businesses in which Universal or its parent(s) and Affiliates actively engages the General Partner will discuss with Universal and its parent(s) in good faith such business opportunities, except for ventures in Charleston, South Carolina, in order to have meaningful discussions before the General Partner makes a final decision as to whether to conduct such business with Universal and its parent(s) or the third party; provided that the General Partner shall not be obligated to negotiate with Universal and its parent(s) or to accept Universal and its parents(s)’ proposal; and further provided that this sentence shall not apply to any proposal that is submitted to the General Partner by a third party on the condition that such proposal is confidential or may not be shopped. The businesses in which Universal and its parent(s) and Affiliates engage are identified in Schedule B and supplemented from time to time by Universal or its parent(s) and Affiliates.
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render services to the Partnership. The validity of any action, agreement or payment involving the Partnership and any Affiliate of the General Partner otherwise permitted by the terms of this Partnership Agreement shall not be affected by reason of the relationship between the General Partner and such Affiliate.
SECTION 9.11. Compensation and Reimbursement of General Partner.
(a) The General Partner shall not be compensated for its services as General Partner to the Partnership.
(b) After the Closing, if any, the General Partner shall be reimbursed on a monthly basis for (i) all actual out-of-pocket expenses, disbursements and advances it pays or incurs in connection with the formation and business of the Partnership, including all expenses, disbursements and advances for legal, accounting, printing and banking matters, consultants and other third parties, reasonable travel expenses, and filing fees, and (ii) that portion of the General Partner’s legal and accounting expenses, telephone, secretarial, travel and entertainment expenses, office rent and other office expenses, salaries and other compensation expenses of employees, and other expenses necessary or appropriate to the conduct of the Partnership’s business which is properly allocable to the Partnership. The General Partner shall determine the expenses which are allocable to the Partnership in a reasonable manner. The rights under this Section 9.11(b) shall apply to costs and expenses incurred on or after the Closing.
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opening of the Venue. However, the Partnership agrees that Buffett shall not be required to perform at any of the four personal appearances. The General Partner will cause Buffett to use his reasonable best efforts to provide sufficient advance notice of each appearance to allow for sufficient opportunity to publicize the appearance. Universal, or its designated Affiliate, will cooperate with Buffett’s efforts to raise funds for charity as part of any appearance by Buffett. During each year or portion thereof subsequent to the Venue’s initial year, the General Partner will cause Buffett to agree that he shall make at least one such similar appearance at the Venue. Notwithstanding the foregoing, the parties agree that, in the event that Buffett’s death or disability prevents him from making any or all of the contemplated appearances, such failure on the part of the General Partner to cause Buffett to appear shall not be deemed a breach of this agreement by the General Partner. For purposes of this Section 9.12, “disability” shall be defined as Buffett’s inability to make the contemplated appearances for a period of at least six months. It is acknowledged by the Partner that Buffet is neither a partner in the Partnership nor is he in partnership with the Partnership.
ARTICLE X
TRANSFER OF PARTNERSHIP INTERESTS: ADMISSION OF PARTNERS
SECTION 10.1. Transfer Restrictions. Except as otherwise provided herein, there shall be no restrictions on the transfer of a Partner’s Partnership Interest. Notwithstanding the foregoing, no Partner may, directly or indirectly, Transfer all or any part of his, her or its Partnership Interest voluntarily to a Restricted Transferee, or permit such a Transfer by operation of law or otherwise.
SECTION 10.2. Encumbrances. In all events, each of the General Partner and the Limited Partner shall have the right to encumber, pledge or hypothecate its respective Partnership Interest at any time.
SECTION 10.3. Acceptance of Transfer: Substituted Limited Partner.
(a) No Transfer pursuant to this Article X shall be deemed effective, unless and until the transferee shall execute a written instrument, in a form reasonably satisfactory to counsel for the Partnership, agreeing to be bound by all of the terms and provisions of this Partnership Agreement and all amendments and supplements hereto, to the same extent and on the same terms as the other Partners.
(b) Any person admitted to the Partnership as a substituted Limited Partner shall be subject to and bound by all the provisions of this Partnership Agreement as if originally a party to this Partnership Agreement. Upon the admission to the Partnership of a substituted Limited Partner, the General Partner shall amend this Partnership
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Agreement and any schedules hereto to reflect such admission. A transferee of an interest in the Partnership permitted under the provisions of this Article X who is not admitted as a substitute Limited Partner pursuant to paragraph (a) of this Section 10.3, or who is not a Partner prior to the Transfer shall succeed to the economic interests in the Partnership so transferred, be it profits, losses and/or capital, but shall not succeed to the other rights of the transferee as a Limited Partner.
ARTICLE XI
DISSOLUTION OF THE PARTNERSHIP
The happening of any one of the following events shall work an immediate dissolution of the Partnership:
(a) The expiration of the term of the Partnership as provided in Section 1.5 of this Partnership Agreement;
(b) Subject to the prior consent of all the Partners, the sale or disposition of all or substantially all of the assets of the Partnership and distribution of the proceeds therefrom; and
(c) A bankruptcy filing of the General Partner shall constitute a dissolution of the Partnership unless the Limited Partner selects a new general partner within ninety (90) days of the commencement of the proceedings.
ARTICLE XII
ADDITIONAL PROVISIONS CONCERNING
DISSOLUTION OF THE PARTNERSHIP
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as the General Partner (or liquidator or liquidating committee) may deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Partnership; (vi) only to the extent that the Limited Partner’s Partnership Interest has been redeemed, the distribution to the General Partner of all removable assets; (vii) distributing to the Partners, prorata based upon their respective Participating Percentages, all undistributed Distributable Cash including all funds in any reserve accounts other than the reserve accounts set up under this Section 12.2(v); and (viii) all cash shall be distributed to the Partners, which distributions shall be in accordance with the Partners’ positive Capital Account balances, to the extent that there is sufficient cash available, as required by Treasury Regulation ss. 1.704-1(b)(2)(ii)(b) pursuant to the allocation and distribution provisions set forth in Section 6.4).
ARTICLE XIII
ARTICLE XIV
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SECTION 14.2. Applicable Law. This Partnership Agreement and the rights of the parties hereunder shall be governed by and interpreted in accordance with the laws of the State of Delaware without regard to principles of conflicts of law.
SECTION 14.4. Gender. Wherever from the context it appears appropriate, each term stated in either the singular or the plural shall include the singular and the plural, and pronouns stated in either the masculine, the feminine or the neuter gender shall include the masculine, feminine, and neuter.
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GENERAL PARTNER: MARGARITAVILLE HOLDINGS LLC, a Delaware limited liability company | ||
By: | /s/ Xxxx Xxxxxx | |
Xxxx Xxxxxx, its President and Chief Executive Officer | ||
LIMITED PARTNER: UNIVERSAL CITY DEVELOPMENT PARTNERS, a Florida general partnership | ||
By: | /s/ Xxxxx X. Xxxxxxxxx | |
Xxxxx X. Xxxxxxxxx, its authorized agent |
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Schedule A
Name and Address |
Capital Contribution |
Participating Percentage |
||||||
GENERAL PARTNER: | $ | 0 | Estimated Value of | 50 | % | |||
Margaritaville Holdings LLC 00 Xxxxxxxx Xxxx Xxxx Xxxxx, Xxxxxxx 00000 Attention: Xxxx Xxxxxx |
||||||||
LIMITED PARTNER: | $ | 8,700,000 | Approximately | 50 | % | |||
Universal City Development Partners 0000 Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxxx, Xxxxxxx 00000-0000 Attention: General Manager City Walk |
100 | % | ||||||
Schedule B
Motion Picture Film Production Studios
Television Production Studios
Audio Recording and Music Publishing
Record, Television and Film Distribution
Theme Parks-Destination Resort Operations
Merchandising, Licensing and Distribution
Distilled Spirits (Distiller/Wholesaler)
Television Broadcasting
Beverage Alcohol (Distiller/Wholesaler)
Feature Film Exhibition
B-1