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EXHIBIT 3.14.1
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EXHIBIT 3.14.1
AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇ BROADCASTING OF TAMPA, LIMITED PARTNERSHIP
This Agreement of Limited Partnership ("Agreement") is entered into
and shall be effective as of the 27th day of June, 1991, by and between ▇▇▇▇▇▇
Enterprises, Inc., a Nevada Corporation, as the General Partner and ▇▇▇▇▇▇
▇▇▇▇▇▇, 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
10. 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.
"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) 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
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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 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
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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 ▇▇▇▇▇▇
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.
"Partnership" means the ▇▇▇▇▇▇ BROADCASTING OF TAMPA, 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.
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"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 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.
11. 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.
12. 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.
13. 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
14. 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 "▇▇▇▇▇▇ BROADCASTING OF TAMPA, LIMITED
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PARTNERSHIP." The recordkeeping office of the Partnership is located at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇. The principal business office
of the Partnership is located at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇.
The Managing General Partner may change the name of the Partnership or the
location of its principal business office at any time and from time to time by
giving written notice of such change to each Partner.
15. Term of Partnership. The term of the Partnership shall
continue until the earlier of (i) December 31, 2066, or (ii) the death or
adjudication of incompetency as determined by a court of appropriate
jurisdiction of ▇▇▇▇▇▇ ▇▇▇▇▇▇, unless the Partnership is earlier dissolved and
terminated under this Agreement.
16. 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 Hillsborough County, 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.
(b) 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 liens on the
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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.
1793. 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 the severed
ownership interests would be valued for federal estate tax purposes.
ARTICLE III
PARTNERSHIP CAPITAL
1794. 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
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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
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.
1795. 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
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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 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.
1796. 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.
1797. 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.
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ARTICLE IV
PROFITS AND LOSSES AND TAXABLE INCOME AND TAXABLE LOSS
1798. 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 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
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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.
ARTICLE V
DISTRIBUTIONS, WITHDRAWALS AND LOANS
1799. 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
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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 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.
3585. 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.
ARTICLE VI
AUTHORITY, DUTIES, AND LIABILITIES OF PARTNERS
3586. 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
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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.
3587. 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
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.
3588. 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
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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 the responsibilities imposed on the
Managing General Partner by the Act;
(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.
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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.
4609. 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.
4610. 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, 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.
4611. 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.
4612. 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
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name of the Partnership or otherwise make commitments on behalf of the
Partnership.
ARTICLE VII
TRANSFER OF PARTNERSHIP INTERESTS
4613. 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.
4614. 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.
4615. 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;
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(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 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.
4616. 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.
4617. 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.
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ARTICLE VIII
RETIREMENT, WITHDRAWAL, OR REMOVAL OF PARTNERS
4618. 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 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.
4619. 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
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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
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.
4620. 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
4621. 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;
(e) the death of ▇▇▇▇▇▇ ▇▇▇▇▇▇; or
(f) the sale of all or substantially all of the
Partnership's Property.
4622. 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,
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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 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.
4623. 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).
4624. 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 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
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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.
4625. 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
4626. 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.
4627. 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 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.
4628. 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.
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4629. 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.
4630. 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
4631. 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.
4632. Conveyances. Subject to section 18, the Managing General
Partner may sign any deed, mortgage, lease, ▇▇▇▇ 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 subsequently owned or leased at any time by the Partnership, and no other
signature is required.
4633. 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.
4634. 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
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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.
4635. 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 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.
4636. 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.
4637. 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.
4638. 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
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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.
4639. 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.
4640. 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 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.
4641. Gender and Number. As used in this Agreement, the
masculine gender includes the feminine and neuter, and the singular includes
the plural.
4642. 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
▇▇▇▇▇▇ ENTERPRISES, INC.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
President
Limited Partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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STATE OF FLORIDA
COUNTY OF Pinellas
SUBSCRIBED and SWORN to before me on behalf of ▇▇▇▇▇▇ ENTERPRISES, INC., a
Nevada corporation, as General Partner,
by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, its President, this 25th day of September, 1991.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Notary Public, State of Florida
(Affix Notarial Seal) My Commission Expires:
STATE OF FLORIDA
COUNTY OF Pinellas
SUBSCRIBED and SWORN to before me by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, as Limited Partner,
this 25th day of September, 1991.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------
Notary Public, State of Florida
(Affix Notarial Seal) My Commission Expires:
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EXHIBIT A
General Partners Contribution Percentage Interest
---------------- ------------ -------------------
▇▇▇▇▇▇ Enterprises, Inc. 5%
c/o ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Limited Partners
----------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 95%
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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AMENDMENT NUMBER 1 TO THE AGREEMENT OF LIMITED
LIMITED PARTNERSHIP OF ▇▇▇▇▇▇ BROADCASTING OF TAMPA,
DATED JUNE 27, 1991
▇▇▇▇▇▇ Enterprises, Inc., a Nevada corporation, as the
withdrawing General Partner ("Enterprises"), ▇▇▇▇▇▇ Tampa, Inc., a Florida
corporation, as successor General Partner, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Limited
Partner execute this Amendment Number 1 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, effective as of June 27,
1991 (the "Agreement"), and agree as follows:
1. Assignment of General Partnership Interest and
Admission of Substitute Partner
Enterprises hereby resigns as the General Partner of ▇▇▇▇▇▇
Broadcasting of Tampa, Limited Partnership (the "Partnership") and assigns all
of its right, title and interest in the Partnership, as General Partner, to
▇▇▇▇▇▇ Tampa, Inc. Subject to the provisions of the Act, including Florida
Statutes Section Section 620.64 and 620.76(7), and in accordance with the
provisions of Section 25 of the Agreement, ▇▇▇▇▇▇ Tampa, Inc. accepts and
assumes all of the terms and provisions of the Agreement, specifically assumes
all of the obligations and covenants of Enterprises under the Agreement, and
acknowledges and agrees that it is the successor General Partner to
Enterprises. ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby approves ▇▇▇▇▇▇ Tampa, Inc. as successor
General Partner.
2. Integration of Execution
By its execution of this Amendment Number 1, and the execution
of two counterparts of the Agreement by ▇▇▇▇▇▇ Tampa, Inc., ▇▇▇▇▇▇ Tampa, Inc.
shall be deemed to have executed, in its capacity as successor General Partner,
the Agreement, as amended hereby, all in accordance with the provisions of
Sections 25 and 48 of the Agreement.
3. Reconstitution
To the extent required pursuant to Section 29 of the
Agreement, execution of this Amendment shall automatically reconstitute the
Partnership pursuant to Section 29.
4. No Adjustments to Capital Accounts
▇▇▇▇▇▇ Tampa, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇ acknowledge and agree
that there shall be no adjustments to the Capital Accounts as a consequence of
the assignment by Enterprises of its interest in the Partnership to ▇▇▇▇▇▇
Tampa, Inc., the resignation of Enterprises and the substitution of ▇▇▇▇▇▇
Tampa, Inc. as General Partner.
5. Amendment to Exhibit A
Exhibit A to the Agreement is amended and replaced by the new
Exhibit A attached hereto which provides that the General Partner is ▇▇▇▇▇▇
Tampa, Inc.
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6. Effective Date
The amendments to the Agreement added by this Amendment Number
1 shall be effective on the date signed below.
7. Ratification and Confirmation
The Agreement as hereby amended is ratified and confirmed in
all other respects.
IN WITNESS WHEREOF, the parties have executed this Amendment
Number 1 on this 17th day of December, 1991.
WITNESSES: ▇▇▇▇▇▇ ENTERPRISES, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ --------------------------
/s/ ▇▇▇▇▇▇ Tek
------------------------
▇▇▇▇▇▇ TAMPA, INC.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ ---------------------------
/s/ ▇▇▇▇▇▇ Tek
------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ Tek
------------------------
2
29
AMENDMENT NUMBER 2 TO THE AGREEMENT OF
LIMITED PARTNERSHIP OF ▇▇▇▇▇▇ BROADCASTING OF TAMPA
▇▇▇▇▇▇ Tampa, Inc., a Florida corporation, as the withdrawing
General Partner ("TPA, Inc."), ▇▇▇▇▇▇ Enterprises, Inc., a Nevada corporation
("Enterprises"), as successor General Partner, and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ as Limited
Partner execute this Amendment Number 2 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, effective as of April 20,
1992 (the "Agreement"), and agree as follows:
1. Assignment of General Partnership Interest and
Admission of Substitute Partner
TPA, Inc. hereby resigns as the General Partner of ▇▇▇▇▇▇
Broadcasting of Tampa, Limited Partnership (the "Partnership") and assigns all
of its right, title and interest in the Partnership, as General Partner, to
Enterprises. Subject to the provisions of the Act, including Florida Statutes
Section Section 620.64 and 620.76(7), and in accordance with the provisions of
Section 25 of the Agreement, Enterprises accepts and assumes all of the terms
and provisions of the Agreement, specifically assumes all of the obligations
and covenants of TPA, Inc. under the Agreement, and acknowledges and agrees
that it is the successor General Partner to TPA, Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇ hereby
approves Enterprises as successor General Partner.
2. Integration of Execution
By its execution of this Amendment Number 2, Enterprises shall
be deemed to have executed, in its capacity as successor General Partner, the
Agreement, as amended hereby, all in accordance with the provisions of Sections
25 and 48 of the Agreement.
3. Reconstitution
To the extent required pursuant to Section 29 of the
Agreement, execution of this Amendment shall automatically reconstitute the
Partnership pursuant to Section 29.
4. No Adjustments to Capital Accounts
Enterprises and ▇▇▇▇▇▇ ▇▇▇▇▇▇ acknowledge and agree that there
shall be no adjustments to the Capital Accounts as a consequence of the
assignment by TPA, Inc. of its interest in the Partnership to Enterprises, the
resignation of TPA, Inc. and the substitution of Enterprises as General
Partner.
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30
5. Amendment to Exhibit A
Exhibit A to the Agreement is amended and replaced by the new
Exhibit A attached hereto which provides that the General Partner is
Enterprises.
6. Effective Date
The amendments to the Agreement added by this Amendment Number
2 shall be effective on the date signed below.
7. Ratification and Confirmation
The 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 20th day of April, 1992.
▇▇▇▇▇▇ ENTERPRISES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
▇▇▇▇▇▇ TAMPA, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
2
31
AMENDMENT NUMBER 3 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇ BROADCASTING OF TAMPA, LIMITED PARTNERSHIP
This Amendment Number 3 to the Agreement of Limited Partnership of
▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership ("Amendment") is effective as
of the 1st day of January, 1992, by and between ▇▇▇▇▇▇ ENTERPRISES, INC., a
Nevada corporation, as the General Partner and ▇▇▇▇▇▇ ▇▇▇▇▇▇, as a Limited
Partner. The parties hereby agree as follows:
1. Amendment to Definitions. The following definition should be
added to Section 1 following the definition of the term "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."
2. Amendment to Section 9. Section 9 is amended by inserting
the following subsections (d) and (e) at the end thereof:
"(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 0 in accordance with Regulations Section
1.704-1(b)(2)(ii)(d); provided, however, that a Partner's obligation
to restore
1
32
such Deficit Capital Account Balance shall not exceed the amount of
the Partnership's liability under the Credit and Guaranty Agreement
among ▇▇▇▇▇▇ Broadcasting of Miami, Limited Partnership, ▇▇▇▇▇▇
Broadcasting of Orlando, Limited Partnership, ▇▇▇▇▇▇ Broadcasting of
Jacksonville, Limited Partnership, and ▇▇▇▇▇▇ Broadcasting of Tampa,
Limited Partnership, and Citibank, N.A. (the "Credit Agreement")."
3. Amendment to Section 13. Section 13 is amended by inserting
the following provisions as subsections (c) and (d) thereof:
"(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
33
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."
4. Amendment to Section 34. Section 34 is amended by adding the
following provisions to the end of such section:
"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."
3
34
5. Ratification and Confirmation. The Agreement as hereby
amended is ratified and confirmed in all other respects.
IN WITNESS WHEREOF, the parties have executed this Amendment Number 3
on this 4th day of January, 1993.
WITNESSES: GENERAL PARTNER:
▇▇▇▇▇▇ ENTERPRISES, INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ ------------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
LIMITED PARTNER:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ ------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
4
35
AMENDMENT NUMBER 4 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇ BROADCASTING OF TAMPA LIMITED PARTNERSHIP
This Amendment Number 4 ("Amendment") to the Agreement of Limited
Partnership (the "Partnership Agreement") of ▇▇▇▇▇▇ Broadcasting of Tampa
Limited Partnership ("Amendment") is effective as of the 29th day of March,
1993, by and between ▇▇▇▇▇▇ ENTERPRISES, INC., a Nevada corporation, as the
General Partner and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 ▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇."
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,".
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):
1
36
"(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:
▇▇▇▇▇▇ ENTERPRISES, INC.
/s/ ▇▇▇▇▇▇ Tek By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ -----------------------------
Its President
-------------------------
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
LIMITED PARTNER:
▇▇▇▇▇▇ BROADCASTING OF ORLANDO,
LIMITED PARTNERSHIP, By ▇▇▇▇▇▇
Enterprises, Inc. its General
Partner
/s/ ▇▇▇▇▇▇ Tek /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------ --------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------
2
37
LIMITED PARTNERSHIP INTERESTS ASSIGNMENT AGREEMENT
This Limited Partnership Interests Assignment Agreement (the
"Agreement") is dated December 15, 1993 (the "Effective Date"), among ▇▇▇▇▇▇
Communications of Florida, Inc. (the "General Partner"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the
"First Assignor Limited Partner"), Second ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, L. P., a Nevada
limited partnership (the "First Assignee"), ▇▇▇▇▇▇ Communications Corp. (the
"Second Assignee"), and ▇▇▇▇▇▇ Communications LP, Inc. (the "Assignee Limited
Partner"). Capitalized terms used herein and not ascribed a definition have
the meaning assigned to them by the Partnership Agreement to which they
pertain.
BACKGROUND
The General Partner and the First Assignor Limited Partner are
partners in the limited partnerships listed in Exhibit "A" (the
"Partnerships"). The First Assignor Limited Partner wishes to transfer his
limited partnership interests in those Partnerships to the First Assignee and
the First Assignee wishes to immediately assign such limited partnership
interests to the Second Assignee and the Second Assignee wishes to immediately
assign such limited partnership interests to the Assignee Limited Partner. The
First Assignor Limited Partner and the First and Second Assignees also wish to
have the Assignee Limited Partner admitted as a Limited Partner in the
respective Partnerships and granted Partnership Rights in the respective
Partnerships. The Assignee Limited Partner agrees to accept the assignment of
the limited partnership interests and to be admitted as a Limited Partner in
accordance with the Limited Partnership Agreements listed in Exhibit "A" (the
"Partnership Agreements"). The General Partner as general partner for each of
the Partnerships consents to the assignment of the limited partnership
interests and the admission and substitution of the Assignee Limited Partner as
a Limited Partner under the respective Partnership Agreements. Pursuant to
Chapter 620, Florida Statutes, the Partnerships will continue uninterrupted
with substitute partners and the assignment of the limited 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 the
Partnership Agreements and Section 620.152, Florida Statutes, the First
Assignor Limited Partner assigns all of its limited partnership interests in
the
Partnerships to the First Assignee. The First Assignee accepts the assignment
of all of the limited partnership interests. Pursuant to the Partnership
Agreements and Section 620.152, Florida Statutes, the First Assignee assigns
all of its limited partnership interests in the Partnerships to the Second
Assignee. The Second Assignee accepts the assignment of all of the limited
partnership interests. Pursuant to the Partnership Agreements and Section
620.152, Florida Statutes, the Second Assignee assigns all of its
1
38
limited partnership interests in the Partnerships to the Assignee Limited
Partner. The Assignee Limited Partner accepts the assignment of all of the
limited partnership interests.
2. Admission of Assignee Limited Partner and Withdrawal
of Assignor Limited Partner. On the Effective Date, the Assignee Limited
Partner is admitted as a Limited Partner pursuant to the respective Partnership
Agreement for such Partnerships and the First Assignor Limited Partner has
withdrawn as a Limited Partner from each of the Partnerships.
3. Assignee Limited Partner's Acceptance of Admission.
By executing this Agreement, the Assignee Limited Partner accepts and agrees to
be bound by the terms and provisions of the respective Partnership Agreements.
The parties agree that the Assignee Limited Partner's execution of this
Agreement shall satisfy the requirements of Sections 23, 24 and 25 of the
respective Partnership Agreements.
4. General Partner's Consent. The General Partner
consents to the assignment of the limited partnership interests to the Assignee
Limited Partner and the admission of the Assignee Limited Partner as a Limited
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 limited partnership interests will not
cause a termination of any of the Partnerships.
6. Security Interests. Without limiting any of the
foregoing, each of First Assignor Limited Partner, General Partner, First
Assignee, Second Assignee and Assignee Limited Partner agree and acknowledge
that (i) First Assignor Limited Partner's limited 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 limited partnership
interests in the Partnerships by First Limited Partner Assignor to First
Assignee, by First Assignee to Second Assignee, and by Second Assignee to
Assignee Limited Partner, 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.
9. Entire Agreement. This Agreement embodies the final,
complete, and exclusive expression of the understanding among the
2
39
parties and supersedes any prior or contemporaneous agreement or
representation, oral or written, by any of them.
3
40
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the day and year stated above.
▇▇▇▇▇▇ COMMUNICATIONS OF FLORIDA,
INC., as General Partner of each
of the Partnerships
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, First Assignor
Limited Partner for each Partnership
SECOND ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, L. P., a
Nevada limited partnership,
First Assignee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇ COMMUNICATIONS CORP., As
Second Assignee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇ COMMUNICATIONS LP, INC., as
Assignee Limited Partner for each
Partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
4
41
EXHIBIT "A"
Limited Partnerships
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Jacksonville,
Limited Partnership dated June 27, 1991, as amended by Amendment
Number 1 to the Agreement of Limited Partnership of ▇▇▇▇▇▇
Broadcasting of Jacksonville, Limited Partnership dated January 1,
1992, and Amendment Number 2 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Jacksonville, Limited Partnership dated
March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited
Partnership dated June 27, 1991, as amended by Amendment Number 1 to
the Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Tampa,
dated June 27, 1991, and Amendment Number 2 to the Agreement of
Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Tampa, dated April 27,
1992, and Amendment Number 3 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, dated January 1,
1992, and Amendment Number 4 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, dated March 29,
1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Miami, Limited
Partnership dated November 18, 1991, as amended by Amendment Number 1
to the Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of
Miami, Limited Partnership, dated January 1, 1992, and Amendment
Number 2 to the Agreement of Limited Partnership of ▇▇▇▇▇▇
Broadcasting of Miami, dated March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Orlando, Limited
Partnership dated November 18, 1991, as amended by Amendment Number 1
to the Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of
Orlando, Limited Partnership, dated January 1, 1992, and Amendment
Number 2 to the Agreement of Limited Partnership of ▇▇▇▇▇▇
Broadcasting of Orlando, Limited Partnership.
5
42
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
▇▇▇▇▇▇ Enterprises, Inc. (the "General Partner Assignor"), ▇▇▇▇▇▇
Communications Corp. (the "First Assignee"), ▇▇▇▇▇▇ Communications of Florida,
Inc. (the "General Partner Assignee"), and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (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
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general partnership interests in the Partnerships to the First Assignee. The
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
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one agreement binding on all of the parties, notwithstanding that all of the
parties have not signed the original or the same counterpart.
9. Entire Agreement. This Agreement embodies the final,
complete, and exclusive expression of the understanding
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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.
▇▇▇▇▇▇ ENTERPRISES, INC., as
General Partner Assignor and as
Withdrawing General Partner of each
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Nonassigning
Limited Partner
▇▇▇▇▇▇ COMMUNICATIONS CORPORATION,
First Assignee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇ COMMUNICATIONS OF FLORIDA,
INC., as General Partner Assignee
and successor General Partner of
each Partnership
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
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EXHIBIT "A"
Limited Partnerships
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Jacksonville,
Limited Partnership dated June 27, 1991, as amended by Amendment
Number 1 to the Agreement of Limited Partnership of ▇▇▇▇▇▇
Broadcasting of Jacksonville, Limited Partnership dated January 1,
1992, and Amendment Number 2 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Jacksonville, Limited Partnership dated
March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited
Partnership dated June 27, 1991, as amended by Amendment Number 1 to
the Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Tampa,
dated June 27, 1991, and Amendment Number 2 to the Agreement of
Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Tampa, dated April 27,
1992, and Amendment Number 3 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, dated January 1,
1992, and Amendment Number 4 to the Agreement of Limited Partnership
of ▇▇▇▇▇▇ Broadcasting of Tampa, Limited Partnership, dated March 29,
1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Miami, Limited
Partnership dated November 18, 1991, as amended by Amendment Number 1
to the Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of
Miami, Limited Partnership, dated January 1, 1992, and Amendment
Number 2 to the Agreement of Limited Partnership of ▇▇▇▇▇▇
Broadcasting of Miami, dated March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of Orlando, Limited
Partnership dated November 18, 1991, as amended by Amendment Number 1
to the Agreement of Limited Partnership of ▇▇▇▇▇▇ Broadcasting of
Orlando, Limited Partnership, dated January 1, 1992, and Amendment
Number 2 to the Agreement of Limited Partnership of ▇▇▇▇▇▇
Broadcasting of Orlando, Limited Partnership.
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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 ▇▇▇▇▇▇ Jacksonville, Licensed
Limited Partnership dated March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Tampa License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of ▇▇▇▇▇▇ Tampa, Licensed Limited
Partnership dated March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ Miami License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of ▇▇▇▇▇▇ Miami, Licensed Limited
Partnership dated March 29, 1993.
Agreement of Limited Partnership of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ License Limited Partnership
dated as of March 10, 1993, as amended by Amendment Number 1 to the
Agreement of Limited Partnership of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Licensed Limited
Partnership dated March 29, 1993.
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AMENDMENT NUMBER 5 TO THE
AGREEMENT OF LIMITED PARTNERSHIP OF
▇▇▇▇▇▇ BROADCASTING OF TAMPA, LIMITED PARTNERSHIP
This Amendment Number 5 ("Amendment") to the Agreement of Limited
Partnership (the "Partnership Agreement") of ▇▇▇▇▇▇ Broadcasting of Tampa,
Limited Partnership ("Amendment") is effective as of the ___ day of September,
1995, by and between ▇▇▇▇▇▇ COMMUNICATIONS OF FLORIDA, INC., a Florida
corporation, as the General Partner and ▇▇▇▇▇▇ COMMUNICATIONS LP, INC., 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 ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇."
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 5
on this 19th day of September, 1995.
WITNESSES: GENERAL PARTNER:
▇▇▇▇▇▇ COMMUNICATIONS OF FLORIDA,
INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -------------------------------
Its Secretary
---------------------
/s/ Desire ▇▇▇▇▇
--------------------------
LIMITED PARTNER:
▇▇▇▇▇▇ COMMUNICATIONS LP, INC.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------- -------------------------------
Its Secretary
---------------------
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