1
Exhibit 3.26
AGREEMENT
OF
LIMITED PARTNERSHIP
OF
EMMIS TELEVISION BROADCASTING, L.P.
June 17, 1998
2
AGREEMENT OF LIMITED PARTNERSHIP
OF
EMMIS TELEVISION BROADCASTING, L.P.
The undersigned hereby enter into and agree as provided in the
following Agreement of Limited Partnership (the "Agreement").
ARTICLE I
GENERAL PROVISIONS
SECTION 1.01. NAME. The name of the Partnership is Emmis Publishing,
L.P. (the "Partnership").
SECTION 1.02. PLACE OF BUSINESS. The principal business office of the
Partnership shall be ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such location as may be selected from time to time by the
General Partner.
SECTION 1.03. TERM. The term of the Partnership shall extend until
December 31, 2047, unless sooner terminated as hereinafter provided.
SECTION 1.04. DEFINITIONS. The following terms have the following
meanings herein:
"ACT" means the Indiana Revised Uniform Limited Partnership Act, as now
or hereafter amended.
"AFFILIATE" means a Person who, with respect to another person,
directly or indirectly controls, is controlled by or is under common control
with such other Person.
"ASSIGNEE" means a Person who has acquired a direct beneficial interest
in the Partnership but who has not become a Substituted Partner.
"ASSIGNMENT" means, for purposes of Articles VII and VIII with regard
to interests in the Partnership, any sale, assignment, transfer, pledge,
encumbrance or other disposition of, or the granting of a security interest in,
such an interest, including without limitation a transfer in connection with a
dissolution, merger, consolidation or similar action of a Partner.
"BANKRUPTCY" means, with respect to a Person, the happening of any of
the following:
(A) The entry by a court or governmental agency having
jurisdiction in the premises of a decree or order for
relief in respect of the Person in an involuntary
case under any applicable bankruptcy, insolvency or
similar law now or
1
3
hereafter in effect or appointing a receiver,
liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person, or
for any substantial part of such Person's property or
ordering the winding up or liquidation of such
Person's affairs, and such decree or order remaining
unstayed and in effect for a period of sixty (60)
consecutive days; or
(B) The commencement by the Person of a voluntary case
under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or the
consent by such Person to the entry of an order for
relief in an involuntary case under any such law; or
(C) The consent by the Person to the appointment or
taking possession by a receiver, liquidator,
assignee, custodian, trustee, sequestrator or similar
official of any substantial part of such Person's
property, or the filing of a pleading in any court of
record admitting in writing the inability of the
Person to pay his, her or its debts as they become
due; or
(D) The making by the Person of a general assignment for
the benefit of creditors.
"CAPITAL ACCOUNT" means, with respect to any Partner, an amount equal
to the sum of:
(A) the amount of cash such Partner has contributed to
the Partnership (including any contribution pursuant
to Section 4.01),
(B) the fair market value of any property such Partner
has contributed to the Partnership (net of any
liabilities secured by such contributed property that
the Partnership is considered to assume or take
subject to under Code Section 752) as a Capital
Contribution, and
(C) the amount of Profits allocated to such Partner and
any items in the nature of income or Profits that are
specifically allocated to such Partner pursuant to
Sections 4.05 and 4.06;
reduced by the sum of:
(W) the amount of Losses allocated to such Partner and
any items in the nature of expenses or losses that
are specifically allocated to such Partner pursuant
to Sections 4.05 and 4.06;
2
4
(X) the amount of all cash distributed to such Partner,
and
(Y) the fair market value of any property distributed to
such Partner (net of any liabilities secured by such
distributed property that such Partner is considered
to assume or take subject to under Code Section 752);
subject, however, to such other adjustments as may be required under the Code
and Treasury Regulations, including, but not limited to, increases or decreases
to reflect a revaluation of Partnership property on the Partnership?s books in
accordance with the rules of Treasury Regulations Section 1.704-1(b)(2)(iv)(f).
Generally, a transferee of a Partnership interest shall succeed to the Capital
Account relating to the Partnership interest transferred. The Capital Account is
to be determined and maintained at all times in strict accordance with all of
the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv). The Capital
Account of a Partner may, under certain circumstances, be an amount less than
zero. The Assignee of Record or Substituted Partner to whom a Partnership
interest is transferred shall succeed to the Capital Account attributable to the
Partnership interest (or portion thereof) transferred.
"CAPITAL CONTRIBUTION" means the total amount of cash or other
consideration contributed to the Partnership by each Partner pursuant to Section
4.01.
"CAPITAL TRANSACTION" means the sale, exchange, refinancing or other
disposition of all or any substantial part of the property of the Partnership,
or any interest therein (with the exception of the sale of personal property or
fixtures because of replacement or obsolescence), or casualty damage to, or
condemnation of, all or any substantial part of the property of the Partnership,
or any interest therein (other than the proceeds of any business or rental
interruption insurance), but not including the grant of an interest as security
in or any encumbrance of the property of the Partnership, or any interest
therein.
"CODE" means the Internal Revenue Code of 1986, as in effect on the
date of this Agreement, or as may hereafter be amended or supplemented.
"DEPRECIATION" means for each fiscal year or other period, an amount
equal to the depreciation, amortization, or other cost recovery deduction
allowable with respect to an asset for such year or other period, except that if
the Partnership asset is reflected on the books of the Partnership at a book
value that differs from the adjusted tax basis of such asset pursuant to Section
1.704-1(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f) of the Treasury Regulations,
depreciation, amortization, or other cost recovery deductions shall be computed
for book purposes with respect to such asset pursuant to Section
1.704-1(b)(2)(iv)(g) of the Treasury Regulations.
"DISTRIBUTABLE CASH" means for any fiscal period the total operating
and investment revenues of the Partnership, reduced by (i) operating expenses
requiring the expenditure of
3
5
cash by the Partnership (to the extent not paid from reserves); (ii) debt
amortization; (iii) management fees and administration fees; (iv) taxes,
interest expense, repayment of loans outstanding pursuant to Section 3.10 and
any other items reasonably determined by the General Partner to be necessary for
the operations of the Partnership (to the extent not paid from reserves); and
(v) reasonable additions to other reserves for working capital, contingencies
and anticipated expenses, as determined by the General Partner. "Distributable
Cash" does not include the proceeds of the sale, refinancing, exchange,
condemnation or destruction (including insurance or condemnation proceeds in
excess of amounts required to be applied to restore or replace the insured or
condemned property other than the proceeds of any business or rental
interruption insurance) or other disposition of all or any substantial part of
the Partnership's property or any interest therein in a Capital Transaction.
Distributable Cash shall be determined separately for each fiscal period of the
Partnership.
"DISTRIBUTION" means any cash or property distributed to a Partner
arising from its interest in the Partnership.
"GENERAL PARTNER" means the Person specified as such in Exhibit A.
"LIMITED PARTNER" means (i) each Person specified as such on Exhibit A
to this Agreement and (ii) successors who have complied with the requirements of
Article VIII and who have been accepted as substitute limited partners pursuant
to Section 8.04.
"LIMITED PARTNER CONSENT" means the approval or consent in writing of a
majority in interest of the Limited Partners, measured by their respective
Percentage Shares compared to the total Percentage Shares held by all Limited
Partners.
"OUTSTANDING CAPITAL CONTRIBUTION" of a Partner means the amount of all
cash contributed by the Partner to the capital of the Partnership, reduced (but
not below zero) by all cash distributed to the Partner as a result of a Capital
Transaction.
"PARTNER" means a General Partner or a Limited Partner.
"PARTNERSHIP" means the partnership governed by this agreement of
limited partnership.
"PERCENTAGE SHARE" means with respect to each Partner the percentage
specified as such for that Partner in Exhibit A to this Agreement.
"PERSON" means an individual, firm, partnership, corporation, estate,
trust, pension or profit-sharing plan or other entity.
"PROFITS" and "LOSSES" mean, for each fiscal year or other period, an
amount equal to the Partnership's taxable income or loss for such year or
period, determined in accordance with Code Section 703(a) (for this purpose, all
items of income, gain, loss or
4
6
deduction required to be stated separately pursuant to Code Section 703(a)(1)
shall be included in taxable income or loss), with the following adjustments:
(i) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing
profits or losses pursuant to this Section 1.04 shall be added
to such taxable income or loss;
(ii) Any Code Section 705(a)(2)(B) Expenditures not otherwise taken
into account in computing profits or losses pursuant to this
Section 1.04 shall be subtracted from such taxable income or
loss;
(iii) In the event any asset of the Partnership is distributed to
any Partner or sold by the Partnership, the difference on such
date between (a) the gross fair market value (determined by
agreement of the Partners or, if they cannot agree, by
arbitration in accordance with the then current rules of the
American Arbitration Association) and (b)(i) the adjusted
basis of the asset for federal income tax purposes, or (2) if
the asset is reflected on the books of the Partnership at a
book value that differs from the adjusted tax basis of such
asset pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f), the gross fair
market value on the date of the contribution of the asset to
the Partnership or the gross fair market value of the asset on
the date of the asset?s revaluation on the Partnership?s
books, as the case may be (as determined by the General
Partner) less Depreciation, shall be taken into account as
gain or loss from the disposition of such asset for purposes
of computing Profits or Losses;
(iv) In lieu of the depreciation, amortization, and other cost
recovery deductions taken into account in computing such
taxable income or loss, there shall be taken into account
Depreciation for such fiscal year or other period; and
(v) Notwithstanding anything to the contrary in the definition of
the term "Profits and Losses", any items which are specially
allocated pursuant to Sections 4.05 and 4.06 shall not be
taken into account in computing Profits and Losses.
"SUBSTITUTED PARTNER" means an Assignee or other Person, who becomes a
Partner pursuant to Article VIII.
"TAX MATTERS PARTNER" means the General Partner, or any successor
thereto appointed by the General Partner.
5
7
"TREASURY REGULATIONS" mean the income tax regulations promulgated
under the Code as in effect on the date of this Agreement, or as hereafter
amended or supplemented (including corresponding provisions of such succeeding
regulations).
Such terms shall be used either in the singular or plural and may be
referred to in any gender as required by the context.
ARTICLE II
MEMBERS AND STATUS
SECTION 2.01. THE PARTNERS. The Partners of the Partnership shall
consist of and be divided into two classes, with the General Partner as general
partner and the Limited Partner as limited partner.
SECTION 2.02. ADDITIONAL PARTNERS. Additional general or limited
partners may be admitted from time to time by approval of the General Partner or
as otherwise provided in this Agreement except that the admission of such
additional partners shall not diminish the Percentage Share of any Partner in
the Partnership unless otherwise agreed by the Partner whose Percentage Share is
diminished.
SECTION 2.03. LIABILITY OF GENERAL PARTNER. The General Partner shall
have unlimited liability for the repayment, satisfaction and discharge of the
obligations of the Partnership to third parties dealing with the Partnership as
prescribed by law, except for non-recourse obligations which exculpt the
Partnership from liability. The General Partner is not liable to the Partnership
and the Limited Partners (i) for return of the Capital Contribution or any
portion thereof of any Limited Partner, (ii) on account of any disallowance or
adjustment by a taxing authority of deductions or credits in Partnership income
tax returns, (iii) on account of any failure by the Partnership to achieve any
forecasted financial return or (iv) for any action or omission to act not
constituting willful misconduct or gross negligence.
SECTION 2.04. LIMITATION UPON LIABILITY OF LIMITED PARTNERS. The
personal liability of each Limited Partner to the Partnership (except as
provided in Section 4.01), to the General Partner, to the creditors of the
Partnership or to any other third party for the losses, debts or liabilities of
the Partnership shall be limited to the amount of its Capital Contribution which
has not theretofore been returned to it as a Distribution (including a
Distribution upon liquidation). Distributions to a Limited Partner shall first
be deemed a return of its Capital Contribution for purposes of the foregoing
sentence. A Limited Partner shall not at any time be liable or held accountable
to the Partnership, to the other Partners, to the creditors of the Partnership
or to any other third party for or on account of any negative balance in its
Capital Account.
ARTICLE III
6
8
SCOPE OF PARTNERSHIP AND MODE OF OPERATION
SECTION 3.01. SCOPE OF PARTNERSHIP. The specific purpose of the
Partnership is to engage in the business of radio broadcasting and publishing.
The general purposes of the Partnership are to do each and every thing
necessary, suitable or proper for the accomplishment of the specific purpose or
the attainment of any one or more of the objects herein enumerated, either
alone, or in association with, or as agent or representative for, other
corporations (whether public, governmental or private), partnerships,
individuals, or entities, or to accomplish any other lawful business whatsoever,
or which shall at any time appear conducive to or expedient for the protection
or benefit of the Partnership.
SECTION 3.02. POWERS OF THE PARTNERSHIP. The Partnership shall have all
the powers permitted by law which are necessary or desirable in carrying out the
purposes and business of the Partnership, including, but not limited to, the
following powers:
(a) To borrow or raise money for any of the purposes of the
Partnership, and from time to time, without limitation as to amount, to draw,
make, accept, endorse, execute and issue promissory notes, drafts, bills of
exchange, warrants, bonds, debentures, evidences of indebtedness and other
instruments, and to secure the payment thereof, and the interest thereon, in any
manner, including without limitation by mortgage on, or pledge, conveyance or
assignment in trust of, the whole or any part of the assets of the Partnership,
real, personal or mixed, including contract rights and options, whether at the
time owned or thereafter acquired, and future earnings, and to sell, pledge or
otherwise dispose of such securities or other obligations of the Partnership for
the furtherance of its purpose.
(b) To act in any state or nation in which the Partnership may lawfully
act, for itself or as principal, agent or representative for any individual,
association, partnership, corporation or legal entity, respecting business of
the Partnership.
(c) To enter into, make, amend, perform and carry out, or cancel and
rescind, contracts and other obligations for any lawful purpose pertaining to
the business of the Partnership.
(d) To apply for, register, obtain, purchase or otherwise acquire
trademarks, trade names, labels and designs relating to or useful in connection
with any business of the Partnership, and to use, exercise, develop and license
the use of the same.
(e) To employ, on behalf of the Partnership, legal counsel, financial
counsel, accountants, professional advisors, Persons or entities for the
operation and management of the business of the Partnership.
(f) To establish accounts and deposits and maintain funds in the name
of the Partnership in banks or other financial institutions and to invest funds
of the Partnership
7
9
temporarily when not required for operation of its properties or distribution to
the Partners, in short-term debt obligations, including obligations of federal
and state governments, commercial paper and certificates of deposit of banks and
other financial institutions.
(g) To pay or reimburse any and all actual fees, costs and expenses
incurred in the formation and organization of the Partnership.
(h) To do all acts which are necessary, customary or appropriate for
the protection and preservation of the Partnership's assets, including the
establishment of reserves.
(i) To loan money to, borrow money from and engage in transactions with
Affiliates, subject to Section 3.06.
(j) To compromise, submit to arbitration, ▇▇▇ on, or defend claims in
favor of or against the Partnership.
(k) In general, to exercise all of the general rights, privileges and
powers permitted to be had and exercised by the provisions of the Act.
SECTION 3.03. MANAGEMENT OF THE PARTNERSHIP. The business and affairs
of the Partnership shall be managed by the General Partner, who may exercise the
powers specified in Section 3.02 on behalf of the Partnership, subject to the
restrictions in Section 3.04(b).
SECTION 3.04. LIMITATION ON POWERS.
(a) As between the Partners, no Partner shall:
(1) Use the Partnership name or assets in any way except
for the transaction of legitimate Partnership
business or do any act in contravention of this
Agreement; or
(2) Impart to any other person any information concerning
the financial statements or operations of the
Partnership except as may be necessary to carry on
the business of the Partnership or the General
Partner or as may be approved by the Partners or as
may be required by the Act, the Code, Treasury
Regulations, state or local tax laws, or other
applicable laws or regulations or orders of a court
of competent jurisdiction; or
(3) Do any act which would make it impossible to carry on
the business of the Partnership.
8
10
SECTION 3.05. NON-PARTICIPATION IN MANAGEMENT BY LIMITED PARTNERS.
Except as specifically provided in this Agreement, the Limited Partners as such
shall not participate in the control or management of the business of the
Partnership, nor act for and on behalf of the Partnership in any manner
whatsoever.
SECTION 3.06. DEALINGS WITH RELATED ENTITIES.
(a) The General Partner or any Affiliate of the General Partner may
contract or otherwise deal with the Partnership for the purchase or sale of
goods, property or services or for other purposes, and the Partnership shall
have the power to so contract or deal, provided that (i) the compensation paid
for and the terms of the transaction for such goods, services or property is
comparable to compensation charged and terms provided for similar goods,
services or property in an arms-length transaction, (ii) any goods, services or
property furnished to or acquired by the Partnership are in furtherance of the
Partnership business, and (iii) any material transaction between the General
Partner or any Affiliate and the Partnership is fully disclosed in writing to
the Limited Partners upon request. The validity of any transaction, agreement,
or payment involving the Partnership and an Affiliate otherwise permitted by
this Agreement shall not be affected by reason of the relationship between the
General Partner and the Affiliate or the approval of the transaction, agreement
or payment by the General Partner, which is otherwise interested in or related
to the Affiliate.
(b) If the General Partner is employed by or retained by the
Partnership in any capacity, compensation to such General Partner shall be
deemed to be for services rendered not in the General Partner's capacity as a
member of the Partnership, and it shall be treated for federal income tax
purposes as a payment described by either Section 707(a) or 707(c) of the Code.
SECTION 3.07. OTHER BUSINESS. Nothing contained in this Agreement shall
in any way or manner prohibit or restrict the right or freedom of any Partner,
any Affiliate of any Partner or any other Person to conduct or participate in
any business or activity individually or as a partner, shareholder or owner of
any partnership, corporation or other entity other than the Partnership without
any obligation or accountability to the Partnership or any other Partner, even
if such business or activity competes with the business of the Partnership; and
any entity which includes as a partner, shareholder or other owner a Partner,
any Affiliate or any other Person shall have the right at any time to own and
operate any business whatsoever other than the business of the Partnership,
either individually or with one or more parties, and shall not be required to
obtain the consent thereto by any other Partner or offer to any other Partner or
the Partnership a participation therein.
SECTION 3.08. INDEMNIFICATION. Each Person now or in the future an
officer, employee, agent or General Partner of the Partnership or an officer,
director, general partner, member, trustee or Affiliate of a General Partner
(and such Person's successors and assigns) shall be indemnified by the
Partnership against expenses (including, but not
9
11
limited to, attorneys' fees, related disbursements and removal of any liens
affecting any property of the indemnitee), judgments, fines, and amounts paid in
settlement, actually and reasonably incurred by such Person in connection with
any action, suit or proceeding to which such Person may be made a party by
reason of being, or having been, an officer, employee, agent or General Partner
of the Partnership or an officer, director, general partner, member, trustee or
Affiliate of a General Partner, or such Person's successor or assign (whether or
not continuing to be such at the time of incurring such expense), if such Person
acted in good faith and in a manner reasonably believed to be in and not opposed
to the best interests of the Partnership, and, with respect to any criminal
action or proceeding, had no reasonable cause to believe his conduct was
unlawful. Any such indemnification shall be limited to the assets of the
Partnership and shall not impose any personal liability upon any Partner. This
provision is intended to provide such indemnification as is permitted under
Indiana law; it shall not operate to indemnify any person in any case in which
such indemnification is for any reason contrary to law.
SECTION 3.09. TIME TO BE DEVOTED TO BUSINESS. The General Partner shall
devote such time to the Partnership's business as the General Partner, in its
sole discretion, shall deem to be necessary to manage and supervise the
Partnership's business and affairs in an efficient manner. Nothing in this
Agreement shall preclude the employment, at the expense of the Partnership, of
any agent or third party to manage or provide other services with respect to the
Partnership's business, subject to the control of the General Partner.
SECTION 3.10. LOANS TO THE PARTNERSHIP. In the event that additional
funds are required by the Partnership, the General Partner (or any Affiliate
thereof) may, at its option, loan such funds to the Partnership. Each such loan
shall be made upon terms and conditions substantially equivalent to those upon
which a commercial lending institution would make such a loan to an entity with
financial and business characteristics similar to the Partnership.
SECTION 3.11. REIMBURSEMENT OF EXPENSES. The Partnership shall
reimburse the General Partner for all out-of-pocket expenses reasonably incurred
by the General Partner or its partners, members, officers, employees or agents
in performing the duties of the General Partner under this Agreement.
SECTION 3.12. APPOINTMENT AND POWER OF GENERAL MANAGER AND ASSISTANT
GENERAL MANAGER.
(a) The General Partner may in its discretion appoint (or remove) a
general manager or an assistant general manager of the Partnership in accordance
with the provisions of this Section. Either of the General Manager or the
Assistant General Manager acting alone shall have full power and authority to
execute any and all documents on behalf of the Partnership including, but not
limited to, contracts, notes, mortgages, deeds and leases for and on behalf of
the Partnership, which, when so executed and delivered, shall be binding upon
the Partnership. Any responsibility or power specifically given to the General
Manager herein may be performed by the Assistant General Manager
10
12
if the General Manager is unavailable or unable to do so. Any person, firm or
corporation dealing with the Partnership may rely on the authority of the
General Manager or Assistant General Manager as outlined herein and need not
inquire into the authority of such person.
(b) The General Partner may remove such appointees and appoint (or
remove) any other person as General Manager and Assistant General Manager by
giving written notice thereof to the Partners, provided, however, any person,
firm or corporation may rely on the certification of the General Partner as to
who the General Manager or Assistant General Manager of the Partnership are and
need not inquire further.
(c) The General Manager and the Assistant General Manager shall not be
personally liable for any liabilities or obligations of the Partnership as a
result of holding the positions of General Manager or Assistant General Manager.
ARTICLE IV
CAPITAL CONTRIBUTIONS, PROFITS
AND LOSSES AND DISTRIBUTIONS
SECTION 4.01. CAPITAL CONTRIBUTIONS.
(a) The total Capital Contribution of the General Partner shall be as
specified in Exhibit A, payable upon execution of this Agreement.
(b) The total Capital Contribution of the Limited Partners shall be as
specified in Exhibit A, payable upon execution of this Agreement.
(c) From and after the date hereof, except as provided in this Section,
the Partners shall not be obligated to make further contributions to the
Partnership.
SECTION 4.02. DISTRIBUTABLE CASH DISTRIBUTIONS. Distributable Cash for
each fiscal year shall be determined and distributed annually to the Partners
prior to each March 31, computed for the period ended the previous December 31.
All Distributable Cash shall be distributed for the fiscal year. Distributions
of Distributable Cash shall be made to the Partners according to their
Percentage Shares.
SECTION 4.03. DISTRIBUTIONS FROM CAPITAL TRANSACTION. The Partnership's
share of the proceeds from a Capital Transaction shall be applied and
distributed in the following order, after adjusting Capital Accounts for all
Distributions under Section 4.02 and all allocations of Profits and Losses:
(a) To the payment of debts and liabilities of the Partnership deemed
appropriate by the General Partner to pay at that time in the order of priority
as provided
11
13
by law (other than those to Partners) including the expenses of or relating to
sale, refinancing, exchange, condemnation, destruction or other disposition;
(b) To the setting up of such reserves as are reasonably necessary for
any contingent liabilities or obligations of the Partnership or for the
operation of the Partnership, as determined solely by the General Partner in
good faith;
(c) To the payment of debts and liabilities of the Partnership to the
Limited Partners other than in respect to the Outstanding Capital Contributions
of the Limited Partners;
(d) To the payment of debts and liabilities of the Partnership to the
General Partner other than in respect of the Outstanding Capital Contributions
of the General Partner; and
(e) To the Partners in accordance with the positive balances in their
Capital Accounts.
SECTION 4.04. ALLOCATION OF PROFITS AND LOSSES.
(a) After giving effect to the special allocations set forth in
Sections 4.05 and 4.06 hereof, including chargebacks of minimum gain, for each
fiscal year of the Partnership or portion thereof, all Profits shall be
allocated as follows:
(i) Profits shall first be allocated to the Partners to
offset any net Losses allocated pursuant to
4.4(b)(ii) below until each Partner's Capital Account
has been brought equal to zero;
(ii) Profits shall then be allocated to offset any net
Losses allocated pursuant to 4.04(b)(i) below; and
(iii) Any remaining Profits shall be allocated to the
Partners according to their Percentage Shares.
(b) For each fiscal year of the Partnership or portion thereof, all
Losses shall be allocated to the Partners as follows:
(i) First, to each Partner having a positive balance in
its Capital Account in the proportion that such
Partner's positive Capital Account balance bears to
the total of all positive Capital Account balances of
Partners until all such positive Capital Account
balances equal zero; and
(ii) Second, to the Partners according to their Percentage
Shares.
12
14
(iii) Notwithstanding (i) and (ii) above, in accordance
with Treasury Regulations Section
1.704-1(b)(2)(ii)(d), the allocation of loss,
deduction or Code Section 705(a)(2)(B) Expenditures
to a Partner shall not exceed the maximum amount that
can be so allocated without causing a violation of
the alternate test of economic effect.
(c) In connection with any Capital Transaction treated as an
installment sale, Profits or Losses shall, for purposes of adjusting the
Partners' respective Capital Accounts, be allocated under the foregoing
provisions of this section as though the principal amount of the deferred
obligation were received in full at the time of sale. In connection with any
Capital Transaction properly treated as an installment sale under the Code, the
portion of the Profits or Losses in each installment allocable to a given
Partner shall, for federal income tax purposes, be in proportion to the
Partner's total share of Profits or Losses from the Capital Transaction
allocated to the Partner pursuant to the foregoing provisions of this section.
(d) For purposes of this section, the determination of a Partner's
Capital Account shall be made without taking into account any liabilities
treated as a contribution of money pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(c) (if the Partnership's payment of such liabilities would be
treated as a distribution of money pursuant to Treasury Regulations Section
1.704-1(b)(2)(iv)(c)).
SECTION 4.05. SPECIAL ALLOCATIONS.
(a) The Partnership shall make the qualified income offset allocation
required by the alternate test for economic effect under Section
1.704-1(b)(2)(ii)(d) of the Treasury Regulations.
(b) In the event any Partner has a deficit Capital Account at the end
of any Partnership fiscal year that is in excess of the amount such Partner is
obligated to restore to the Partnership, each such Partner shall be specially
allocated items of Partnership income and gain in the amount of such excess as
quickly as possible.
(c) The Partnership shall make as appropriate to the Partnership and
the Partners all allocation of nonrecourse deductions and minimum gain
chargebacks in accordance with the Code and Treasury Regulations.
SECTION 4.06. CURATIVE ALLOCATIONS.
(a) Notwithstanding any other provision of this Agreement, the
allocations made pursuant to Section 4.05 hereof shall be taken into account in
allocating other Profits, Losses, and items of income, gain, loss, and deduction
among the Partners so that, to the extent possible, the net amount of such
allocations to each Partner shall be equal to the net amount that would have
been allocated to each such Partner if the allocations made pursuant to Section
4.05 had not occurred.
13
15
(b) The Tax Matters Partner shall have reasonable discretion, with
respect to each Partnership fiscal year, to (i) apply the provisions of this
Sections 4.06 in whatever order is likely to minimize the economic distortions
that might otherwise result from the allocations made pursuant to Section 4.05
SECTION 4.07. OTHER ALLOCATION RULES. Solely for purposes of
determining a Partner's proportionate share of the "excess nonrecourse
liabilities" of the Partnership within the meaning of Section 1.752-3(a)(3) of
the Treasury Regulations, such excess nonrecourse liabilities shall be allocated
among the Partners in the manner in which it is reasonably expected (as
determined by the Tax Matters Partner) that the deductions attributed to those
nonrecourse liabilities will be allocated.
SECTION 4.08. TAX ALLOCATIONS; CODE SECTION 704(C). In the event any
Partnership property is reflected on the books of the Partnership at a book
value that differs from the adjusted tax basis of such property at the time of
its contribution to the Partnership or its revaluation pursuant to Treasury
Regulations Section 1.704-1(b)(2)(iv)(d) or 1.704-1(b)(2)(iv)(f), respectively,
income, gain, loss, and deduction with respect to such property shall, solely
for tax purposes, be allocated among the Partners in the manner required by Code
Section 704(c) and Treasury Regulations Section 1.704-1(b)(4)(i).
SECTION 4.09. GENERAL PROVISIONS. Whenever a proportionate part of
Partnership Profit or Loss is credited or charged to a Partner's Capital
Account, every item of income, gain, loss, deduction, credit or tax preference
entering into the computation of such Profit or Loss, or applicable to the
period during which such Profit or Loss was realized, shall be considered
credited or charged, as the case may be, to such account in the same proportion;
provided, however, that in the event of an increase or a decrease in the
interest of a Partner at any time after the Partnership's initial fiscal year
other than at the end of a fiscal year of the Partnership, the share of the
Profits and Losses and the net Distributable Cash of the Partnership shall be
allocated among the Persons whose shares are changed in the same ratio as the
number of days in such Partnership fiscal year before and after the date of such
transfer, except that sale Profits and Losses, refinancing proceeds and the
gain, loss and proceeds arising out of other extraordinary transactions shall be
credited to the Person who is a Partner as of the date of such event.
SECTION 4.10. NO INTEREST ON CAPITAL ACCOUNTS. No Partner shall be
entitled to receive any interest from the Partnership on account of the amount
of such Partner's Capital Account.
SECTION 4.11. DISTRIBUTION OF PROPERTY. Unless the Partners otherwise
agree, in the event it becomes necessary to make a distribution of Partnership
property in kind, then such property shall be transferred and conveyed to the
Partners, or their assigns, so as to vest in each of them as a tenant-in-common,
a percentage interest in the whole of said property equal to the percentage
interest such Partner would have received had such property not been distributed
in kind.
14
16
SECTION 4.12. RETURN OF CAPITAL CONTRIBUTION. Except as provided in
this Agreement, no Partner shall be entitled to withdraw any part of its Capital
Contribution or to receive any distributions from the Partnership except as
provided by this Agreement. No Partner shall have the right to demand or receive
property other than cash in return for its Capital Contribution; and if upon
dissolution the Partnership property remaining after the payment or discharge of
debts and liabilities of the Partnership is insufficient to return said
contributions, a Limited Partner shall have no recourse against the General
Partner or any other Limited Partner.
ARTICLE V
ACCOUNTING, REPORTING AND HOLDING OF ASSETS
SECTION 5.01. FISCAL YEAR. The fiscal year of the Partnership shall
commence on the 1st day of March and continue through the last day of February.
SECTION 5.02. ACCOUNTING. The books of account and records of the
Partnership shall be located at such place as may be specified by the General
Partner and shall be kept and maintained on a federal income tax basis. All
assets of the Partnership shall be reflected on the books of the Partnership at
their adjusted basis as determined for the purpose of reporting gain or loss
under the Code.
SECTION 5.03. RIGHT TO INSPECTION. Each Partner or such Partner's duly
authorized agent shall at all reasonable times have access to and the right to
inspect and copy any of the books and records of the Partnership.
SECTION 5.04. HOLDING AND TRANSFER OF ASSETS. All property, real or
personal, owned by the Partnership shall be deemed to be owned by the
Partnership as an entity, and no Partner or Assignee, individually or
collectively, shall have any ownership interest in such Partnership assets or
any portion thereof. Title to any or all of the Partnership assets may be held
in the name of the Partnership, of the General Partner, or of one or more
nominees, as the General Partner may determine. The General Partner hereby
declares and warrants that any Partnership assets for which legal title is held
in its name shall be held in trust by the General Partner for the use and
benefit of the Partnership in accordance with the terms or provisions of this
Agreement. All Partnership assets shall be recorded as the property of the
Partnership on its books and records, without respect to the name in which legal
title to such Partnership assets is held. Any deed, ▇▇▇▇ of sale, note,
mortgage, contract for sale or other document to which the Partnership is a
party shall be valid and binding upon the Partnership if signed only by the
General Partner, and any Person dealing with the Partnership may fully rely on
the authority granted by this section and shall not be required to make any
inquiry or investigation of the authority of such Person.
SECTION 5.05. BANK ACCOUNTS. Funds of the Partnership may be deposited
in its name in such bank account or accounts as shall be designated from time to
time by the
15
17
General Partner. All withdrawals from Partnership accounts shall be made upon
checks signed by or upon the authorization of the General Partner. The General
Partner may designate one or more Persons to sign checks upon its authorization.
SECTION 5.06. TAX STATUS; NOTICE OF TAX CONTROVERSY. The Partnership
shall be treated and shall file its tax returns as a partnership for federal,
state and municipal income tax and other tax purposes. If any Partner shall
receive notice of a tax examination of the Partnership by federal, state or
local authorities, such Partner shall immediately give notice thereof to the
other Partners.
SECTION 5.07. TAX MATTERS PARTNER; TAX ELECTIONS. The Person named in
Section 1.04 as "Tax Matters Partner" is hereby designated as the tax matters
partner of the Partnership under Subchapter C of Chapter 63 as contained in
subtitle F of the Code. All elections permitted to be made by the Partnership
under the Code shall be made by the Tax Matters Partner. Without limiting the
generality of the foregoing, the Tax Matters Partner is authorized to make an
election on behalf of the Partnership under Section 754 of the Code. On or
before February 28 of each year or as soon as practicable thereafter (but prior
to the expiration of any extension for filing of tax returns), the Tax Matters
Partner shall cause to be prepared and distributed to the Partners the
Partnership's federal and state tax returns. Failure of any Partner to object to
the tax return within thirty (30) days after receipt of its K-1 Schedule (or any
substitute or additional form hereafter required by the Code or Treasury
Regulations) shall be deemed to be approval of such tax return as filed.
SECTION 5.08. TAX MATTERS PARTNER NOT LIABLE. The Tax Matters Partner
shall not be liable to any Partner or the Partnership on account of any action
taken or not taken so long as he shall act in good faith in such capacity.
Without limiting the generality thereof, the Tax Matters Partner shall be deemed
to have acted in good faith in taking any action which benefits Partners holding
at least 50% of the interest in the Partnership, measured by Percentage Shares.
ARTICLE VI
DISSOLUTION OF PARTNERSHIP
SECTION 6.01. DISSOLUTION. The Partnership shall be dissolved and,
unless continued, its assets shall be disposed of and its affairs wound up upon
the occurrence of any of the following events:
(a) The Partners voluntarily agree to dissolve the Partnership.
(b) The term stated in Section 1.03 expires.
(c) The Bankruptcy of the Partnership.
16
18
(d) The withdrawal, termination of existence or Bankruptcy of the
General Partner and the failure of the Limited Partners to exercise the right
provided in the first sentence of Section 7.02.
SECTION 6.02. DEEMED CONTRIBUTION AND LIQUIDATION. Notwithstanding any
other provisions of this Article VI, in the event the Partnership is liquidated
within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g) but
where the Partnership is continued, the Partnership's assets shall not be
liquidated, the Partnership's liabilities shall not be paid or discharged, and
the Partnership's affairs shall not be wound up. Instead, the Partnership shall
be deemed to have contributed its assets to a new partnership (the "Successor
Partnership"), and immediately thereafter, the Partners shall be deemed to have
received interests in the Successor Partnership in liquidation of the
Partnership without effecting any change in the ownership of interests in the
Partnership or the Successor Partnership as a result of such contribution and
liquidation.
ARTICLE VII
CHANGES IN GENERAL PARTNER
SECTION 7.01. WITHDRAWAL OF THE GENERAL PARTNER. The General Partner
shall not voluntarily withdraw from the Partnership or sell, assign or otherwise
dispose of all or substantially all of its assets, or take any action described
in items (B), (C) or (D) of the definition of "Bankruptcy" in Section 1.04, or
sell, assign, or otherwise dispose of its Partnership interest without the prior
written consent of Limited Partners owning a majority of the Percentage Shares
owned by all Limited Partners.
SECTION 7.02. CONTINUATION OF PARTNERSHIP. In the event of the
Bankruptcy, termination of existence or withdrawal of the General Partner, all
powers granted to the General Partner shall terminate and the Limited Partners
owning a majority of the Percentage Shares owned by all Limited Partners shall
have the right to select a new general partner or general partners and to
continue the business of the Partnership as a successor limited partnership. If
the Limited Partners exercise such right, the successor limited partnership
shall be governed by the terms and provisions of this Agreement.
17
19
ARTICLE VIII
CHANGES IN LIMITED PARTNERS
SECTION 8.01. DISSOLUTION OR BANKRUPTCY OF A LIMITED PARTNER. The
dissolution or Bankruptcy of a Limited Partner shall not dissolve the
Partnership. Upon notice of such event thereof to the General Partner and the
receipt by the General Partner of all instruments of transfer and other
documents for the protection of the Partnership as the General Partner deems
appropriate under the circumstances, the successor interest of the dissolved or
Bankrupt Limited Partner shall become an Assignee of the interest of such
Limited Partner and be entitled, subject to the terms and conditions of this
Agreement, to all further allocations and distributions on account of the
interest of such Limited Partner in the Partnership; however, no transferee of
the interest of the dissolved or Bankrupt Limited Partner shall become a
Substituted Partner without first obtaining the written consent of the General
Partner.
SECTION 8.02. TRANSFER AND ASSIGNMENT OF LIMITED PARTNERSHIP INTEREST.
(a) A Limited Partner shall have the right to assign the whole or any
portion of its interest in the Partnership to any Person by a written
assignment; provided that (i) the terms of such assignment are not in
contravention of any of the provisions of this Agreement; (ii) such assignment
is fully executed by the assignor and Assignee; (iii) such assignment is
received by the Partnership and recorded on the books thereof; (iv) the General
Partner, in its sole discretion, approves the transfer, and (v) the Limited
Partner provides an opinion, if required by the General Partner, satisfactory to
the General Partner, that no material adverse tax or securities law effects will
result from such assignment.
(b) In the event of an assignment of a Limited Partner's interest, the
following rules shall govern:
(i) The effective date of an assignment of Partnership
interest shall be that date set forth on the written
instrument of assignment; provided, however, that no
assignment shall be retroactive.
(ii) Anything herein to the contrary notwithstanding, both
the Partnership and the General Partner shall be
entitled to treat the Partner or Assignee with
respect to such Partnership interest as the absolute
owner thereof in all respects and shall incur no
liability for Distributions of cash or other property
made in good faith to such Partner or Assignee until
such time as the written assignment has been
delivered to the Partnership for registration of the
assignment and any
18
20
required approvals are given.
(iii) An Assignee shall be entitled to receive
Distributions of cash or other property from the
Partnership attributable to the interest acquired by
reason of such assignment from and after the date of
the assignment of such interest to the Assignee
except as provided in subparagraph (ii) above.
(iv) The Profits, Losses, income, expense, deductions or
credits attributable to the interest acquired by
reason of such assignment shall be divided among and
allocated between the assignor and Assignee of such
interest and in accordance with subparagraph (v)
below.
(v) The division and allocation of Profits, Losses,
income, expense, deductions or credits attributable
to the Partnership interest between assignor and
Assignee during any fiscal year of the Partnership
shall be based upon the length of time during such
fiscal year, as measured by the effective date of the
assignment, that the interest was owned by each of
them and shall not be based upon the date or dates
during such fiscal year on which Profits were earned
or Losses were incurred by the Partnership.
SECTION 8.03. SUBSTITUTION AS A LIMITED PARTNER. No Assignee of the
whole or any portion of a Limited Partner's interest shall have the right to
become a Substituted Partner in place of the assignor unless all of the
following conditions are satisfied:
(i) The assignor and Assignee execute and acknowledge a
written instrument of assignment, together with such
other instruments as the General Partner may deem
necessary or desirable to effect the admission of the
Assignee as a Substituted Partner.
(ii) Such instrument of assignment provided for herein has
been delivered to and received by the General
Partner.
(iii) The conditions to such substitution in Section 8.04
have been satisfied and any approvals required by
Section 8.05 to such substitution have been obtained.
(iv) The written consent of the General Partner to such
substitution has been obtained, the granting or
denial of which shall be within the sole and absolute
discretion of the General Partner; provided that the
consent of the General Partner to such substitution
shall be withheld if the General Partner shall
19
21
not have received evidence satisfactory to it that
the Substituted Partner is authorized to acquire the
interest so assigned and has the appropriate
financial resources to acquire and maintain the
Partnership interest assigned to it.
(v) A transfer fee has been paid to the Partnership which
is sufficient to cover all reasonable expenses
connected with such assignment and substitution,
including, but not limited to, legal and filing or
recording fees.
SECTION 8.04. ADDITIONAL CONDITIONS TO ASSIGNMENT AND SUBSTITUTION. The
General Partner and the Partnership shall not recognize any assignment or
substitution for any purpose if (a) such transfer together with prior transfers
would result in the sale or exchange of fifty percent (50%) or more of the total
interest in the Partnership capital and profits within a twelve-month period, or
(b) the Partnership shall not have received, if required by the General Partner,
an opinion of counsel to the effect that such sale (i) will not result in
termination of the Partnership under the Act; (ii) will not result in
termination of the Partnership for federal income tax purposes or, if it does
result in such a termination, such termination will not cause material adverse
federal income tax consequences to the Partnership or the Partners requesting
the opinion; (iii) will not change the status of the Partnership as a
partnership for federal income tax purposes; (iv) will not give rise to
liability of the Partnership, any Partner or any agent or advisor of any Partner
for violation of the securities laws of the United States or any state thereof;
and (v) will not cause the Partnership to become subject to payment of the
Indiana Gross Income Tax.
SECTION 8.05. EFFECT OF TRANSFER. Any Assignee or other transferee of
an interest in the Partnership shall take subject to the restrictions and
conditions to assignment imposed by this Article.
ARTICLE IX
LIQUIDATION
SECTION 9.01. LIQUIDATION DETERMINATION. In the event of dissolution
where continuation of the Partnership is not provided for, the Partnership shall
be liquidated. For purposes of this Article IX, liquidation for tax purposes
shall occur upon the earlier of the date upon which the Partnership is
terminated under Code Section 708(b)(1) or the date upon which the Partnership
ceases to be a going concern (even though it may continue in existence for the
purpose of winding up its affairs, paying its debts, and distributing any
remaining balance to the Partners).
20
22
SECTION 9.02. ALLOCATION OF LIQUIDATION PROCEEDS.
(a) Upon liquidation of the Partnership, the proceeds shall be applied
and distributed in the following manner and order of priority:
(i) to the payment of liabilities of creditors other than
Partners and to the expenses of liquidation;
(ii) to the setting up of any reserves which the General
Partner determines reasonably necessary for any
contingent liabilities of the Partnership or of any
Partner arising out of or in connection with a
Partnership liability, which revenues shall be paid
over by the General Partner to an escrow agent or
shall be held for the purpose of disbursing such
reserves in payment of any such contingent
liabilities and, at the expiration of such period as
the General Partner shall deem advisable, the balance
of which shall be distributed as otherwise provided
in this section;
(iii) to the payment of any liabilities to the Partners
(other than Capital Accounts), arising out of or in
connection with a Partnership liability, or if the
amount available for such payment is insufficient, a
pro rata portion thereof; and
(iv) the remainder to the Partners in accordance with
Article IV of this Agreement.
(b) Liquidation proceeds shall be distributed within the time limits
required by the Code.
SECTION 9.03. LIQUIDATION PROCEDURE. A reasonable time, as determined
by the General Partner, from the date of an event of dissolution shall be
allowed for the orderly liquidation of the assets of the Partnership and the
discharge of its liabilities. Upon the completion of dissolution in accordance
with the terms hereof, the Partnership shall terminate and the General Partner
shall execute, acknowledge and cause to be filed a certificate of cancellation
of the Partnership whereupon it shall cease to exist in all respects. In the
event of a dissolution of the Partnership, liquidation of the assets of the
Partnership and discharge of its liabilities may be carried out by a liquidation
trustee or receiver, who shall be a bank or trust company or other Person or
firm having experience in managing, liquidating or otherwise handling property
of the type then owned by the Partnership. Such liquidating trustee or receiver
shall be designated by the General Partner. A liquidation trustee shall be not
personally liable for the debts of the Partnership but otherwise shall have such
obligations and authorities as are given the General Partner pursuant to this
Agreement or as may be agreed upon between the Partners and said
21
23
liquidation trustee.
ARTICLE X
PAYMENTS TO GENERAL PARTNER AND AFFILIATES
SECTION 10.01. PARTNERSHIP EXPENSES. The Partnership shall pay all
expenses (which expenses shall be billed directly to the Partnership) of the
Partnership which may include, but are not limited to: (i) all costs of
personnel employed by the Partnership and involved in the business of the
Partnership, (ii) all costs of borrowed money and taxes applicable to the
Partnership, (iii) legal, audit, accounting, brokerage and other fees, (iv)
printing, engraving and other expenses and taxes incurred in connection with the
issuance, distribution, transfer, registration and recording of documents
evidencing ownership of an interest in the Partnership or in connection with the
business of the Partnership, (v) fees and expenses paid to independent
contractors, brokers, consultants and other agents, (vi) the cost of any
insurance required in connection with the business of the Partnership, (vii)
expenses of organizing, revising, amending, converting, modifying or terminating
the Partnership, (viii) expenses in connection with distributions made by the
Partnership to, and communications and bookkeeping and clerical work necessary
in maintaining relations with the Limited Partners, including the cost of
preparation of consents, (ix) expenses in connection with preparing reports
required to be furnished to the Limited Partners for investor, tax reporting or
other purposes, or which reports the General Partner deems the furnishing
thereof to the Limited Partners to be in the best interests of the Partnership,
(x) costs of any accounting, statistical or bookkeeping equipment necessary for
the maintenance of the books and records of the Partnership, and (xi) the cost
of preparation and dissemination of the informational material and documentation
relating to potential sale, refinancing or other disposition of Partnership
assets.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01. NOTICE. All notices, elections, consents and approvals
under this Agreement shall be in writing, and shall be effectively given to any
Partner if delivered to the Partner or if mailed by certified mail, return
receipt requested, to such Partner at the address provided to the Partnership.
Any Partner may change his or its address for notice by giving notice of such
change to the General Partner.
SECTION 11.02. CONSTRUCTION. This Agreement shall be governed by and
construed in accordance with the laws of the State of Indiana. In the event any
laws, rules, or regulations applicable to the Partnership require any Partner,
or any group or class thereof, to have certain rights, options, privileges, or
consents not granted by the terms of this Agreement, then such Partners shall
have and enjoy such rights, options, privileges,
22
24
and consents so long as (but only so long as) the existence thereof does not
result in a loss of the limitation on liability enjoyed by any other Limited
Partner under the Act or the applicable laws of any other jurisdiction.
SECTION 11.03. ASSIGNS AND SUCCESSORS IN INTEREST. Except as otherwise
provided herein, this Agreement shall be binding upon and shall run for the
benefit of the parties executing this Agreement, and the personal
representatives, heirs, legatees, devisees, assigns and successors in interest
of the Partners.
SECTION 11.04. ASSIGNMENT. No Partner to this Agreement may assign its
Partnership interest or any right therein to any other Person except with the
express written consent of the other Partners or as otherwise provided in this
Agreement. However, in the event of any assignment of a Partnership interest in
accordance with the provisions of this Agreement, the Partners agree to execute
such documents as may be necessary to effectuate such change, including required
changes to this Agreement and the Certificate described in Section 11.06.
SECTION 11.05. AMENDMENT.
(a) The General Partner, without obtaining the consent of the Limited
Partners, may amend this Agreement at any time, in its sole and exclusive
discretion, but only to reflect:
(i) a change in the name of the Partnership;
(ii) a change in the principal place of business of the
Partnership;
(iii) the admission, substitution, termination, or
withdrawal of Partners in accordance with this
Agreement;
(iv) a change in address of any Partner;
(v) a change that is (A) of an inconsequential nature and
does not adversely affect any Limited Partner or any
Assignees in any material respect, or (B) required or
contemplated by this Agreement;
(vi) a change in any provision of this Agreement which
requires any action to be taken by or on behalf of
the General Partner or the Partnership pursuant to
the requirements of applicable law if the provisions
of applicable law are amended, modified, or revoked
so that the taking of such action is no longer
required; or
(vii) any other amendments similar to the foregoing.
23
25
The authority set forth in subsection (vi) shall specifically include the
authority to make such amendments to this Agreement and to the Certificate of
Limited Partnership as the General Partner deems necessary or desirable in the
event the Act is amended to eliminate or change any provision now in effect.
(b) This Agreement may be otherwise amended upon the consent of both
the General Partner and the Limited Partners owning at least a majority of the
Percentage Shares owned by all Limited Partners.
SECTION 11.06. CERTIFICATE OF LIMITED PARTNERSHIP. The Partnership
shall file a Certificate of Limited Partnership in such office or offices in
such jurisdiction or jurisdictions where such a filing is required by applicable
law or deemed desirable by the General Partner. In the event of any change
requiring the cancellation or amendment of such certificate under the Act or
such other applicable law, the General Partner shall cause the certificate to be
cancelled or amended in accordance with law by an appropriate filing, without
the necessity of first obtaining the prior consent of the Limited Partners.
SECTION 11.07. FURTHER ASSURANCES. The Partners will execute and
deliver such further instruments and do such further acts and things as may be
necessary to carry out the intent and purpose of this Agreement.
SECTION 11.08. WARRANTIES OF REPRESENTATIVES. Each Person executing
this Agreement on behalf of a party hereto represents and warrants that he has
been fully empowered to execute this Agreement, and that all necessary action
for the execution of this Agreement has been taken.
SECTION 11.09. COMPUTATION OF TIME. In computing any period of time
pursuant to this Agreement, the day of the act, event or default from which the
designated period of time begins to run shall not be included. The last day of
the period so computed shall be included, unless it is a Saturday, Sunday or a
legal holiday, in which event the period shall run until the end of the next day
that is not a Saturday, Sunday or legal holiday.
SECTION 11.10. IDENTIFICATION OF OWNERS. If any governmental agency
requires reporting or disclosure of ownership, control or financial condition,
each Partner and Assignee shall, upon request of the General Partner, promptly
submit to the General Partner a list showing the name and address of all Persons
having any direct, indirect or beneficial ownership of such Partner or Assignee,
together with such Person's ownership interest.
SECTION 11.11. CAPTIONS. Article titles or captions contained in this
Agreement are inserted only as a matter of convenience and for reference and in
no way define, limit, extend or describe the scope of this Agreement or the
intent of any provision hereof.
SECTION 11.12. IDENTIFICATION. Whenever the singular number is used in
this Agreement and when required by the context, the same shall include the
plural; and the
24
26
masculine gender shall include the feminine and neuter genders.
SECTION 11.13. COUNTERPARTS. This Agreement may be executed in any
number of counterparts or by separate signature pages identified as such and all
of such counterparts or signature pages shall for all purposes constitute an
agreement binding on the parties hereto, notwithstanding that all parties are
not signatory to the same counterpart or signature page.
SECTION 11.14. PARTNERS' CAPABILITY. Anything in this Agreement to the
contrary notwithstanding, no Partner, or any Assignee of the interests thereof,
shall be a Person or organization prohibited by law from becoming such. Any
assignment of an interest in the Partnership to any Person or organization not
meeting such standard shall be void and ineffective and shall not bind the
Partnership.
SECTION 11.15. SEVERABILITY. If any provision of this Agreement shall
be declared invalid or unenforceable, the remainder of this Agreement will
continue in full force and effect so far as the intent of the parties can be
carried out.
SECTION 11.16. LIMITATION ON BENEFITS OF THIS AGREEMENT. It is the
explicit intention of the Partners that no Person other than the Partners and
the Partnership (and, to the extent provided in Section 3.08, the Persons
entitled to be indemnified thereunder) is or shall be entitled to bring any
action by or on behalf of the Partnership to enforce any provision of this
Agreement against any Partner (or its successors and assigns) or the
Partnership, and that the covenants, undertakings, and agreements set forth in
this Agreement shall be solely for the benefit of, and shall be enforceable only
by, the Partners (or their respective successors and assigns as permitted
hereunder) and the Partnership (and, to the extent provided in Section 3.08, the
Persons entitled to be indemnified thereunder).
SECTION 11.18. APPROVAL OR CONSENT. Except as otherwise provided
herein, any approval or consent required in this Agreement by Partners shall be
deemed given upon the affirmative vote at a meeting, or the execution of a
written ballot or consent form indicating consent, by Partners owning at least a
majority of the Percentage Shares owned by all Partners required so to consent
to or approve the matter. The terms "consent" and "approve" have the same
meanings in this Agreement and shall be interchangeable for purposes of applying
the Act.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement of
Limited Partnership this 17th day of June, 1998.
GENERAL PARTNER:
EMMIS BROADCASTING CORPORATION
25
27
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President
26
28
LIMITED PARTNERS:
TEXAS MONTHLY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice
President
27
29
EXHIBIT A
PARTNERS AND THEIR INTERESTS
PERCENTAGE
PARTNER SHARE
General Partner:
Emmis Broadcasting Corporation 1%
Limited Partners:
Texas Monthly, Inc. 99%
28
30
FIRST AMENDMENT
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
EMMIS TELEVISION BROADCASTING, L.P.
The undersigned partners of Emmis Television Broadcasting, L.P.
(hereinafter referred to as the "Partnership") hereby amend the Agreement of
Limited Partnership of the Partnership (the "Partnership Agreement") as follows:
Section 1. The exact text of Article I Section 1.01 of the Partnership
Agreement now reads as follows:
Name. The name of the Partnership is Emmis Television Broadcasting,
L.P.
Section 2. In all other respects, the Partnership Agreement shall
remain in full force and effect.
This First Amendment to the Agreement of Limited Partnership is
effective as of June 17, 1998.
Emmis Broadcasting Corporation
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Texas Monthly, Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
2
31
SECOND AMENDMENT
TO
AGREEMENT OF LIMITED PARTNERSHIP
OF
EMMIS TELEVISION BROADCASTING, L.P.
The undersigned partners of Emmis Television Broadcasting, L.P.
(hereinafter referred to as the "Partnership") hereby amend the Agreement of
Limited Partnership of the Partnership (the "Partnership Agreement") as follows:
Section 1. The exact text of Article III, Section 3.01 of the
Partnership Agreement now reads as follows:
Scope of Partnership. The specific purpose of the Partnership is to
engage in the business of television broadcasting. The general purposes
of the Partnership are to do each and every thing necessary, suitable
or proper for the accomplishment of the specific purpose or the
attainment of any one or more of the objects herein enumerated, either
alone, or in association with, or as agent or representative for, other
corporations (whether public, governmental or private), partnerships,
individuals, or entities, or to accomplish any other lawful business
whatsoever, or which shall at any time appear conducive to or expedient
for the protection or benefit of the Partnership.
Section 2. In all other respects, the Partnership Agreement shall
remain in full force and effect.
This Second Amendment to the Agreement of Limited Partnership is
effective as of January 22, 2000.
EMMIS BROADCASTING CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President
TEXAS MONTHLY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Executive Vice President