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EXHIBIT 3.93
THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
▇▇▇▇▇▇ MEDIA, A California Limited Partnership
(formerly COLORADO RIVER MARKETS,
A California Limited Partnership)
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TABLE OF CONTENTS
Page
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ARTICLE 1. DEFINITIONS ...................................................................1
1.1. Act ...............................................................................1
1.2. Affiliate .........................................................................1
1.3. Affiliate Transaction .............................................................2
1.4. Agreement .........................................................................2
1.5. Asset Sale ........................................................................2
1.6. Asset Sale Proceeds ...............................................................2
1.7. Assignee ..........................................................................2
1.8. Available Asset Sale Proceeds .....................................................2
1.9. Bankruptcy; Bankrupt ..............................................................2
1.10. Bankrupt Limited Partner .........................................................3
1.11. Book Value .......................................................................3
1.12. Business Day .....................................................................3
1.13. Capital Account ..................................................................3
1.14. Cash Available for Distribution ..................................................3
1.15. Capital Contribution .............................................................3
1.16. Capital Transactions .............................................................3
1.17. Certificate of Limited Partnership ...............................................3
1.18. Change of Control ................................................................3
1.19. Change of Control Offer ..........................................................4
1.20. Change of Control Payment Date ...................................................4
1.21. Change of Control Purchase Price .................................................4
1.22. Code .............................................................................4
1.23. Credit Agreement .................................................................4
1.24. Dissolved; Dissolution ...........................................................4
1.25. Distribution .....................................................................4
1.26. Exchange Act .....................................................................4
1.27. General Partner ..................................................................4
1.29. Incompetent; Incompetency ........................................................5
1.30. Initial Warrants .................................................................6
1.31. ▇▇▇▇ Subsequent Acquisition ......................................................6
1.32. Limited Partner ..................................................................6
1.33. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ..............................................................6
1.34. Majority of the Limited Partners .................................................6
1.35. Minimum Gain .....................................................................6
1.36. Net Income; Net Loss .............................................................6
1.37. Nonrecourse Liability ............................................................7
1.38. Notice of Proposed Sale ..........................................................7
1.39. Partner ..........................................................................7
(i)
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1.40. Partner-Funded Debt ...............................................................7
1.41. Partnership .......................................................................7
1.42. Partnership Assets ................................................................7
1.43. Person ............................................................................7
1.44. Preferred Limited Partnership Units ...............................................7
1.45. Preferred Return ..................................................................7
1.46. Preferred Unit Certificates .......................................................7
1.47. Preferred Units; Units of Preferred Limited Partnership Interests .................7
1.48. Preferred Units Capital Account Amount ............................................8
1.49. Purchase Agreement ................................................................8
1.50. Quarterly Warrants ................................................................8
1.51. Record Date .......................................................................8
1.53. Redemption Date ...................................................................8
1.54. Redemption Notice .................................................................8
1.55. Regulatory Allocations ............................................................8
1.56. Selling Limited Partner ...........................................................8
1.58. Temporary Cash Investments ........................................................9
1.59. Time of Purchase ..................................................................9
1.60. Transfer ..........................................................................9
1.61. Units: Units of Common Partnerships Interests .....................................9
1.62. U.S. Government Obligations........................................................9
1.63. Warrants ..........................................................................9
1.64. Warrants Agreement ................................................................9
1.65. Warrants Units ....................................................................9
ARTICLE 2. ORGANIZATION ...................................................................9
2.1. Formation ..........................................................................9
2.2. Name ...............................................................................9
2.3. Principal Office ..................................................................10
2.4. Agent for Service of Process ......................................................10
2.5. Term of the Partnership ...........................................................10
2.6. Purposes ..........................................................................10
ARTICLE 3. CAPITAL CONTRIBUTIONS AND FINANCING ...........................................10
3.2. Units Upon Execution of Agreement .................................................10
3.3. Loans by a Partner ................................................................10
3.4. Withdrawal of Capital .............................................................10
3.5. Redemption ........................................................................10
3.6. Loans from the Partnership ........................................................11
3.7. Additional Capital Contributions and Admission of New Partners ....................11
ARTICLE 4. ACCOUNTING ....................................................................12
4.1. Capital Accounts ..................................................................12
(ii)
4
4.2. Fiscal Year, Tax Matters Partner ..................................................13
4.3. Books and Records to be Maintained ................................................13
4.4. Information to be Provided to the Limited Partners ................................13
4.5. Interim Closing of the Books ......................................................14
4.6. Tax Withholding ...................................................................14
ARTICLE 5. NET INCOME AND NET LOSS; DISTRIBUTIONS ........................................14
5.1. Allocation of Income and Loss .....................................................14
5.2. Built-in Gain .....................................................................15
5.3. Minimum Gain Chargeback ...........................................................15
5.4. Qualified Income Offset ...........................................................15
5.5. Partner-Funded Debt ...............................................................16
5.6. Curative Allocations ..............................................................16
5.7. Excess Non-Recourse Liability Safe Harbor .........................................16
5.8. Treatment of Interest to Partners .................................................16
5.9. Transfer During Taxable Year ......................................................16
5.10. Depreciation Recapture ...........................................................17
5.11. Economic Allocations .............................................................17
5.12. Distributions ....................................................................17
5.13. Distributions Limitation .........................................................18
5.14. Cash Distributions in respect of Preferred Units .................................18
ARTICLE 6. RIGHTS AND DUTIES OF THE GENERAL PARTNER ......................................18
6.1. General Partner Compensation; Expenses ............................................18
6.2. Partnership Expenses ..............................................................19
6.3. Time Devoted to the Partnership ...................................................19
6.4. Partnership Governance ............................................................20
6.5. Competing Interests ...............................................................21
6.6. Restriction on Powers of the General Partner ......................................21
6.7. Limitation on General Partner Liability ...........................................21
6.8. Indemnification of General Partner ................................................21
6.9. Certain Transactions; General Partner Agreements ..................................22
6.10. Warrants .........................................................................22
ARTICLE 7. RIGHTS AND DUTIES OF LIMITED PARTNERS .........................................22
7.1. Basic Rights ......................................................................22
7.2. Prohibition Against Involvement in Management .....................................23
7.3. Acts Not Constituting Management ..................................................23
(iii)
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ARTICLE 8. VOTING, MEETINGS AND PROXIES ..................................................23
8.1. Actions Requiring Approval by the Limited Partners ................................23
8.2. Actions Requiring Unanimous Consent of the Limited Partners .......................23
8.3. Meetings - Place ..................................................................24
8.4. Meetings - Calling ................................................................24
8.5. Meetings - Notice .................................................................24
8.6. Meetings - Quorum .................................................................24
8.7. Written Consent Without Meeting ...................................................25
8.8. Proxies ...........................................................................25
ARTICLE 9. DISPOSITION OF LIMITED PARTNER INTERESTS ......................................25
9.1. Withdrawal of Limited Partner .....................................................25
9.2. Transfers Restricted ..............................................................25
9.3. Transfers to Trust ................................................................25
9.4. Transfer to a Legal Entity.........................................................26
9.5. Transfer to Beneficial Owners .....................................................26
9.6. Substituted Limited Partner .......................................................26
9.7. Effect of Assignment and Substitution .............................................27
9.8. Assignee's Capital ................................................................27
ARTICLE 10. PURCHASE OPTIONS .............................................................27
10.1. Option to Purchase Interest in Event of Death of a Limited Partner ...............27
10.2. Option to Purchase Interest in the Event of Divorce of a Limited Partner .........28
10.3. Option to Purchase Interest in the Event of Bankruptcy of a Limited Partner ......29
10.4. Option to Purchase Interest in Event of Incompetency of a Limited Partner.........30
10.5. Option to Purchase Interest in the Event of Notice of Proposed Sale to a Third-
party Purchaser ................................................................30
10.6. Limitation .......................................................................31
ARTICLE 11. PURCHASE PRICE AND TERMS .....................................................32
11.1. Purchase Price ...................................................................32
11.2. Effective Date ...................................................................32
ARTICLE 12. TERMINATION AND ADMISSION OF A GENERAL PARTNER ...............................32
12.1. Termination of a General Partner .................................................32
12.2. No Removal of General Partner ....................................................33
12.3. Transfer by General Partner ......................................................33
12.4. Permissible Transfers by MW Sign Corp. ...........................................33
12.5. Withdrawal of General Partner ....................................................33
12.6. Additional General Partner .......................................................33
12.7. Termination of General Partner ...................................................33
(iv)
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ARTICLE 13. DISSOLUTION AND TERMINATION OF PARTNERSHIP ...................................33
13.1. Dissolution and Termination ......................................................33
13.2. Reconstitution ...................................................................34
13.3. Events Not Dissolving the Partnership ............................................34
13.4. Winding Up .......................................................................35
13.5. Waiver of Rights to Court Decree of Dissolution ..................................36
ARTICLE 14. SPECIAL POWER OF ATTORNEY ....................................................36
14.1. Attorney-in-Fact .................................................................36
14.2. Special Provisions ...............................................................37
ARTICLE 15. COVENANTS ....................................................................37
ARTICLE 16. CERTAIN PROVISIONS APPLICABLE TO PREFERRED UNITS .............................38
16.1. Redemption .......................................................................38
16.2. Limitation on Certain Asset Sales ................................................39
16.3. Change of Control ................................................................41
16.4. Subordination Agreement ..........................................................43
ARTICLE 17. MISCELLANEOUS ................................................................43
17.1. Headings .........................................................................43
17.2. Time of Essence ..................................................................43
17.3. Entire Agreement; Modification; Waiver ...........................................43
17.4. Amendment ........................................................................44
17.5. Governing Law ....................................................................44
17.6. Recovery of Litigation Costs .....................................................44
17.7. Severability .....................................................................44
17.8. Notices ..........................................................................45
17.9. Gender and Number ................................................................45
17.10. Additional Documents ............................................................45
17.11. Parties in Interest .............................................................45
17.12. Counterparts ....................................................................45
17.13. Statutory References ............................................................45
17.14. Certificate of Nonforeign Status ................................................45
17.15. Preferred Units Certificates ....................................................45
17.16. .................................................................................46
(v)
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THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
OF
▇▇▇▇▇▇ MEDIA, A California Limited Partnership
(formerly COLORADO RIVER MARKETS. A California Limited Partnership)
This Third Amended and Restated Limited Partnership Agreement is made and
entered into by and between MW Sign Corp., a California corporation, as the
General Partner, and the Limited Partners shown on Exhibit A, attached and
incorporated by this reference.
Background
A. Colorado River Markets, A California Limited Partnership, was
formed on December 19, 1984) with ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Inc., a California
corporation, as General Partner, and was operated in accordance with a Limited
Partnership Agreement dated December 18, 1984, as amended until on or about
August 22, 1991.
B. On or about August 22, 1991, in accordance with the First Amended
and Restated Limited Partnership Agreement (adopted by unanimous written consent
of the Partners), ▇▇▇▇▇▇ & MacFarlane, Inc., transferred its interest as
General Partner to MW Sign Corp., who was admitted as the General Partner, and
the name of the Partnership was changed from Colorado River Markets, A
California Limited Partnership, to ▇▇▇▇▇▇ Media, A California Limited
Partnership.
C. Effective as of September 30, 1991, the Partners executed a
Second Amended and Restated Limited Partnership Agreement for the Partnership.
D. Effective as of May 1, 1996, the Partners executed a First
Amendment to Second Amended and Restated Limited Partnership Agreement for the
Partnership.
E. Effective as of January 1, 1997, the Partners executed a Second
Amendment to Second Amended and Restated Limited Partnership Agreement for the
Partnership.
The Partners desire to amend and restate the agreement of the parties.
ARTICLE 1. DEFINITIONS.
1.1 Act. The California Revised Limited Partnership Act.
1.2. Affiliate. Any Person directly or indirectly through one or more
intermediaries controlling, controlled by or under common control with another
Person. The term "control" (including the terms "controlled by" and "under
common control with") means the possession, direct or indirect, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
Notwithstanding the foregoing, no holder of Preferred Units, Warrants or Warrant
Units, as such, shall be deemed an Affiliate of the Partnership or the General
Partner.
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1.3. Affiliate Transaction. As defined in Section 15.1(b).
1.4. Agreement. This Third Amended and Restated Limited Partnership
Agreement, as amended from time to time in accordance with the provisions
hereof.
1.5. Asset Sale. The sale, transfer or other disposition (other than
to the Partnership or any of its wholly-owned Subsidiaries) in any single
transaction or series of related transactions of (a) any capital stock of or
other equity interest in any Subsidiary of the Partnership, (b) real property
interest in or/real property (other than real property or interest in real
property) or (c) all or substantially all of the assets (other than real
property or interest in real property) of any business, or part thereof, owned
by the Partnership or any Subsidiary thereof, or a division, line of business or
comparable business segment of the Partnership or any Subsidiary thereof. Any
transaction constituting a Change of Control shall not be deemed to be an Asset
Sale.
1.6. Asset Sale Proceeds. With respect to any Asset Sale, (i) cash
received by the Partnership or any Subsidiary from such Asset Sale, after (a)
provision for all income tax distributions or other taxes measured by or
resulting from such Asset Sale, (b) payment of all brokerage commissions,
underwriting and other fees and expenses related to such Asset Sale, (c)
provision for minority interests in any Subsidiary as a result of such Asset
Sale and (d) deduction of appropriate amounts to be provided by the
Partnership or a Subsidiary as a reserve, in accordance with generally accepted
accounting principles, against any liabilities associated with the assets sold
or disposed of in such Asset Sale and retained by the Partnership or a
Subsidiary after such Asset Sale, including without limitation, pension and
other postemployment benefit liabilities and liabilities related to
environmental matters or against any indemnification obligations associated
with assets sold or disposed of in such Asset Sale, and (ii) promissory notes
and other non-cash consideration received by the Partnership or any Subsidiary
from such Asset Sale or other disposition upon the liquidation or conversion of
such notes or non-cash consideration into cash.
1.7. Assignee. A Person who has acquired a beneficial interest in this
Partnership from a Partner but who is not a substituted Partner.
1.8. Available Asset Sale Proceeds. With respect to any Asset Sale,
the aggregate Asset Sale Proceeds from such Asset Sale that have not been
applied in accordance with clause (iii)(A) or (iii)(B) of Section 16.2 and which
have not been the basis for an Excess Proceeds Offer in accordance with clause
(iii)(C) of such Section 16.2.
1.9. Bankruptcy, Bankrupt. Any of the following (a) the filing of a
voluntary, petition under any federal or state law for the relief of debtors
including the filing of a voluntary petition under any Chapter of Title 11 of
the United States Code; (b) the filing of an involuntary proceeding under any
such law; (c) the making of a general assignment for the benefit of the
assignor's creditors; (d) the appointment of a receiver or trustee of a
substantial portion of a Person's assets; (e) the seizure by a sheriff, receiver
or trustee of a substantial portion of a Person's assets; provided that no
bankruptcy shall occur in the case of an event described in clause (b), (d) or
(e) above, until the proceeding, appointment or seizure has been pending or has
been in force for sixty (60) days.
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1.10. Bankrupt Limited Partner. As defined in Section 10.3.
1.11. Book Value. The amount carried on the books of the Partnership
for financial accounting purposes.
1.12. Business Day. A day that is not a Saturday, a Sunday or a day on
which banking institutions in the State of New York or in the State of
California are not required to be open.
1.13. Capital Account. As defined in Section 4.1.
1.14. Cash Available for Distribution. The excess of the Partnership's
positive cash flow over the Partnership's working capital needs. The
Partnership's positive cash flow shall mean the excess of cash receipts over
cash disbursements for any given period. The Partnership's working capital
needs shall be determined by the General Partner and shall include, but not be
limited to, reasonable reserves for current and future operating expenses, debt
service, contingencies and emergencies. The terms of the Partnership's
borrowings as negotiated by the General Partner may severely restrict Cash
Available for Distribution.
1.15. Capital Contribution. With respect to any Partner at any time,
the aggregate amount of cash and the Gross Asset Value of any property (other
than cash) contributed to the Partnership by such Partner as of such time.
1.16. Capital Transactions. Any of the following: (i) any sale,
exchange, taking by eminent domain, damage, destruction or other disposition of
all or any part of the assets of the Partnership, other than tangible personal
property disposed of in the ordinary course of business; or (ii) any financing
or refinancing of any Partnership indebtedness; provided however, that the
receipt by the Partnership of Capital Contributions shall not constitute
Capital Transactions.
1.17. Certificate of Limited Partnership. The certificate referred to
in Section 15621 of the Act and any amendments thereto.
1.18. Change of Control. The occurrence of one or more of the following
events: (i) any sale, lease, exchange or other transfer (in one transaction or a
series of related transactions however effected, including, without limitation,
by way of merger or reorganization) of assets of the Partnership or Subsidiaries
thereof, which assets constitute all or substantially all of the assets of the
Partnership and its Subsidiaries, taken as a whole, to any Person or group of
related Persons for purposes of Section 13(d) of the Exchange Act (a "Group"),
together with any Affiliates thereof; (ii) the approval by the General Partner
or Partners of any plan or proposal for the liquidation or dissolution of the
Partnership or an event of dissolution as described in Section 13.1(c) occurs;
(iii) E. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, individually or in the aggregate,
shall cease to beneficially own (for purposes of this definition, within the
meaning of Rule 13d-3 under the Exchange Act), directly or indirectly, voting
capital stock of the Managing General Partner (as defined in the last sentence
of this definition) representing more than 50% of all such outstanding voting
common stock; (iv) any Person or Group (other than E. ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇) shall become the owner, directly or indirectly, beneficially or of
record, of Units representing more than a 50% interest in the profits, losses
and distributions of the
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Partnership or 50% or more of the Units then outstanding; (v) the replacement of
a majority of the Board of Directors of the Managing General Partner over a
two-year period from the directors who constituted the Board of Directors of the
Managing General Partner at the beginning of such period, and such replacement
shall not have been approved by a vote of at least two-thirds of the Board of
Directors of the Managing General Partner then still in office who either were
members of such Board of Directors at the beginning of such period or whose
election as a member of such Board of Directors was previously so approved; or
(vi) the occurrence of any "Change of Control" as defined in the Credit
Agreement either as in effect on the date hereof or as defined in such Agreement
as the same may hereafter be amended. The Managing General Partner of the
Partnership means each general partner thereof that has sole power, directly or
indirectly, to take all of the actions that any and all general partners are
entitled or required to take under this Agreement, as in effect at the Time of
Purchase.
1.19. Change of Control Offer. As defined in Section 16.3.
1.20. Change of Control Payment Date. As defined in Section 16.3.
1.21. Change of Control Purchase Price. As defined in Section 16.3.
1.22. Code. The Internal Revenue Code of 1986, as amended, or
corresponding provisions of subsequent federal revenue laws.
1.23. Credit Agreement. The Second Amended and Restated Credit
Agreement, dated as of July 31, 1997, among the Partnership, the General
Partner, the Lenders, the Administrative Agent and the Co-Agent (as such terms
are defined therein), as amended by Amendment No. 3 thereto, dated as of
December 23, 1997, as the same may be amended from time to time.
1.24. Dissolved; Dissolution. The termination of a trust or an estate
or the dissolution of a partnership, corporation or other legal entity as
determined by applicable state law.
1.25. Distribution. The transfer of money or property by the
Partnership to a Partner without consideration.
1.26. Exchange Act. The Securities Exchange Act of 1934, as amended.
1.27. General Partner. MW Sign Corp. or any Person succeeding it as
General Partner or any subsequently admitted General Partner.
1.28. Gross Asset Value means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be the gross fair market
value of such asset, as determined by the General Partner
and the contributing Partner.
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(b) The Gross Asset Values of all Partnership assets immediately
prior to the occurrence of any event described in
subsections (i) through (iv) hereof shall be adjusted to
equal their respective gross fair market values, as
determined by the General Partner using such reasonable
method of valuation as it may adopt in its reasonable
discretion as of the following times:
(i) the acquisition of an interest in the Partnership by a
new or existing Partner in exchange for more than a
de minimis Capital Contribution, if the General
Partner reasonably determines that such adjustment is
necessary or appropriate to reflect the relative
economic interests of the Partners in the Partnership;
(ii) the distribution by the Partnership to a Partner of
more than a de minimis amount of Partnership Assets as
consideration for an interest in the Partnership, if
the General Partner reasonably determines that such
adjustment is necessary or appropriate to reflect the
relative economic interests of the Partners in the
Partnership;
(iii) the liquidation of the Partnership within the meaning
of Regulation Section 1.704-1(b)(2)(ii)(g); and
(iv) at such other times as the General Partner shall
reasonably determine necessary or advisable in order
to comply with Regulation Sections 1.704-1(b) and
1.704-2.
(c) The Gross Asset Value of any Partnership Asset distributed
to a Partner shall be the gross fair market value of such
asset on the date of distribution as reasonably determined
by the General Partner.
(d) The Gross Asset Values of Partnership Assets shall be
increased (or decreased) to reflect any adjustments to the
adjusted basis of such assets pursuant to Code Section
734(b) or Code Section 743(b), but only to the extent that
such adjustments are taken into account in determining
Capital Accounts pursuant to Regulation Section
1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset
Values shall not be adjusted pursuant to this subparagraph
(d) to the extent that the General Partner reasonably
determines that an adjustment pursuant to subparagraph (b)
is necessary or appropriate in connection with a
transaction that would otherwise result in an adjustment
pursuant to this subparagraph(d).
1.29. Gross Asset Value means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, except as follows:
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1.30. Initial Warrants. As defined in the Purchase Agreement.
1.31. ▇▇▇▇ Subsequent Acquisition. As defined in the Credit Agreement
as in effect on the date hereof.
1.32. Limited Partner. Each of the Persons admitted to the Partnership
as a Limited Partner in accordance with this Agreement. For purposes of the
Transfer provisions contained in this Agreement, the Persons deemed Limited
Partners and spouses are shown on Exhibit A and/or B.
1.33. ▇▇▇▇▇▇ & MacFarlane shall mean ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Inc., a
California corporation.
1.34. Majority of the Limited Partners. Limited Partners holding more
than fifty percent (50%) of the Units held by all the Limited Partners. The
term "Majority of the Limited Partners" shall be used in lieu of the term
"majority-in-interest of the limited partners" as defined in Act Section
16611(u) for all purposes in connection with this Agreement.
1.35. Majority of Preferred Units. Holders of more than 85% of the
outstanding Preferred Units at the time of the termination: provided that
from and after the date on which CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. has sold (other than
to its Affiliates) more than 3.750 of the Preferred Units purchased by it on the
date hereof, such percentage shall be 50%.
1.36. Minimum Gain. The amount determined, at the end of a taxable year
of the Partnership, by computing, with respect to each Nonrecourse Liability and
each Partner-Funded Debt of the Partnership, the amount of net gains from
Capital Transactions (of whatever character), if any, that would be realized by
the Partnership if it disposed of (in a taxable transaction) the Partnership
property subject to such Nonrecourse Liability or Partner-Funded Debt in full
satisfaction thereof, and by then aggregating the amounts so computed. For the
purpose of determining the amount of such gain, (i) only that portion of the
Partnership's Gross Asset Value allocable, pursuant to the Treasury Regulations
under Section 704(b) of the Code, to such Nonrecourse Liability or
Partner-Funded Debt shall be taken into account, (ii) the Gross Asset Value of
Partnership property shall be computed after taking into account depreciation
for such year and (iii) the amount of the unpaid principal balance of each
Nonrecourse Liability shall be reduced by repayments of all or a portion of such
Nonrecourse Liability made during each year.
1.37. Net Income: Net Loss. "Net Income" or "Net Loss" for each taxable
year or other period shall be the taxable income or loss of the Partnership
determined in accordance with Code section 703(a) (for this purpose, all items
of income, gain, loss or deduction required to be separately stated pursuant to
Code section 703(a)(1) shall be included in taxable income or loss) using the
accrual method of accounting, including tax-exempt income and as adjusted as
provided in Treasury Regulations section 1.704-1(b)(2)(iv)(i), but excluding any
items that are specially allocated pursuant to Article 5. The amounts of the
items of Partnership income, gain, loss or deduction available to be
specifically allocated pursuant to Article 5 hereof shall be determined by
applying rules analogous to those set forth in this definition of Net Income or
Net Loss. Net
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Income and Net Losses and items thereof shall be determined and allocated with
respect to each fiscal year of the Partnership as of the end of such fiscal
year.
1.39. Nonrecourse Liability. Has the meaning set forth in Section
1.704-2(b)(3) of the Treasury Regulations.
1.40. Notice of Proposed Sale. As defined in Section 10.5.
1.41. Partner. Any Person who is a limited Partner or a General Partner
in the Partnership.
1.42. Partner-Funded Debt. Any non-recourse indebtedness of the
Partnership which is loaned or guaranteed by any Partner or is treated as
"partner nonrecourse debt" under Section 1.704-2(b)(4) of Treasury Regulations.
1.43. Partnership. The Partnership formed by this Agreement.
1.44. Partnership Assets. All direct and indirect interests in real and
personal property owned by the Partnership from time to time, and shall include
both tangible and intangible property (including cash).
1.45. Person. An individual, partnership, limited liability company,
trust, estate, association, corporation or other entity, as well as a guardian,
trustee, executor, administrator, committee, trustee in bankruptcy, receiver,
assignee for the benefit of creditors, conservator or other Person acting in a
fiduciary capacity.
1.46. Preferred Limited Partnership Interests. Limited partnership
interests having the rights to distributions set forth in Section 5.12(b)(1) and
(2) hereof and Section 13.4(b) insofar as such Section refers to Section
5.12(b)(1) and (2) hereof.
1.47. Preferred Return. With respect to a holder of Preferred Units, an
amount sufficient to provide to such holder an annual rate of return, compounded
quarterly, on the excess (on a weighted average basis during each fiscal year of
the Partnership), if any, of (i) the aggregate Capital Contributions previously
made (or deemed to be made) by such holder in respect of such Units (increased
by all accrued but unpaid Preferred Returns from prior fiscal quarters), over
(ii) any distributions received by such holder pursuant to Section 5.12(b)(1)
(to the extent the Preferred Returns allocable to such distribution was
previously taken into account under (i) above) and Section 5.12(b)(2) equal to
(a) 14%, from December 23, 1997 until June 23, 1998; (b) 15%, from June 23, 1998
until September 23, 1998; and (c) 15% plus 50 basis points for each three-month
period in which any Preferred Units shall remain outstanding from and after
September 23, 1998; provided, however, that the Preferred Return shall not
exceed a rate of 20% per annum compounded quarterly.
1.48. Preferred Unit Certificates. As defined in Section 16.1.
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1.49. Preferred Units Capital Account Amount. The aggregate amount,
at the time of determination thereof, of the Capital Accounts for all Preferred
Units, determined without giving effect to any Preferred Return previously
credited to such Capital Accounts; and, when used with reference to any
Preferred Unit, the Preferred Units Capital Account Amount allocable to such
Unit.
1.50. Purchase Agreement. The Purchase Agreement, dated as of
December 23, 1997, by and among the Partnership, the General Partner and the
Purchasers set forth on Schedule I thereto.
1.51. Quarterly Warrants. As defined in the Purchase Agreement.
1.52. Record Date. As defined in Section 11.1(a).
1.53. Redemption Amount. The aggregate amount, at the time of
determination thereof, of the Capital Accounts for all Preferred Units plus the
Preferred Return for all such Units (to the extent not previously credited to
such Capital Accounts) to the applicable Redemption Date or purchase date
hereunder; and, when used with reference to any Preferred Unit, the Redemption
Amount allocable to such Unit.
1.54. Redemption Date. With respect to any Preferred Units, the date
fixed for redemption of such Units pursuant to Section 16.1.
1.55. Redemption Notice. As defined in Section 16.1.
1.56. Regulatory Allocations. Has the meaning set forth in Section 5.6.
1.57. Selling Limited Partner. As defined in Section 10.5.
1.58. Subsidiary. With respect to any specified Person, any
corporation, partnership, joint venture, limited liability company, association
or other business entity, whether now existing or hereafter organized or
acquired, (i) in the case of a corporation, of which more than 50% of the total
voting power of the capital stock entitled (without regard to the occurrence of
any contingency) to vote in the election of directors, officers or trustees
thereof is held by such first-named Person or any of its Subsidiaries; or (ii)
in the case of a partnership, joint venture, limited liability company,
association or other business entity, with respect to which such first-named
Person or any of its Subsidiaries has the power to direct or cause the direction
of the management and policies of such entity by contract or otherwise or if in
accordance with generally accepted accounting principles such entity is
consolidated with the first-named Person for financial statement purposes.
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1.59. Temporary Cash Investments. (i) Investments in U.S. Government
Obligations maturing within 365 days of the date of purchase; (ii) investments
in certificates of deposit issued by a bank organized under the laws of the
United States of America or any state thereof or the District of Columbia, in
each case having capital, surplus and undivided profits totaling more than
$500,000,000 and rated at least A by Standard & Poor's Corporation and A-2 by
▇▇▇▇▇'▇ Investors Service Inc. maturing within 365 days of purchase; or (iii)
investments not exceeding 365 days in duration in money market funds that
invest substantially all of such funds' assets in investments described in the
preceding clauses (i) and (ii).
1.60. Time of Purchase. As defined in the Purchase Agreement.
1.61. Transfer. Sell, pledge, transfer, encumber, assign or otherwise
dispose of property.
1.62. Units the number of Units shall not exceed 10,000. Preferred
Units shall not constitute Units. The number of Units held by each Partner in
the Partnership are set forth in Exhibit A, attached hereto and made a part
hereof. Subsequent to the admission of additional Limited Partners acquiring
Units, the Transfer of Units or the redemption of Units, the General Partner is
authorized to revise Exhibit A to reflect the Units of each Partner after
giving effect to such transaction. The General Partner shall provide a copy of
Exhibit A, as revised, to each Limited Partner.
1.63. U.S. Government Obligations. (a) Securities that are direct
obligations of the United States of America for the payment of which its full
faith and credit are pledged or (b) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America, which, in either case,
are not callable or redeemable at the option of the issuer thereof.
1.64. Warrants. As defined in the Purchase Agreement.
1.65 Warrant Agreement. The Warrant Agreement, dated as of December
23, 1997, by and among the Partnership, the Warrant Agent (as defined therein)
and MW Sign Corp.
1.66. Warrant Units. As defined in the Warrant Agreement.
ARTICLE 2. ORGANIZATION.
2.1. Formation. The Partnership was formed on December 19, 1984, by
filing a Certificate of Limited Partnership in the office of the California
Secretary of State in accordance with Section 15621 of the Act.
2.2. Name. The name of the Partnership is ▇▇▇▇▇▇ Media, A California
Limited Partnership.
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2.3. Principal Office. The principal office of the Partnership is
located at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and may be changed
to such place as the General Partner shall determine.
2.4. Agent for Service of Process. The name and address of the agent
for service of process shall be determined by the General Partner.
2.5. Term of the Partnership. The Partnership commenced as of the
date of filing of the Certificate of Limited Partnership in the office of the
California Secretary of State on December 19, 1984. The Partnership shall
continue until December 31, 2024, or until Dissolution of the Partnership as
otherwise provided in this Agreement.
2.6. Purposes. The purposes of the Partnership are to purchase,
construct, manage, operate and hold for investment and sell outdoor advertising
structures, and invest in and hold interests in joint ventures, limited
liability companies, corporations or similar entities, and transfer assets into
such Subsidiary entities, and do all things reasonably incident thereto,
including but not limited to borrowing money for Partnership purposes and
securing such borrowing at any time.
ARTICLE 3. CAPITAL CONTRIBUTIONS AND FINANCING.
3.1. Intentionally left blank.
3.2. Units Upon Execution of Agreement. Upon execution of this
Agreement, the number of Units held by the Partners and the number of Preferred
Units held by certain Limited Partners shall be as set forth on Exhibits A and B
hereto, respectively.
3.3. Loans by a Partner. A Partner may make a loan to the Partnership
or may advance money on the Partnership's behalf only with the prior written
consent of the General Partner. Any loan or advance shall not increase the
Capital Account of the Partner or entitle the Partner to any greater share of
Partnership Distributions or subject the Partner to any greater share of
Partnership Net Income or Net Loss. The amount of the loan or advance shall:
(a) be a debt owed by the Partnership; (b) be evidenced by appropriate loan
documentation; and (c) bear interest at a fair market rate.
3.4. Withdrawal of Capital. No partner shall have the right or power
to withdraw capital from the Partnership or to reduce the Partner's Capital
Account except as provided in this Agreement. No partner shall receive interest
on Capital Contributions.
3.5. Redemption. Subject to the provisions of Section 15.1: The
General Partner is authorized without the consent of the Limited Partners to
cause the Partnership to redeem such interest of any of the Limited Partners as
the General Partner deems appropriate, from time to time, on such terms as the
General Partner deems it in the best interest of the Partnership to offer to any
Limited Partner, provided that such Limited Partner covenants to such terms. If
the General Partner causes the Partnership to redeem an interest in the
Partnership from a Person who is an Affiliate of the General Partner, the
General Partner shall be authorized to cause the Partnership to redeem such
interest on terms that the General Partner believes in good faith are not more
than what a Limited Partner who is not an Affiliate of the General Partner would
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receive. The General Partner may require the Partnership to redeem such
Affiliate's interest notwithstanding that the General Partner is aware that any
unaffiliated Limited Partner is desiring for such unaffiliated Limited Partner
to have its interest redeemed. The Limited Partners intend that the General
Partner shall have the absolute right to select what Limited Partner's interest
or Limited Partners' interests shall be redeemed. This selection right may be
made without regard to whether such Person is affiliated with the General
Partner. Upon redemption of Units held by a Limited Partner, the General Partner
shall transfer to the Partnership for no consideration a number of Units held by
the General Partner such that the quotient obtained by dividing the number of
Units held by the General Partner by the aggregate number of Units held by all
Partners, in which case immediately after such redemption, equals the quotient
obtained by dividing the number of Units held by the General Partner by the
aggregate number of Units held by all Partners, in each case immediately before
such redemption.
3.6. Loans from the Partnership. Subject to the provisions of Section
15.1, in any subsequent offerings of limited Partnership interests, the General
Partner in its sole discretion may cause the Partnership to make a loan to
Persons desiring to purchase limited Partnership interests. The Limited Partners
acknowledge that the General Partner has caused the Partnership to assume a loan
from Nevada Outdoor Systems, Inc. ("NOS") to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in the amount of
ONE HUNDRED THOUSAND DOLLARS ($100,000) in connection with the acquisition of
certain assets and liabilities of NOS, and that such loan will be repaid on or
before January 10, 1998.
3.7. Additional Capital Contributions and Admission of New Partners.
a) Subject to Section 15.1: The General Partner shall have the
right to admit one or more additional Limited Partners to the Partnership or
approve admission or substitution of a member in any limited liability company
or limited partner in any other limited partnership in which the Partnership has
an interest on terms and conditions as the General Partner deems to be in the
best interests of the Partnership. It is contemplated that the Partnership may
acquire additional outdoor advertising structures or entities that engage in
outdoor advertising businesses through the exchange of limited partnership
interests for such assets. In addition, the General Partner may admit one or
more additional Limited Partners to the Partnership for cash or property
contributions to the capital of the Partnership on such terms as the General
Partner, in its discretion, determines. Upon the admission of a Limited Partner,
the Partnership shall issue to the General Partner for no consideration a number
of Units such that the quotient obtained by dividing the number of Units held by
the General Partner by the aggregate number of Units held by all Partners, in
each case immediately before such admission, equals the quotient obtained by
dividing the number of Units held by the General Partner by the aggregate number
of Units held by all Partners, in each case immediately after such admission.
b) Notwithstanding the foregoing, the Partnership shall not
issue any other interests in the Partnership on a parity or senior basis with
respect to distributions (or otherwise) to be made on the Preferred Units
pursuant to this Agreement "without the consent of holders of at least 85% of
the Preferred Units then outstanding.
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ARTICLE 4. ACCOUNTING.
4.1. Capital Accounts.
a) Maintenance of Capital Accounts. A Capital Account shall be
established and maintained for each Partner. Each Partner's Capital Account
shall be maintained in a manner consistent with Treasury Regulations section
1.704-1(b)(2)(iv).
b) Calculation of Capital Accounts. Each Partner's Capital
Account shall be:
(1) Increased by the amount of money contributed by the
Partner to the Partnership;
(2) Increased by the fair market value of property
contributed by the Partner to the Partnership (net of liabilities securing such
contributed property, that the Partnership is considered to assume or take
subject to under section 752 of the Code);
(3) Increased by allocations to the Partner of Partnership
income and gain or items thereof including income and gain except from tax
(except to the extent such income or gain has previously been reflected in the
Partner's Capital Account by adjustments thereto);
(4) Decreased by the amount of money distributed to the
Partner by the Partnership;
(5) Decreased by the fair market value of property
distributed to the Partner (net of liabilities securing such distributed
property that such Partner is considered to assume or take subject to under
section 752 of the Code);
(6) Decreased by allocations of Partnership loss, deduction
or items thereof except to the extent such loss or deduction has previously been
reflected in the Partner's Capital Account by adjustments thereto and
expenditures described in section 705(a)(2)(B) of the Code, and
(7) Otherwise adjusted in accordance with Treasury
Regulations section 1.704-1(b)(2)(iv).
c) Adjustment Upon Distribution of Property. If Partnership
property is distributed to a Partner, then, before the Capital Account of such
Partner is adjusted as required by this Section 4.1, the Capital Accounts of the
Partners shall be adjusted to reflect the manner in which the unrealized income,
gain, loss and deduction inherent in such property (that has not been reflected
in such Capital Accounts previously) would be allocated among the Partners if
there were a taxable disposition of such property for its fair market value on
the date of Distribution.
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d) Holders of Preferred Units. In addition to the adjustments set
forth in this Section 4.1(b), the Capital Account for each holder of Preferred
Units shall be adjusted as provided in Section 5.1(a).
4.2. Fiscal Year; Tax Matters Partner. The Partnership shall
continue to use a fiscal year ending on December 31 for all purposes. The
General Partner, MW Sign Corp., shall be the Partnership's tax matters partner
for purposes of Code section 6231(a)(7).
4.3. Books and Records to be Maintained. The Partnership shall keep
at its principal office full and accurate books and records, including the
following:
a) Partners. A current list of the full name and last known
business or residence address of each Partner set forth in alphabetical order,
together with the Capital Contribution and share in Net Income and Net Loss of
each Partner;
b) Certificate of Limited Partnership. A copy of the Certificate
of Limited Partnership and all certificates of amendment thereto, together with
executed copies of any powers of attorney pursuant to which any Certificate
of Limited Partnership has been executed;
c) Tax Returns. Copies of the Partnership's federal, state and
local income tax or information returns and reports, if any, for the six (6)
most recent fiscal years;
d) Agreement. Copies of the original Partnership Agreement and
all amendments thereto, together with executed copies of any powers of attorney
pursuant to which any amendment has been executed;
e) Financial Statements. Financial statements of the Partnership
for the six (6) most recent fiscal years; and
f) Books and Records. The Partnership's books and records for
the three (3) most recent fiscal years.
4.4. Information to be Provided to the Limited Partners.
a) Information Maintained by Partnership. At the expense of the
Partnership and upon demand by a Limited Partner or a Limited Partner's agent or
attorney, the General Partner shall promptly furnish a copy of the information
required to be maintained by Section 4.3.
b) Limited Partner Inspection Rights. A Limited Partner or the
Limited Partner's agent or attorney has the right, upon reasonable request, to
inspect and copy during normal business hours any of the Partnership records
required to be maintained by Section 4.3.
c) Tax Information. The General Partner shall send to each of
the Partners, within ninety (90) days after the end of each taxable year, such
information as is necessary to complete the Partner's federal and state income
tax or information returns and a copy of the Partnership's federal, state and
local tax or information returns for the year.
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d) Annual Report. The General Partner shall cause an annual
report to be sent to each of the Partners within one hundred twenty (120) days
after the end of each fiscal year. The report will include the financial
statements of the Partnership. If the financial statements are compiled,
reviewed or audited, they will be accompanied by the report of any independent
certified public accounting firm that compiled, reviewed or audited them.
4.5. Interim Closing of the Books. There shall be an interim closing
of the books of account of the Partnership at such time as the Partnership's
taxable year ends pursuant to the Code and at such other times as the General
Partner shall determine is required by generally accepted accounting practices
or is appropriate under the circumstances.
4.6. Tax Withholding. The Partnership shall at all times be entitled
to make payments with respect to any Partner in amounts required to discharge
any legal obligation of the Partnership pursuant to any provision of the Code,
the Treasury Regulations or any other tax provision or any provision enacted in
the future imposing a similar obligation of the Partnership to withhold or make
payments to any governmental authority with respect to any U.S. federal, state
and local or foreign tax liability of such Partner arising as a result of such
Partner's Units.
ARTICLE 5. NET INCOME AND NET LOSS; DISTRIBUTIONS.
5.1. Allocation of Income and Loss.
a) Preferred Return. The Capital Account of each holder
of Preferred Units, as such, shall be credited with gross income for each
fiscal year in an amount equal to the Preferred Return for the fiscal year,
whether or not actually paid as a distribution on such Preferred Units, it being
understood that such gross income will be treated as a "guaranteed payment"
within the meaning of Section 707(c) of the Code.
b) Allocation of Net Income or Net Loss.
(1) Net Loss for any fiscal year shall be allocated among the
Partners as follows:
(a) First, to all Partners (other than to holders of
Preferred Units, as such) according to their respective Units, with
consideration given for the varying Units of such Partners during such year;
(b) Second, to holders of Preferred Units, as such, to
the extent of their positive Capital Account balances in respect of their
respective Preferred Units;
(c) Third, to the General Partner.
(2) Net Income for any fiscal year shall be allocated among
the Partners as follows:
(a) First, to the General Partner to the extent of Net
Loss allocated to the General Partner under Section 5.1(b)(1)(c);
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(b) Second, to holders of Preferred Units, as such, to the
extent of and in proportion to the amount by which the Net Loss allocated to
each such Partner for the current and all prior fiscal years of the Partnership
under Section 5.1(b)(1)(b) exceeds the Net Income allocated to each such
Partner for the current and all of the prior fiscal years of the Partnership
under this Section 5.1(b)(2)(b);
(c) Third, to the Partners, to the extent of, and in
proportion to, the amount by which the Net Loss allocated to each such Partner
for the current and all prior fiscal years of the Partnership under Section
5.1(b)(1)(a) exceeds the Net Income allocated to each such Partner for the
current and all prior fiscal years of the Partnership pursuant this Section
5.1(b)(2)(c);
(d) Fourth, to the General Partner, until the General
Partner is allocated a cumulative amount (from December 19,1984) of NINE HUNDRED
SIXTY THOUSAND DOLLARS ($960,000) pursuant to this Section 5.1(b)(2)(d); and
(e) Then, to the Partners, according to their Units with
consideration for the varying Units of the Partners during such year.
5.2. Built-In Gain. In determining each Partner's distributive share
of items of income, gain, loss or deduction realized by the Partnership with
respect to all property and assets whose book value is greater than their
adjusted basis or federal income tax purposes (including any partnership or
tenancy in common interest contributed to the Partnership) shall be allocated
among the Partners as provided in Section 704(c) of the Code and the Treasury
Regulations thereunder.
5.3. Minimum Gain Chargeback. Notwithstanding the allocations
provided for in Sections 5.1 and 5.2, if there is a net decrease in Minimum Gain
during a taxable year of the Partnership (including any Minimum Gain
attributable to Partner-Funded Debt), each Partner at the end of such year shall
be allocated, before any other allocations of profits, losses, net gains from
Capital Transactions and net losses from Capital Transactions are made under
this Agreement for such year, items of income and gain for such year (and, if
necessary, subsequent years) in the amount and in the proportions described in
Section 1.704-2(f) of the Treasury Regulations.
5.4. Qualified Income Offset. Notwithstanding the allocations
provided for in Sections 5.1 and 5.2, no allocation of an item of loss or
deduction shall be made to a Partner to the extent such allocation would cause
or increase a deficit Capital Account balance in such Partner's Capital Account
as of the end of the taxable year to which such allocation relates, after taking
into account any adjustment, allocation or distribution described in Section
1.704-1(b)(2)(ii)(d)(4), (5) or (6) of the Treasury Regulations, and if any
such adjustment, allocation or distribution unexpectedly occurs, the Partners
shall be allocated (after taking into account any allocations made pursuant to
this Section 5.4) items of income and gain in an amount and manner to eliminate
any Capital Account deficit attributable to such adjustment, allocation or
distribution as quickly as possible. For purposes of this Section 5.4, there
shall be excluded from a Partner's deficit Capital Account balance at the end of
a taxable year of the Partnership (x) such Partner's
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share, determined in accordance with Section 704(b) of the Code and Section
1.704-2(g) of the Treasury Regulations, of Minimum Gain (provided that in the
case of Minimum Gain attributable to Partner-Funded Debt, such Minimum Gain
shall be allocated only to the Partner or Partners to which such debt is
attributable pursuant to Section 1.704-2(i) of the Treasury Regulations), (y)
the amount of any loans (other than Partner-Funded Debt) for which such Partner
is personally liable (whether as a result of a guarantee or otherwise), and (z)
the amount such Partner is obligated to restore to the Partnership under Section
1.704-1(b)(2)(ii) of the Treasury Regulations.
5.5. Partner-Funded Debt. Notwithstanding the allocations provided
for in Sections 5.1 and 5.2, if there is a net increase in Minimum Gain during a
taxable year of the Partnership that is attributable to Partner-Funded Debt
then, first depreciation, to the extent the increase in such Minimum Gain is
allocable to depreciable property, and then a proportionate part of other
deductions and expenditures described in Section 705(a)(2)(B) of the Code, shall
be allocated to the lending or guaranteeing Partner (and to joint lenders or
guarantors in proportion to their relative obligations), provided that the total
amount of deductions so allocated for any year shall not exceed the increase in
Minimum Gain attributable to such Partner-Funded Debt in such year.
5.6. Curative Allocations. The allocations set forth in Sections 5.3,
5.4 and 5.5 (the "Regulatory Allocations") are intended to comply with certain
requirements of Sections 1.704-l(b) of the Treasury Regulations.
Notwithstanding any provision of this Article 5 other than the Regulatory
Allocations, the Regulatory Allocations shall be taken into account in
allocating other net income, net losses, net gains and net losses from Capital
Transactions, and net gains and net losses from Capital Transactions resulting
in a dissolution of the Partnership between the Partners so that, to the extent
possible, the net amount of such other allocations and the Regulatory
Allocations to each Partner shall be equal to the net amount that would have
been allocated to such Partner if the Regulatory Allocations had not been made.
5.7. Excess Non-Recourse Liability Safe Harbor. Pursuant to Section
1.752-3(a)(3) of the Treasury Regulations, solely for purposes of determining
each Partner's proportionate share of the "excess non-recourse liabilities" of
the Partnership (as defined in Section 1.752-3(a)(3) of the Treasury
Regulations), the Partners' respective interests in Partnership profits shall be
in accordance with their interests in the Partnership.
5.8. Treatment of Interest to Partners. For purposes of this Article
5, interest paid by the Partnership to any Partner related to a loan made by the
Partner to the Partnership shall be treated as an expense of the Partnership.
5.9. Transfer During Taxable Year. Subject to section 706 of the Code,
in the event of a Transfer of a Partner's interest or any part thereof at any
time other than the close of the Partnership's fiscal year, the allowable shares
of the various items of the Partnership's income, gain, loss, deduction and
credit (and other items separately reported) as computed for federal and state
income tax purposes, shall be allocated between the transferor and the
transferee by closing the Partnership's books with respect to such Transfer as
of the close of the calendar month in which such Transfer occurs (unless a
different method of allocation is approved, in writing, by the transferor and
the transferee and the General Partner).
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5.10. Depreciation Recapture. Each Partner's allocable share of
Partnership Net Income which is characterized as ordinary income pursuant to
section 1245 or 1250 of the Code or Section 18211 or 18212 of the California
Revenue and Taxation Code, as amended (the "depreciation recapture"), with
respect to the disposition of an item of Partnership property shall be borne,
as to depreciation recapture arising from depreciation accrued prior to the
date of this Agreement, by the Limited Partners in proportion to their
respective Units prior to the date of this Agreement, and as to depreciation
recapture arising from depreciation accrued from and after the date of this
Agreement, by the Limited Partners and the General Partner in the same ratio as
such Limited Partners' or General Partner's allocable share of depreciation
from and after the date of this Agreement bears to all the Limited Partners'
and the General Partner's allocable shares of depreciation from and after the
date of this Agreement. In no event shall depreciation recapture be allocable
to holders of Preferred Units, as such.
5.11. Economic Allocations. It is the intent of the Partners that the
good faith allocations of income or loss made by the General Partner under this
Agreement reflect the economic expectations of the Partners. If any allocation
of any item of Net Income and Net Loss under this Agreement is adjusted pursuant
to an income tax audit by the Internal Revenue Service or California Franchise
Tax Board or by court determination, the Partners agree that all Distributions,
including liquidating Distributions, shall continue to be made under the method
used by the General Partner in good faith to allocate income and loss and to
make Distributions under this Agreement prior to a court's, the Internal Revenue
Service's, Franchise Tax Board's or any other state's equivalent agency's
adjustment of the allocations of any items of the Partnership's income or loss.
5.12. Distributions.
a) Generally. Except as otherwise provided in Articles 13, 15
and 16 hereof, the General Partner may distribute Cash Available for
Distribution during the fiscal year to the Partners pursuant to Section
5.12(b).
b) Interim Distributions. Distributions to be made to the
Partners prior to, and otherwise not in conjunction with, the final liquidation
of the partnership shall be distributed as follows:
(1) First, to the holders of Preferred Units, as such, in
proportion to the number of Preferred Units held thereby on the date of
distribution, until the cumulative amount previously and currently distributed
to the holders of Preferred Units, as such, under this Section 5.12(b)(1)
equals the Preferred Return for the then-current fiscal year and each prior
fiscal year;
(2) Second, to the holders of Preferred Units, as such, in
proportion to the number of Units held thereby on the date of distribution, in
an amount equal to $25,000,000, provided that no such distribution shall be made
on or before September 23, 1998;
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(3) Third, to the General Partner until the General
Partner is distributed a cumulative amount (from December 19, 1984) of NINE
HUNDRED SIXTY THOUSAND DOLLARS ($960,000); and
(4) Fourth, in accordance with the number of Units
held by each Partner on the date that the General Partner declares that a
Distribution will be made.
c) Subject to Section 5.13, if the Partnership has Net
Income for federal income tax purposes for any fiscal year, then the Partnership
shall first distribute at least an amount of cash ("Tax Distribution"), first to
holders of Preferred Units, as such, in proportion to the number of Preferred
Units held thereby on the date of distribution, and then (if amounts are still
available) to all other Partners, which, when combined with all other
distributions to such Partners in the current and all preceding fiscal years,
equals the product of the highest combined federal, state and local marginal
income tax rate applicable to any Partner and the excess, if any, of (i) the
aggregate net taxable income allocated to such Partner in the current and all
preceding fiscal years over (ii) the aggregate net taxable loss allocated to
such Partner in all preceding taxable years. Any amounts distributed to a
Partner pursuant to this Section 5.12(c) shall reduce, on a dollar for dollar
basis, until fully recovered any distribution to which a Partner is otherwise
entitled under this Agreement.
5.13. Distributions Limitation. If after allocation of Net Income
and Net Loss and all allocations of income or deduction not included in Net
Income of Net Loss, a Distribution to a Limited Partner would cause such Limited
Partner's Capital Account to be negative in excess of the Limited Partner's
obligation to restore a deficit and such Partner's share of minimum gain, no
Distribution shall be made to such Limited Partner to the extent that the
Distribution would cause such an excess Capital Account deficit to arise for
such Limited Partner. The Distribution shall be made in such succeeding fiscal
year when a Distribution to such Limited Partner will not violate the
requirements of the preceding sentence. The provisions of this Section 5.13
shall not apply to the holders of Preferred Units, as such.
5.14. Cash Distributions in respect of Preferred Units. Anything
in this Agreement to the contrary notwithstanding, without the written consent
of the holders of Preferred Units receiving the same, the Partnership shall not
distribute any property to such holders other than cash in respect of such
Units.
ARTICLE 6. RIGHTS AND DUTIES OF THE GENERAL PARTNER.
6.1. General Partner Compensation; Expenses.
a) No Compensation for Management. The General Partner
shall not be entitled to receive any compensation from the Partnership except as
expressly provided by this Agreement.
b) Administrative Fee. The Partnership shall pay to
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Inc., (or the General Partner if ▇▇▇▇▇▇ & MacFarlane, Inc.
ceases to serve), a monthly administrative fee for management of the
Partnership's business in an amount equal to four
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percent (4%) of the gross revenue earned on the Partnership's sign structures in
the preceding calendar month.
c) Commission. The Partnership shall pay the General
Partner a commission for services rendered in connection with the purchase or
contribution (in case of an acquisition involving in whole or in part of the
issuance of Units in exchange for sign structures), sale, refinancing or
exchange of any of the Partnership's sign structures in an amount equal to
either four percent (4%) of the fair market value of the sign structures
received in a purchase, exchange or contribution, four percent (4%) of the gross
sales price of such structures, or four percent (4%) of the principal balance of
any refinancing indebtedness, whichever is applicable. If there is a sale,
purchase, exchange or refinancing of any sign structures in any entity in which
the Partnership has an interest, or if there is a contribution of sign
structures to an entity in which the Partnership has an interest (other than a
contribution by the Partnership of its sign structures), the commission shall be
prorated based upon (i) the gross sales price of such structure, (ii) the
principal balance of any refinancing indebtedness, or (iii) the fair market
value of the purchased, exchanged or contributed sign structures, times the
Partnership's percentage interest in the entity as determined immediately before
the transaction.
d) Reimbursable Expenses. The Partnership shall reimburse
the General Partner for direct expenses incurred in organizing, capitalizing and
developing the Partnership, or in connection with obtaining additional capital
or facilities for the Partnership, including legal filing, printing, accounting,
acquisition and leasing expenses. In addition, the General Partner shall be
reimbursed by the Partnership for any expenses of the Partnership, including but
not limited to those specified in Section 6.2, that are advanced by the General
Partner.
e) Payment of Deferred Fee. On January 2, 1998, the
Partnership shall pay the General Partner THREE MILLION FOUR HUNDRED THOUSAND
DOLLARS ($3,400,000), which amount represents a deferred fee. The Partnership
shall treat such amount as a "guaranteed payment" within the meaning of Section
707(c) of the Code.
6.2. Partnership Expenses. The Partnership shall pay all of its
expenses, which may include, but are not limited to:
a) All costs of borrowed money, taxes and assessments on
the Partnership assets and other taxes applicable to the Partnership assets;
b) Legal, accounting, consulting and brokerage fees;
c) Expenses and taxes incurred in the distribution,
Transfer and recording of documents evidencing ownership of an interest in the
Partnership or in the Partnership assets; and
d) The cost of any audit of the Partnership's financial
statements performed by an independent certified public accounting firm.
6.3. Time Devoted to the Partnership. The General Partner is not
obligated to devote full time to the affairs of the Partnership. The General
Partner may become involved in other businesses, occupations and partnerships.
The General Partner shall devote such time to the
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Partnership as may be reasonably necessary to manage the Partnership business
and perform the duties of a General Partner.
6.4. Partnership Governance. The Limited Partners acknowledge
that the General Partner shall have full authority over the governance and
management of the Partnership, except as otherwise provided by this Agreement.
Notwithstanding anything in this Agreement to the contrary but subject to
Section 17.4, the General Partner shall have the right to amend this Agreement
without the consent of any of the Limited Partners: (a) to reflect the addition
or substitution of Limited Partners or the reduction of the Capital Accounts
upon the return of capital to the Partners; and (b) to delete or add any
provision from or to this Agreement required to be so deleted or added by a
state regulatory agency, the deletion or addition of which provision is deemed
by such regulatory agency to be for the benefit or protection of the Limited
Partners. The General Partner shall also have full charge of the day-to-day
management, conduct and operation of the Partnership's operations.
Notwithstanding anything in this Agreement to the contrary other than Section
15.1, the General Partner shall have the right, responsibility and authority, on
behalf of the Partnership and without the consent of the Limited Partners, to:
a) Lease, hire or contract with personnel needed to
advance the purposes of the Partnership;
b) Employ, from time to time, at the expense of the
Partnership, such accountants, attorneys or other professionals as it may
determine to be necessary or appropriate;
c) Do all acts required of the Partnership under the
terms of any agreement of which the Partnership is a party;
d) Borrow money on the Partnership's behalf, encumber
Partnership assets and prepay, increase, modify, refinance or extend
Partnership indebtedness;
e) Execute, acknowledge and deliver any and all
instruments to carry out the General Partner's duties;
f) Pay all syndication, organization and reorganization
expenses incurred by the Partnership;
g) Pay all expenses incurred in the operation of the
Partnership;
h) Maintain all necessary Partnership books and records;
i) Assume the overall duties imposed upon a General
Partner by the Act;
j) Invest in joint ventures, partnerships, corporations,
limited liability companies or other entities that purchase, construct, manage,
operate and hold for investment or for sale outdoor advertising structures;
k) Acquire by any legal means other outdoor advertising
businesses, including, subject to Section 15.1, any business in which the
General Partner or owners of the
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General Partner or any Affiliate thereof has any interest, on such terms as the
General Partner determines in good faith is acceptable to the Partnership. To
the extent California Corporations Code Sections 15678.1 through 15679-14
applies to the acquisition, the General Partner shall obtain the Limited
Partners' approval as provided in Section 8.1(d);
l) Subject to Section 15.1 to redeem Limited Partner
interests; and
m) Except as otherwise provided in this Agreement, to
admit additional or substituted Limited Partners.
6.5. Competing Interests. Each Partner may engage in or possess
an interest in other business ventures of every nature and description
independently or with others, regardless of whether such a venture competes with
the Partnership. Neither the Partnership nor any Partner shall have any right in
or to such other ventures or to the income or the profits derived therefrom.
6.6. Restriction on Powers of the General Partner. The General
Partner may not, without the written consent or ratification of all other
Partners, do any act in contravention of this Agreement or which would make it
impossible to carry out the ordinary business of the Partnership, confess a
judgment against the Partnership or possess, pledge or hypothecate any
Partnership asset for other than a Partnership purpose.
6.7. Limitation on General Partner Liability. Neither a General
Partner nor any of that General Partner's directors, officers or agents shall be
liable to the Partnership or the Limited Partners for any act or omission based
upon errors of judgment or other fault in connection with the business or
affairs of the Partnership, so long as: (a) the Person against whom liability is
asserted acted in good faith and in a manner reasonably believed by such Person
to be within the scope of the Person's authority under this Agreement and in the
best interests of the Partnership; and (b) such action or failure to act does
not constitute willful misconduct. The General Partner shall not be personally
liable for the return of Capital Contributions made by any Partner. The General
Partner is specifically permitted to satisfy any Partnership obligations as to
which the General Partner is personally liable before satisfying Partnership
obligations as to which the General Partner has no such personal liability.
6.8. Indemnification of General Partner. The Partnership agrees
to indemnify the General Partner and its directors, officers and agents to the
fullest extent permitted by law and to defend, save and hold them harmless from
and in respect of all fees, costs, losses, damages and expenses (including
attorneys' fees) incurred in connection with or resulting from any claim, action
or demand arising out of or in any way relating to the Partnership or its
assets, including amounts paid in settlement or compromise (if recommended by
the Partnership's counsel) of any such claim, action or demand and all fees,
costs and expenses (including attorneys' fees) in connection therewith. This
indemnification shall apply only if the Person against whom a claim, action or
demand is asserted has acted in good faith on behalf of the Partnership and in a
manner reasonably believed by such Person to be within the scope of its
authority under this Agreement and in the best interests of the Partnership, and
such action or failure to act does not constitute willful misconduct. The
termination of any action, suit or proceeding by judgment, order,
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settlement or upon a plea of nolo contendere or its equivalent, shall not of
itself create a presumption that any Person's misconduct was willful.
6.9. Certain Transactions; General Partner Agreements. The
Limited Partners hereby acknowledge that the General Partner expects to enter
into the following agreements on behalf of the Partnership, and the Limited
Partners hereby authorize the Partnership to execute, deliver and perform these
agreements in the form negotiated and agreed to by the General Partner:
a) Agreement for Purchase and Sale of Assets, dated as of
December 15, 1997, between the Partnership and ▇▇▇▇▇▇▇ Co. (doing business as
▇▇▇▇▇▇▇ Outdoor Advertising); and
b) Agreement for Purchase and Sale of Assets, dated as of
November 17, 1997, by and among the Partnership, Vegas Outdoor Advertising, Inc.
and RS Enterprises, Inc.
6.10. Warrants. The Limited Partners hereby approve the issuance
by the Partnership of the Warrants and the issuance of Units pursuant thereto as
set forth in this Section 6.10. Initial Warrants shall be issuable upon the
270th day following the Time of Purchase (provided that any Preferred Units
shall then be outstanding) for such number of Units as shall equal 1.0% of the
sum of (i) the aggregate Units outstanding on the date of issuance of the
Initial Warrants (ii) the aggregate number of Units outstanding on December 23,
1997 that were acquired by the Partnership or its Subsidiaries on or before the
date of issuance of such Warrant and (iii) all Units issuable upon the exercise
of all options, warrants (not including Quarterly Warrants thereafter issuable
pursuant to the Purchase Agreement), rights or other securities convertible into
or exchangeable for Units outstanding on the date of issuance of the Initial
Warrants. Quarterly Warrants shall be issuable upon the last day of each
three-month period following the date which is 270 days after the Time of
Purchase (each such last day, a "Quarterly Warrant Issuance Date") (provided
that any Preferred Units shall remain outstanding on such Quarterly Warrant
Issuance Date) for such number of Units as shall equal 0.25% of the sum of (i)
the aggregate Units outstanding on the date of issuance of the Quarterly
Warrants (ii) aggregate number of Units outstanding on December 23, 1997 that
were acquired by the Partnership or its Subsidiaries on or before the date of
issuance of such Quarterly Warrant and (iii) all Units issuable upon the
exercise of all options, warrants (including pursuant to the Warrants then
outstanding, but not including Quarterly Warrants thereafter issuable pursuant
to the Purchase Agreement), rights or other securities convertible into or
exchangeable for Units outstanding on the date of issuance of the Quarterly
Warrants (after giving effect to all anti-dilution adjustments set forth in the
Warrant Agreement reflecting the issuance of such Quarterly Warrants). The
issuance of Units upon exercise of the Warrants, and the admission as Limited
Partners of the Persons to whom such Units are issued, shall not require any
approval of any of the Partners.
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ARTICLE 7. RIGHTS AND DUTIES OF LIMITED PARTNERS.
7.1. Basic Rights. The rights and duties of the Partners in relation to the
Partnership shall be determined by the following rules:
a) Limited Liability. No Limited Partner shall be required to make any
additional Capital Contribution to the Partnership other than as provided in
Section 13.4(c), or return any Distribution other than as provided in Section
13.4(d).
b) Compromise. The obligation of a Partner to make a Capital
Contribution or return money or property paid or distributed in violation of
this Agreement may be compromised only by the written consent of all the
Partners, except as provided in Section 15666 of the Act.
c) Distributions. Except as provided in Section 12 and Section 13 of
the Warrant Agreement, no Limited Partner shall have the right to receive
property other than cash upon Dissolution or any sale of Partnership assets;
however, the General Partner may distribute Partnership assets in kind as
provided in Section 13.4(e).
7.2. Prohibition Against Involvement In Management. A Person acting in the
capacity of a Limited Partner shall not participate in the control or management
of the Partnership.
7.3. Acts Not Constituting Management. A Limited Partner does not
participate in the control or management of the Partnership solely by: (a)
exercising a right of inspection; (b) exercising a right to information; (c)
exercising voting or consent rights provided in this Agreement; or (d) acting
as a director, officer, member or shareholder of a General Partner. This
provision shall be read to supplement, and not limit, Section 15632 of the Act.
ARTICLE 8. VOTING, MEETINGS AND PROXIES.
8.1. Actions Requiring Approval by the Limited Partners. Except as
otherwise specifically provided in this Agreement, the Limited Partners do not
have the right to vote on any Partnership matter. The actions specified in this
Section 8.1 may be taken only upon the affirmative vote or written consent of
the General Partner, a Majority of the Limited Partners and a Majority of the
Preferred Units.
a) A change in the Partnership's business or purposes.
b) The admission of a General Partner, other than under the
circumstances described in Section 8.2 or 13.2.
c) The amendment of the Partnership Agreement, except as otherwise
provided in Section 6.4 or Section 17.4 hereof or Section 10 of the Warrant
Agreement.
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d) Limited Partner approval rights in Section 15678.2 Section 15679.2
relating to mergers and reorganizations to the extent that the Act precludes
a partnership agreement from modifying or eliminating such approval rights.
8.2. Actions Requiring Unanimous Consent of the Limited Partners. The
Limited Partners are hereby given the right, by a unanimous vote or
unanimous written consent, to: (a) admit a new General Partner after the
General Partner ceases to be a General Partner where there is no remaining
or surviving General Partner; and (b) elect to continue the business of the
Partnership pursuant to Section 13.2 where there is no remaining or surviving
General Partner.
8.3. Meetings - Place. Meetings of Partners shall be held at the principal
office of the Partnership or such other site in San ▇▇▇▇ Obispo County as
designated by the General Partner.
8.4. Meetings - Calling. Meetings of the Partners may be called by the
General Partner or by Limited Partners holding greater than ten percent (10%)
of the Units, only Limited Partners holding greater than ten percent (10%) of
the Preferred Units, in each case held by all such Limited Partners for any
matters for which such Limited Partners may vote.
8.5. Meetings - Notice.
a) Time and Contents. A written notice of the meeting shall be given
by a General Partner not less then ten (10) nor more than sixty (60) days
before the date of the meeting to each Partner. The notice shall state the
place, date and hour of the meeting and the general nature of the business to
be transacted, and no other business may be transacted.
b) Manner of Giving Notice. Notice of a Partners' meeting or any
report shall be given either personally or by mail or other means of written
communication, addressed to the Partner at the address of the Partner appearing
on the books of the Partnership for the purpose of notice. The notice or report
shall be deemed to have been given at the time when delivered personally or
deposited in the mail or sent by other means of written communication. A
declaration of mailing of any notice or report in accordance with this Article
8, executed by a General Partner and maintained with the records of the
Partnership, shall be prima facie evidence of the giving of the notice or
report.
c) Constructive Notice. If any notice or report addressed to a Partner
at the address of the Partner appearing on the books of the Partnership is
returned to the Partnership by the United States Postal Service marked to
indicate that the United States Postal Service is unable to deliver the notice
or report to the Partner at the address, all future notices or reports shall be
deemed to have been duly given without further mailing if they are made
available for the Partner at the principal office of the Partnership for a
period of one (1) year from the date of the giving of the notice or report to
all other Partners.
d) Written Waiver, Consent and Approval. The transactions of any
meeting of Partners, however called and noticed, and wherever held, are as
valid as though had at a meeting duly held after regular call and notice,
either before or after the meeting, if each of the
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Persons entitled to vote, not present in person or by proxy, signs a written
waiver of notice or a consent to the holding of the meeting or an approval of
the minutes thereof. All waivers, consents and approvals shall be filed with
the Partnership records or made a part of the minutes of the meeting.
Attendance of a Partner at a meeting shall constitute a waiver of notice of the
meeting, except when the Partner objects at the beginning of the meeting.
Neither the business to be transacted nor the purpose of any meeting of the
Partners need be specified in any written waiver of notice.
8.6. Meetings - Quorum. A Majority of the Limited Partners represented in
person or by proxy, shall constitute a quorum at a meeting of Partners.
8.7. Written Consent Without Meeting. Any action which may be taken at a
meeting of the Partners may be taken without a meeting if a consent in writing,
setting forth the action so taken, is approved by Partners having not less than
the minimum number of votes that would be necessary to authorize or take such
action at a meeting at which all entitled to vote thereon were present and
voted. If the Limited Partners are requested to consent on a matter without a
meeting, each Partner shall be given notice of the motion to be voted upon in
the same manner as described above with respect to an actual meeting. If the
General Partner, or Limited Partners representing the requisite percentage of
Units or Preferred Units specified in Section 8.4, request a meeting to discuss
or vote on the matter, the notice of a meeting shall be given in accordance with
Section 8.5(b), and no action shall be taken until the meeting is held. Any
action taken without a meeting shall be effective fifteen (15) days after the
required minimum number of Partners have signed the consent; however, the action
will be effective immediately if the General Partner and Limited Partners
representing at least ninety percent (90%) of the Units held by Limited Partners
have signed the consent.
8.8. Proxies. The use of proxies in connection with this Article 8 will be
governed in the same manner as corporations formed under the General Corporation
Law of California.
ARTICLE 9. DISPOSITION OF LIMITED PARTNER INTERESTS.
9.1. Withdrawal of Limited Partner. A Limited Partner may not withdraw
from the Partnership, except as otherwise specifically provided in this
Agreement.
9.2. Transfers Restricted. Except for the Transfer of Preferred Units and
Units constituting Warrant Units (and the interests in the Partnership relating
thereto) as to which the following provisions of Section 9.2 and the provisions
of Section 9.3, Section 9.4 and Section 9.5 shall not apply, no Limited Partner
shall Transfer all or part of the Limited Partner's interest in the Partnership
without the written consent of the General Partner, which consent may be
withheld at the sole discretion of the General Partner, except as provided in
this Agreement. Any Transfer not permitted by this Agreement shall be null and
void.
9.3. Transfers to Trust. Notwithstanding any other provision in this
Agreement, an individual Limited Partner shall have the right to Transfer the
Limited Partner's interest in the Partnership to a trust for the benefit of the
Limited Partner or for the benefit of any family member (spouse, siblings,
ancestors or lineal descendants), provided that the Limited Partner and/or the
Limited Partner's spouse is/are the sole trustee(s) of the trust or, if not the
sole trustee(s) of the trust, is/are the only trustee(s) allowed to vote on
Partnership decisions. The addition of a different trustee allowed to vote on
Partnership decisions shall constitute a Transfer that is not permitted by this
Article 9. When the General Partner receives notice that the trust has one or
more trustees empowered to vote on Partnership decisions other than the original
Limited Partner or spouse or when the General Partner receives notice that the
original Limited Partner is no longer a trustee empowered to vote (by reason of
death or otherwise), the interest of the trust shall be deemed offered to a
Third-party Purchaser, thereby triggering the application of the option to
purchase pursuant to Section 10.5.
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9.4. Transfer to a Legal Entity.
a) A Limited Partner who is an individual may Transfer the Limited
Partner's interest in the Partnership to a legal entity if the Limited Partner
owns a majority of the beneficial interest of the legal entity. However, a
subsequent Transfer of a beneficial interest in the legal entity shall not be
permitted under this Article 9 if, immediately after giving effect to the
purported Transfer, the Person who was the Limited Partner on the effective
date of this Agreement or a purchaser in a subsequent offering ceases to own a
majority of the beneficial interest in the legal entity. In such circumstance,
when the General Partner receives notice that the Person who was the Limited
Partner on the effective date of this Agreement or a purchaser in a subsequent
offering has ceased to own a majority of the beneficial interest in the legal
entity, the interest of the affected Limited Partner shall be deemed offered to
a Third-party Purchaser, thereby triggering the application of the option to
purchase pursuant to Section 10.5.
b) A Limited Partner that is a legal entity may Transfer its interest
to another legal entity if the same Persons (or their Affiliates) have the
beneficial ownership of a majority interest in the other legal entity. However,
a subsequent Transfer of a beneficial interest in the entity shall not be
permitted under this Article 9 if, immediately after giving effect to the
purported Transfer, those Persons who own a beneficial interest in the original
entity cease to own a majority of the beneficial interest in the new entity. In
such circumstance, when the General Partner receives notice that the Persons who
owned a beneficial interest in the original entity have ceased to own a majority
of the beneficial interest in the new entity, the interest of the affected
Limited Partner shall be deemed offered to a Third-party Purchaser, thereby
triggering the application of the option to purchase pursuant to Section 10.5.
9.5. Transfer to Beneficial Owners. A Limited Partner may Transfer its
interest to the beneficial owners of the Limited Partner upon Dissolution of the
Limited Partner as determined by applicable state law if the beneficial owner
was a Limited Partner on the effective date of this Agreement or a purchaser in
a subsequent offering. The Transfer to a beneficial owner who was not a Limited
Partner as of the effective date of this Agreement or purchaser in a subsequent
offering, shall be deemed offered to a Third-party Purchaser, thereby triggering
the application of the option to purchase pursuant to Section 10.5.
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9.6. Substituted Limited Partner. An Assignee of a Limited Partner's
interest shall become a Limited Partner only upon the satisfaction of all of
the following conditions:
a) Transfer Instrument. Filing with the Partnership a duly executed
and acknowledged written instrument of assignment in a form approved by the
General Partner specifying the interest being assigned and setting forth the
intention of the assignor that the Assignee succeed to the assignor's interest
as a Limited Partner.
b) Written Opinion. If requested by the General Partner, providing,
the Partnership with a written opinion of counsel acceptable to the General
Partner that the proposed Transfer will not:
(1) Violate, or cause the Partnership to be in violation of,
any federal or state securities laws;
(2) Jeopardize the exempt status of the sale of Partnership
interests by the Partnership under the federal or state securities laws;
(3) Cause a termination of the Partnership under Code section
708; or
(4) Jeopardize the characterization of the Partnership as a
partnership under any federal or state tax law, regulation or ruling.
c) Partnership Agreement. Execution and acknowledgment by the assignor
and Assignee of any instruments required by the General Partner, including the
execution of this Agreement and any supplement to it, in which the transferee
agrees to be bound by the terms and conditions of this Agreement as are
applicable to the Units or interests being Transferred, as supplemented, and
the execution, acknowledgment and delivery to the General Partner of a special
power of attorney in the form described in Article 14.
d) Consent of General Partner. The General Partner's written consent
may be withheld in its sole discretion; provided that the General Partner's
consent shall not be required to admit any Assignee of Preferred Units or Units
constituting Warrant Units (and the interests in the Partnership relating
thereto), such admission to occur upon satisfaction of all requirements of this
Section 9.6 other than this Section 9.6(d).
9.7. Effect of Assignment and Substitution. No assignment by any Limited
Partner of all or any part of an interest in the Partnership, whether or not in
compliance with the terms of this Agreement, shall cause or constitute a
Dissolution of this Partnership. If a substitution of a Limited Partner is
permitted as provided in Section 9.6, the General Partner shall prepare,
publish, file and/or record such documents or instruments as may be required.
The consent or execution of such instruments by any of the other Limited
Partners shall not be required to effect such substitution.
9.8. Assignee's Capital. An Assignee of Preferred Units, Units and/or
partnership interests shall have the same number of Preferred Units, Units
and/or partnership interests, Capital Account, share of Partnership Net Income
and Net Loss or items
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of income or deduction and credit for Capital Contributions in the same amounts
and percentages as adjusted for any revaluations required by this Agreement or
any state or federal law which are attributed to the assigned Preferred Units,
Units and/or partnership interests when held by the assignor.
ARTICLE 10. PURCHASE OPTIONS.
10.1. Option to Purchase Interest in Event of Death of a Limited Partner.
Upon the death of a Limited Partner (other than a holder of Preferred Units or
Warrant Units, as such), the personal representative of the deceased Limited
Partner shall give notice of the death to the General Partner. The notice shall
include the personal representative's name and address for correspondence.
a) General Partner Option. For thirty (30) days after the General
Partner receives notice of the death of a Limited Partner, the General Partner
shall have an option to purchase or designate (subject to the agreement of such
Limited Partner to do so) one or more other Limited Partners to purchase all or
a part of the interest owned by the deceased Limited Partner (other than
interests relating to Preferred Units or Warrant Units) at the price and on the
terms provided in Article 11.
b) Partnership Option. If the General Partner does not exercise its
option to purchase all of the interest under Section 10.1(a), for thirty (30)
days after the expiration of the General Partner's option or notice of the
intention not to exercise the option as to all or part of the interest whichever
occurs earlier, the Partnership shall have an option to redeem all or any part
of the remaining interest subject to this option at the price and on the terms
provided in Article 11.
c) Exercise of Option. Notice of the exercise of the option provided
by Sections 10.1(a) and 10.1(b), or intent not to exercise the option, shall
be given to the personal representative of the deceased Limited Partner during
the term of the option period.
d) Failure to Exercise Option. There is no requirement that the
General Partner or its designees or the Partnership must collectively purchase
all of the interest held by the deceased Limited Partner, if the General Partner
or the Partnership does not exercise the option provided by Section 10.1 as to
any part of the interest, then the interest not transferred shall be transferred
to the successor-in-interest of the deceased Limited Partner. The transferee
shall be an Assignee and shall only become a Limited Partner upon satisfaction
of the conditions provided in Section 9.6.
10.2. Option to Purchase Interest in the Event of Divorce of a Limited
Partner. In the event that the interest of a Limited Partner is transferred to
the spouse of such Limited Partner in a legal separation agreement or upon
Dissolution of marriage (the "Former Spouse"), the Limited Partner whose
marriage is being dissolved (the "Divorcing Limited Partner") shall give notice
to the General Partner. The notice shall be given within thirty (30) days of the
date the Transfer to the Former Spouse becomes effective.
a) Divorcing Limited Partner Option. For fifteen (15) days after the
Divorcing Limited Partner gives notice of the Transfer to the Former Spouse, the
Divorcing Limited Partner shall have the option to purchase all or part of the
interest owned by the Former Spouse upon the legal separation or dissolution of
marriage at the price and on the terms provided in Article 11.
b) General Partner Option. If the Divorcing Limited Partner does not
exercise the option to purchase all of the interest under Section 10.2(a), for
fifteen (15) days after the expiration of the Divorcing Limited Partner's option
or notice of the intent not to exercise the option as to all or part of the
interest, whichever occurs earlier, the General Partner shall have an option to
purchase or designate (subject to the agreement of such Limited Partner to do
so) one or more of the other Limited Partners to purchase all or part of the
remaining interest owned by the Former Spouse (other than interests relating to
Preferred units or Warrant Units) at the price and on the terms provided in
Article 11.
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c) Partnership Option. If the General Partner does not exercise its
option to purchase all of the remaining interest under Section 10.2(b), for
thirty (30) days after the expiration of the General Partner's option or notice
of its intention not to exercise the option as to all or part of the interest,
whichever occurs earlier, the Partnership shall have an option to redeem all or
any part of the remaining interest subject to this option at the price and on
the terms provided in Article 11.
d) Exercise of Option. Notice of the exercise of the option provided
by Sections 10.2(a), 10.2(b) and 10.2(c), or intent not to exercise the option
shall be given to the General Partner and the Former Spouse during the term of
the option period.
e) Failure to Exercise Option. There is no required that the
Divorcing Limited Partner, the General Partner or its designees, or the
Partnership must collectively purchase all of the interest held by the Former
Spouse. If the Divorcing Limited Partner, the General Partner or its designees,
or the Partnership does not exercise the option provided by Section 10.2 as to
any part of the interest, then the Former Spouse shall be an Assignee and shall
only become a Limited Partner upon satisfaction of the conditions provided in
Section 9.6.
10.3. Option to Purchase Interest in the Event of Bankruptcy of a Limited
Partner. In the event of the Bankruptcy of a Limited Partner (other than a
holder of Preferred Units or Warrant Units, as such), such Limited Partner (the
"Bankrupt Limited Partner") shall give notice of such Bankruptcy to the General
Partner. The notice shall be given within ten (10) days of the Bankruptcy.
a) General Partner Option. For thirty (30) days after the General
Partner receives notice of such Bankruptcy, the General Partner shall have an
option to purchase or designate (subject to the agreement of such Limited
Partner to do so) one or more other Limited Partners to purchase all or part of
the interest owned by the Bankrupt Limited Partner at the price and on the terms
provided in Article 11.
b) Partnership Option. If the General Partner does not exercise its
option to purchase all of the interest under Section 10.3(a), for thirty (30)
days after the expiration of the General Partner's option or notice of the
intention not to exercise the option as to all or part of the interest,
whichever occurs earlier, the Partnership shall have an option to redeem all or
any part of the remaining interest subject to this option at the price and on
the terms provided in Article 11.
c) Exercise of Option. Notice of the exercise of the option provided
by Sections 10.3(a) and 10.3(b), or intent not to exercise the option, shall be
given to the Bankrupt Limited Partner during the term of the option period.
d) Failure to Exercise Option. There is no requirement that the
General Partner or its designees or the Partnership must collectively purchase
all of the interest held by the Bankrupt Limited Partner. If the General Partner
or the Partnership does not exercise the option provided by Section 10.3 as to
any part of the interest, then the Bankrupt Limited Partner shall retain the
interest not transferred subject to the rights of a trustee in Bankruptcy.
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10.4. Option to Purchase Interest in Event of Incompetency of a Limited
Partner. Upon the entry by a court of competent jurisdiction appointing a
guardian or conservator for the Limited Partner (other than a holder of
Preferred Units or Warrant Units, as such) or the estate of the Limited Partner
(other than a Holder of Preferred Units or Warrant Units, as such)
("Incompetency"), the guardian or the conservator shall give notice of the
Incompetency to the General Partner and the other Limited Partners. The notice
shall include, the name of the guardian or conservator and the address for
correspondence.
a) General Partner Option. For thirty (30) days after the General
Partner receives notice of the Incompetency of a Limited Partner, the General
Partner shall have an option to purchase or designate (subject to the agreement
of such Limited Partner to do so) one or more other Limited Partners to purchase
all or part of the interest owned by the Incompetent Limited Partner (other than
interests relating to Preferred Units or Warrant Units) at the price and on the
terms provided in Article 11.
b) Partnership Option. If the General Partner does not exercise its
option to purchase all of the interest under Section 10.4(a), for thirty (30)
days after the expiration of the General Partner's option or notice of the
intention not to exercise the option as to all or part of the interest,
whichever occurs earlier, the Partnership shall have an option to redeem all or
any part of the remaining interest subject to this option at the price and on
the terms provided in Article 11.
c) Exercise of Option. Notice of the exercise of the option provided
by Sections 10.4(a) and 10.4(b), or intent not to exercise the option, shall be
given to the guardian or conservator of the Incompetent Limited Partner during
the term of the option period.
d) Failure to Exercise Option. There is no requirement that the
General Partner or its designees or the Partnership must collectively purchase
all of the interest held by the Incompetent Limited Partner. If the General
Partner does not exercise the option provided by Section 10.3 as to any part of
the interest, then the Incompetent Limited Partner shall retain the interest not
transferred subject to the rights of the guardian or conservator.
10.5. Option to Purchase Interest in the Event of Notice of Proposed Sale
to a Third-party Purchaser. A Limited Partner (other than a holder of Preferred
Units or Warrant Units, as such) shall not Transfer an interest in the
Partnership to any Person who is not the Partnership, the General Partner or a
Limited Partner ("Third-party Purchaser") without complying with the provisions
of this Section 10.5. Any Transfer or encumbrance in violation of this Section
10.05 shall be null and void. If a Limited Partner (other than the holder of
Preferred Units or Warrant Units, as such) desires to sell an interest to a
Third-party Purchaser, the Limited Partner ("Selling Limited Partner") shall
first give notice stating, that desire to the General Partner and to the other
Limited Partners; ("Notice of Proposed Sale"). The Notice of Proposed Sale shall
state the identity of the Third-party Purchaser, the Units to be sold and the
price and terms for which the Limited Partner intends to sell such Units. The
following options shall then apply:
a) General Partner Option. For fifteen (15) days after the General
Partner receives the Notice of Proposed Sale, the General Partner shall have an
option to purchase all or
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part of the interest (other than interests relating to Preferred Units or
Warrant Units) at either: (1) the price and on the terms provided in Article 11;
or (2) the price and terms contained in the Notice of Proposed Sale.
b) Partnership Option. If The General Partner does not exercise its
option to purchase all of the interest under Section 10.5, for thirty (30) days
after the expiration of the General Partner's option or notice of the intention
not to exercise the option as to all or part of the interest, whichever occurs
earlier, the Partnership shall have an option to redeem all or any part of the
remaining interest subject to this option at either: (1) the price and on the
terms provided in Article 11; or (2) the price and terms contained in the Notice
of Proposed Sale.
c) Other Limited Partners Option. If the Partnership does not
exercise its option to purchase all of the interest under Section 10.5(b), for
fifteen (15) days after expiration of the Partnership's option or notice of the
intention not to exercise the option as to all or part of the interest,
whichever occurs earlier, the other Limited Partners shall have an option to
purchase all of the remaining interest Subject to the option at either: (1) the
price and on the terms provided in Article 11; or (2) the price and terms
contained in the Notice of Proposed Sale. Those Limited Partners electing to
purchase the remaining interest shall do so in proportion to their share
ownership, or as they shall otherwise agree.
d) Exercise of 0ption. Notice of the exercise or the option provided
by Section 10.5(a) or the intent not to exercise the option shall be given to
the Partnership, the Selling Limited Partner and the other Limited Partners
during the term of the option period. Notice of the exercise of the option
provided by Section 10.5(b), or intent not to exercise the option, shall be
given to the Selling Limited Partner and the other Limited Partners during the
term of the option period. Notice of the exercise of the option provided by
Section 10.5(c) shall be given to the selling Limited Partner during the term of
the option period.
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e) Requirement to Collectively Purchase Entire Interest. If the
General Partner, the Partnership or the other Limited Partners exercise the
options provided by Section 10.5, they must collectively purchase all of the
interest offered by the Selling Limited Partner on the same price and terms
unless otherwise agreed to. All options arising under Section 10.5 shall be
deemed waived if any of the offered interests are not acquired through the
exercise of such an option.
f) Failure to Exercise Option. If the General Partner, the
Partnership or the remaining Limited Partners do not exercise the options
provided by Section 10.5 as to all of the interest offered, then the Selling
Limited Partner may Transfer the interest described in the Notice of Proposed
Sale to the Third-party Purchaser at the price and upon the terms specified
therein at any time within ninety (90) days from the date of the Notice of
Proposed Sale. If no Transfer occurs, the Selling Limited Partner shall remain
a member of the Partnership. If a Transfer does occur, the Third-party
Purchaser shall become an Assignee and shall only become a Limited Partner upon
satisfaction of the conditions set forth in Section 9.6.
10.6. Limitation. The provisions of this Article 10 are subject in all
respects to the provisions of Section 15.1.
ARTICLE 11. PURCHASE PRICE AND TERMS.
11.1. Purchase Price. The purchase price for the Limited Partner interest
sold pursuant to the options contained in Article 10 shall be equal to trailing
net cash flow multiplied by 6.5, with the product reduced by long-term debt and
the difference between current assets and current liabilities determined as
of the last day of the month preceding the month in which the option is
exercised. The "trailing net cash flow" means Net Income for the twelve (12)
months ending on the last day of the month preceding the month in which the
option is exercised, increased by depreciation and interest expense during the
period. For example, if as of January 1, 1998, a Limited Partner with Units
representing one percent of the outstanding partnership interests sold such
Units, the value of such Units is calculated based on amounts determined as of
December 31, 1996 as follows:
Net Income $ 2,860,059.00
Depreciation Increase 3,399,377.00
Interest Expense Increase 5,030,100.00
---------------
TRAILING NET CASH FLOW $ 11,289,536.00
Multiplied by 6.5 73,381,984.00
Less Long-Term Debt (47,897,028.00)
Plus current assets, less current liability 2,926,680.00
---------------
NET VALUE $ 28,411,636.00
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Because the Limited Partner's Units represent one percent (1%) of the
outstanding partnership interests, the value of the Limited Partner's Units
would be $284,116.36.
11.2. Effective Date. The effective date of any purchase of a limited
Partnership interest under Article 10 shall be forty-five (45) days after the
notice of the death of the Limited Partner, the notice of the interest being
transferred to the Former Spouse upon dissolution of marriage, the notice of the
Bankruptcy of the Limited Partner, the notice of the Incompetency of the Limited
Partner or the Notice of Proposed Sale to a Third-party Purchaser, respectively.
ARTICLE 12. TERMINATION AND ADMISSION OF A GENERAL PARTNER.
12.1. Termination of a General Partner. A Partner ceases to be a General
Partner and becomes a Limited Partner holding the same Capital Account, share of
Partnership Net Income and Net Loss and credit for Capital Contributions in the
same amounts and percentages as adjusted for any revaluations required by this
Agreement or any state or federal law upon the happening of any of the following
events:
a) Withdrawal. Withdrawal as a General Partner;
b) Dissolution. The Dissolution of a General Partner under state law;
c) Death or Incompetency. The death or Incompetency of a General
Partner, if an individual; or
d) Bankruptcy or Financial Difficulty. The Bankruptcy of a General
Partner or the issuance of a charging order against the General Partner's
interest which is not removed within thirty (30) days of its issuance.
12.2. No Removal of General Partner. The General Partner may not be removed
by a vote of the Limited Partners.
12.3. Transfer by General Partner. A General Partner may not Transfer all
or any part of its interest as a General Partner except as specifically
provided in this Agreement. If a General Partner Transfers or assigns any part
of its interest as a General Partner in contravention of this Agreement, that
Person shall be an Assignee and shall become a substituted Limited Partner upon
the satisfaction of the conditions set forth in Section 9.6.
12.4. Permissible Transfers by MW Sign Corp. MW Sign Corp. may Transfer its
entire interest as a General Partner to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇, Inc., or to any of
its other Affiliates or ▇▇▇▇▇▇ & MacFarlane's Affiliates, who shall thereupon be
admitted to the Partnership as a General Partner having the same Units, Capital
Account, share of Partnership Net Income and Net Loss and credit for capital
contributions in the same amounts and percentages as MW Sign Corp. had
immediately before the Transfer. Thereafter, all references to MW Sign Corp. in
this Agreement shall be read as referring to the Affiliate to which the General
Partner interest was Transferred.
12.5. Withdrawal of General Partner. Unless otherwise specifically
provided by this Agreement, a General Partner may not withdraw from the
Partnership before the expiration of the term of the Partnership as provided in
Section 2.5.
12.6. Additional General Partner. No General Partner shall be admitted to
the Partnership except as specifically provided in this Agreement. Any
additional General Partner shall be admitted only upon the vote of all the
existing General Partners, a Majority of the Limited Partners and holders of at
least 85% or the Preferred Units then outstanding. As long as MW Sign Corp. is a
General Partner, no other Person shall have the rights, powers and
responsibilities ascribed to a General Partner under this Agreement. Any other
General Partner shall have all of the rights and responsibilities of Limited
Partners. If there is more than one General Partner and MW Sign Corp. is not a
General Partner, the General Partner's rights, powers and responsibilities shall
be exercised or borne equally by all General Partners.
12.7. Termination of General Partner. If the General Partner is terminated
as General Partner and there is no remaining or surviving General Partner, the
Partnership shall be Dissolved. The Limited Partners may reconstitute the
business of the Partnership as provided in Section 13.2.
ARTICLE 13. DISSOLUTION AND TERMINATION OF PARTNERSHIP.
13.1. Dissolution and Termination. Upon the occurrence of any of the
following events, the Partnership shall be Dissolved, unless the option provided
in Section 13.2 is exercised:
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a) Expiration of Term. Upon the expiration of the term of this
Partnership pursuant to Section 2.5.
b) Election. By the election of the General Partner, provided that
the General Partner shall not make such election without the prior written
consent of holders of at least 85% of the Preferred Units then outstanding.
c) No General Partner. When a General Partner ceases to be the
General Partner and there is no remaining General Partner.
13.2. Reconstitution. If the General Partner ceases to be a General
Partner where there is no remaining or surviving General Partner, the Partners
may reconstitute and continue the business of the Partnership in a new limited
partnership on the same terms as those contained in this Agreement. Such an
election shall require the vote of a majority-in-interest of the capital and
profits of the Partners, and shall be effective only if the election is made
within ninety (90) days of the date the last General Partner ceases to be a
General Partner. Once such an election has been made, a new General Partner may
be admitted into the new partnership. All Partners of the Partnership including
the former General Partner, may vote on whether to continue the business or
admit a new General Partner. Expenses incurred in the reformation, or attempted
reformation, of the Partnership shall be deemed expenses of the Partnership.
13.3. Events Not Dissolving the Partnership. A technical tax termination
under any applicable provisions of federal or state income tax laws shall not
cause a Dissolution of the Partnership. The withdrawal of a Partner and/or the
admission of a new Partner shall not cause a Dissolution of the Partnership.
13.4. Winding Up.
a) Partnership Operations. Upon Dissolution of the Partnership as
provided in Section 13.1, the continuing operation of the Partnership's business
shall be confined to those activities reasonably necessary to wind up the
Partnership's affairs, discharge its obligations and preserve and distribute its
assets in accordance with this Section 13.4, except as otherwise provided in
this Agreement. Allocations of Net Income and Net Loss and allocations of items
of income and deduction shall be made among the Partners as provided in Article
5.
b) Liquidating Distributions. Upon Dissolution of the Partnership,
the affairs of the Partnership shall be wound up, the assets liquidated (except
as otherwise provided in Section 13.4(e)) and the proceeds and other assets
distributed in the following order:
(1) Liabilities owing to creditors, including expenses of
liquidation, and liabilities to Partners who are creditors to the extent
permitted by law, in satisfaction of liabilities of the Partnership other than
any liability for a Distribution to a Partner under Act Section 15661, 15664 or
15665;
(2) Deposit in a trust account of a reasonable reserve for
payment of contingent liabilities and expenses; and
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(3) To the Partners in accordance with Section 5.12 hereof.
c) Partner's Obligation to Make Up Negative Capital Account.
(1) Except as otherwise provided in this Section 13.4(c),
no Partner shall have an obligation to restore its negative Capital Account
balance, if any.
(2) If, after taking into account all Capital Account
adjustments for the Partnership's taxable year during which the General
Partner's interest is liquidated, the General Partner has a deficit in its
Capital Account, the General Partner shall contribute to the capital of the
Partnership the amount of the deficit balance in the Capital Account.
(3) If, after taking into account all Capital Account
adjustments for the Partnership's taxable year during which the Limited Partner
interest of either F. ▇▇▇▇▇▇ ▇▇▇▇▇▇ or ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is liquidated, that
Limited Partner has a deficit in his Capital Account, he shall contribute to the
capital of the Partnership. Any contribution to restore such deficit Capital
Account balance required by this Section 13.4(c)(3) shall be limited to the
lesser of: (a) the amount of ▇▇▇▇▇▇'▇ or ▇▇▇▇▇▇▇'▇ deficit Capital Accounts that
they respectively have agreed with the Partnership to restore; or (b) the amount
of the deficit balance in the Capital Account.
(4) Any amounts contributed to the Partnership pursuant to
Section 13.4(c)(3) shall be made by the later of: (a) the end of such
Partnership taxable year; or (b) within ninety (90) days after the date of such
liquidation. Any amounts contributed to the Partnership under this Section
13.4(c) shall be used first to pay creditors of the Partnership and any
remaining amount shall be distributed to the other Partners then having a
positive balance in their respective Capital Accounts in proportion to such
positive balances. A Partner's interest in the Partnership shall be deemed
liquidated for purposes of this Section 13.4(c)(4) upon the liquidation of the
Partnership or on the date of liquidation of the Partner's interest in the
Partnership under Treasury Regulations section 1.761-1(d). A liquidation for
such purposes shall occur upon a termination of the Partnership under Code
section 708(b)(1) or upon cessation of the Partnership as a going concern as
defined in Treasury Regulations section 1.704-1(b)(2)(ii)(g).
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(5) This Section 13.4(c) is intended to operate as a full
or partial, as the case may be, deficit restoration obligation or obligation to
make a payment within the mean of Treasury Regulations section
1.704-1(b)(2)(ii)(b) and section 1.752-2(b), respectively.
d) Restoration of Distributions. Each Partner, other than, unless
otherwise required by law, holders of Preferred Units, as such, shall return a
Distribution to the extent that, immediately after giving effect to the
Distribution, all liabilities of the Partnership exceed the fair market value of
the Partnership assets to the extent provided in Act Section 15666.
e) Distributions in Kind. The General Partner may distribute
Partnership assets in kind, rather than liquidate such assets. The General
Partner is specifically authorized to distribute such assets to itself. A
Distribution in kind shall be made in a manner consistent with Section 13.4(b).
Any Distributions in kind shall be based upon the current fair market value of
Partnership assets. No Limited Partner shall have the right or power to demand
or receive property other than cash in return for the Partner's invested
capital. If the value of property distributed to a Partner exceeds the amount
that Partner is entitled to upon Dissolution, then the Partner receiving the
Distribution in kind will be obligated to contribute to the Partnership
concurrently with the Partner's receipt of the Distribution an amount in cash
equal to the amount of such excess.
13.5 Waiver of Right to Court Decree of Dissolution. None of the
Partners shall have the right to dissolve the Partnership except as otherwise
provided in this Agreement. The Partners agree that irreparable damage would be
done to the Partnership if one of the Partners should bring an action in court
to dissolve the Partnership. Care has been taken in this Agreement to provide
what the Partners feel is a fair settlement between them in the event of various
contingencies, including Dissolution, and each Partner accepts the provisions of
this Agreement as establishing the Partners' rights and duties. Each Partner
hereby waives the right to seek a court decree of Dissolution or to seek the
appointment by a court of a liquidator for the Partnership.
ARTICLE 14. SPECIAL POWER OF ATTORNEY.
14.1. Attorney-in-Fact. Each Limited Partner grants to the General
Partner a special power of attorney irrevocably making, constituting and
appointing the General Partner as attorney-in-fact, with power and authority to
act in the Limited Partner's name and on the Limited Partner's behalf to
execute, acknowledge and swear to in the execution and acknowledgment of filing
of the following documents.
a) Government Instruments. Any instrument or document required to
be filed by the Partnership under the laws of any state or by any governmental
agency, or which the General Partner elects to file in furtherance of the
Partnership's business.
b) Partnership Changes. Any instrument or document that may be
required to effect the continuation of the Partnership, the admission of an
additional or substituted Partner, or the Dissolution and termination of the
Partnership (provided that the continuation, admission or Dissolution and
termination are in accordance with the terms of this Agreement), or to reflect
any change in amount of the Partner's Capital Account in accordance with the
terms of this Agreement.
c) Agreement Amendment. Any amendment of this Agreement duly
approved in accordance with the terms of this Agreement. The General Partner
shall promptly furnish to the Limited Partner a copy of any amendment to this
Agreement executed pursuant to a power of attorney from the Limited Partner.
14.2. Special Provisions. The special power of attorney being granted by
each Limited Partner under this Article 14: (a) is a special power of attorney
coupled with an interest; (b) is irrevocable; (c) shall survive the
Incompetency of the granting Limited Partner; and (d) is limited to the matters
set forth in Section 14.1.
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ARTICLE 15. COVENANTS.
15.1. The General Partner hereby covenants and agrees, for so long as any
Preferred Units are outstanding and notwithstanding any other provision of this
Agreement to the contrary, as follows.
a) Limitation on Distributions. Except as set forth in Section
5.12(c), Section 5.12(d), the Partnership shall not (nor shall it permit any of
its Subsidiaries to) pay or make any distribution on, or make any payment on
account of, or purchase, redeem, defease, retire or otherwise acquire, or set
apart assets for a sinking or other analogous fund for, the purchase,
redemption, defeasance, retirement or other acquisition of, any interests in the
Partnership (other than in respect of Preferred Units), whether now or hereafter
outstanding, or make any other distribution or payment in respect thereof,
either directly or indirectly, whether in cash or property or in obligations of
the Partnership or any such Subsidiary.
b) Limitation on Transactions with Affiliates. Except as provided
in Sections 6.1(b),(c) or (d) and 6.8 and the last sentence of Section 3.6 and
except with respect to the ▇▇▇▇ Subsequent Acquisition, the Partnership shall
not (and shall not permit any of its Subsidiaries to) enter into any transaction
(an "Affiliate Transaction"), including without limitation, any purchase, sale,
lease or exchange of property or the rendering of any service, with the General
Partner or any Affiliate of the Partnership or the General Partner (other than
transactions entirely between the Partnership and its Subsidiaries) unless (i)
such Affiliate Transaction is on terms that are no less favorable to the
Partnership or the relevant Subsidiary than those that would have been obtained
in a comparable transaction by the Partnership or the relevant Subsidiary with
an unrelated Person: (ii) in the case of such an Affiliate Transaction
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involving aggregate payments in excess of $250,000, the Partnership delivers to
the holders of Preferred Units, Warrants and Warrant Units a resolution of the
Board of Directors of the General Partner set forth in an officer's certificate
certifying that such transaction complies with clause (i) above, is in the best
interests of the Partnership or the relevant Subsidiary and has been approved by
a majority of the disinterested directors of the General Partner; and (iii) with
respect to any Affiliate Transaction involving aggregate payments in excess of
$1,500,000, the Partnership delivers to the holders of Preferred Units; Warrants
and Warrant Units an opinion as to the fairness to the Partnership or the
relevant Subsidiary from a financial point of view which is issued by an
investment banking firm of national standing; or (B) than has been delivered to
the Partnership the prior written consent of a majority of the Preferred Units
and the holders of a majority of the Warrants (determined by reference to the
number of Warrant Units issuable thereunder) and Warrant Units then outstanding.
The Partnership will give written notice of each Affiliate Transaction to each
holder of Preferred Units, Warrants and Warrant Units no later than five days
before consummation thereof.
ARTICLE 16. CERTAIN PROVISIONS APPLICABLE TO PREFERRED UNITS
16.1. Redemption.
a) Optional Redemption. Until September 23, 1998, the Preferred
Units may be redeemed at the option of the Partnership, in whole or from time to
time in part, in the manner provided in Section 16.1(c) at a redemption price
equal to 102% of the Preferred Units Capital Account Amount for the Preferred
Units so redeemed, payable in cash, plus the aggregate Preferred Return
(cumulative from the date of this Agreement) for all such Preferred Units, which
shall also be paid in cash, to the Redemption Date. Following September 23,
1998, the Preferred Units may be redeemed at the option of the Partnership, in
whole or from time to time in part, at 100% of the Preferred Units Capital
Account Amount for the Preferred Units so redeemed, payable in cash, plus the
aggregate Preferred Return (cumulative from the date of this Agreement) for all
such Preferred Units, which shall also be paid in cash, to the Redemption Date.
b) Mandatory Redemption. The Partnership shall be obligated to
redeem all outstanding Preferred Units on December 23, 2006 at a redemption
price equal to the Redemption Amount, payable in cash.
c) Procedure for Redemption.
(i) In the event of a redemption of less than all of the
Preferred Units, the Units so redeemed will be determined by the
Partnership pro rata according to the number of such Units held by each
holder thereof.
(ii) The Partnership shall send a written notice of
redemption (the "Redemption Notice") by first-class mail, postage prepaid,
not fewer than 30 days nor more than 60 days prior to the applicable
Redemption Date to each holder of Preferred Units as of the record date
fixed for such redemption of Preferred Units at such holder's address as
the same appears on the records of the Partnership; provided, however, that
no failure to give such notice to any holder or holders nor any deficiency
therein shall affect the validity of the procedure for the redemption of
any Preferred Units to be redeemed except as to the holder or holders to
whom the Partnership has failed to give said notice or except as to the
holder or holders whose notice was defective. The Redemption Notice shall
state:
(A) whether all or less than all the outstanding
Preferred Units are to be redeemed and the total number of
Preferred Units being redeemed;
(B) the number of Preferred Units held of record by
that specific holder that the Partnership intends to redeem;
(C) the applicable Redemption Date;
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(D) the manner and place or places at which payment
for the Preferred Units called for redemption will, upon presentation
and surrender to the Partnership of the certificates, if any,
representing the Preferred Units ("Preferred Unit Certificates")
being redeemed, be made; and
(E) that the Preferred Return with respect to the
Preferred Units being redeemed shall cease to accrue on the
applicable Redemption Date.
(iii) On the applicable Redemption Date, the full
applicable redemption price shall become payable for the Preferred Units
being redeemed on such Redemption Date. As a condition of payment of the
applicable redemption price, each holder of Preferred Units must surrender
the Preferred Units Certificates, if any, representing the Preferred Units
being redeemed by the Partnership in the manner and at the place designated
in the applicable Redemption Notice. The full applicable redemption price
for such Units properly tendered for payment shall be paid in accordance
with the provisions of Section 8.1 of the Purchase Agreement to the person
whose name appears on such Preferred Unit Certificate or Certificates, if
any, as the owner thereof, on and after the applicable Redemption Date when
and as Preferred Unit Certificates, if any, for the Preferred Units being
redeemed are properly tendered for payment. Each such surrendered Preferred
Unit Certificate shall be canceled and retired. In the event that less than
all of the Preferred Units represented by any such Preferred Unit
Certificate are redeemed, a new Preferred Units Certificate shall be issued
representing the unredeemed Units if requested by such holder pursuant to
Section 17.15.
(iv) On the applicable Redemption Date, unless the
Partnership defaults in the payment of the applicable redemption price, the
Preferred Return will cease to accrue with respect to the Preferred Units
called for redemption. All rights of holders of such redeemed Preferred
Units will terminate except for the right to receive the applicable
redemption price.
16.2. Limitation on Certain Asset Sales.
a) The Partnership will not, and will not permit any of its
Subsidiaries to, consummate an Asset Sale unless (i) the Partnership or such
Subsidiary, as the case may be,
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receives consideration at the time of such sale or other disposition at least
equal to the fair market value thereof (as determined in good faith by the
Board of Directors of the General Partner); (ii) not less than 85% of the
consideration received by the Partnership or such Subsidiary, as the case may
be, is in the form of cash or Temporary Cash Investments and is received at the
time of such disposition; and (iii) the Asset Sale Proceeds received by the
Partnership or such Subsidiary are applied (A) first, to the extent the
Partnership elects, or is required, to prepay, repay or purchase debt under any
then existing indebtedness of the Partnership or any Subsidiary within 180 days
following the receipt of the Asset Sale Proceeds from any Asset Sale, provided
that any such repayment shall result in permanent reduction of the commitments
thereunder in an amount equal to the principal amount so repaid; (B) second, to
the extent of the balance of Asset Sale Proceeds after application as described
above, to the extent the Partnership elects, to an investment in assets
(including capital stock or other securities purchased in connection with the
acquisition of capital stock or property of another Person) used or useful in a
business similar or ancillary to the business of the Partnership or such
Subsidiary as conducted on the date hereof, provided that such investment is
consummated within 180 days following the receipt of such Asset Sale Proceeds
(the "Reinvestment Date"); and (C) third, if on the Reinvestment Date with
respect to any Asset Sale, the Available Asset Sale Proceeds exceed $1,000,000,
the Partnership shall apply an amount equal to such Available Asset Sale
Proceeds in excess of $1,000,000 to an offer to repurchase Preferred Units at
a purchase price in cash equal to, the Redemption Amount (an "Excess Proceeds
Offer").
b) If the Partnership is required to make an Excess Proceeds Offer,
the Partnership shall mail, within 30 days following the Reinvestment Date, a
notice to the holders of Preferred Units stating, among other things: (1) that
such holders of Preferred Units have the right to require the Partnership to
apply such Available Asset Sale Proceeds to repurchase Preferred Units at a
purchase price in cash as set forth above; (2) the purchase date (the "Purchase
Date"), which shall be no earlier than 30 days and not later than 60 days from
the date such notice is mailed; (3) the instructions, determined by the
Partnership, that each holder of Preferred Units must follow in order to have
such Preferred Units repurchased; and (4) the calculations used in determining
the amount of Available Asset Sale Proceeds to be applied to the repurchase of
such Preferred Units. The Excess Proceeds Offer shall remain open for a period
of 20 business days following its commencement (the "Offer Period"). The
notice, which shall govern the terms of the Excess Proceeds Offer, shall also
state:
(1) that the Excess Proceeds Offer is being made pursuant to
this Section 16.2 and the length of time the Excess Proceeds offer will remain
open;
(2) the purchase price and the Purchase Date;
(3) that any Preferred Units not tendered or accepted for
payment will continue to accrue the Preferred Return;
(4) that any Preferred Units accepted for payment pursuant to
the Excess Proceeds Offer shall cease to accrue the Preferred Return on and
after the Purchase Date;
(5) that holders electing to have Preferred Units purchased
pursuant to any Excess Proceeds Offer will be required to surrender the
Preferred Unit Certificates, if any, representing such Preferred Units to the
Partnership or a paying agent at the address specified in the notice at least
three Business Days before the Purchase Date;
(6) that holders will be entitled to withdraw their election if
the Partnership, or any paying agent, as the case may be, receives, not later
than the expiration of the Offer Period, a telegram, telex, facsimile
transmission or letter setting forth the name of such holder, the aggregate
Preferred Units the holder delivered for purchase and a statement that such
holder is withdrawing its election to have such Preferred Units purchased;
(7) that, if the aggregate purchase price of the Preferred
Units surrendered by holders exceeds the Available Asset Sale Proceeds, the
Partnership shall select the
-40-
47
Preferred Units to be purchased on a pro rata basis based on the number of such
Units surrendered by holders not otherwise withdrawn by the expiration of the
Offer Period; and
(8) that holders whose Preferred Units were purchased only in
part will be issued new Preferred Unit Certificates, if so requested pursuant
to Section 17.15, representing Capital Accounts equal to the Capital Accounts
for the unpurchased portion of the Preferred Units surrendered.
On or before the Purchase Date, the Partnership shall, to the extent
lawful, accept for payment, on a pro rata basis as set forth above to the
extent necessary, Preferred Units or portions thereof tendered pursuant to the
Excess Proceeds Offer. The Partnership or its paying agent, as the case may be,
shall, in accordance with the provisions of Section 8.1 of the Purchase
Agreement, pay to each tendering holder an amount equal to the purchase price
of the Preferred Units tendered by such holders and so accepted, and the
Partnership shall promptly issue a new Preferred Unit Certificate, if so
requested pursuant to Section 17.15, mail or deliver any such new Preferred
Unit Certificate to such holder representing Capital Accounts equal to the
Capital Accounts for any unpurchased portion of such Preferred Units. Preferred
Unit Certificates, if any, representing any Preferred Unit not so accepted
shall be promptly mailed or delivered by the Partnership to the holder thereof.
If an Excess Proceeds Offer is not fully subscribed, the Partnership may
retain that portion of the Available Asset Sale Proceeds not required to
repurchase Preferred Units.
16.3. Change of Control.
a) Within 30 days of the occurrence of a Change of Control, the
Partnership shall notify the holders of Preferred Units in writing of such
occurrence and shall make an offer to purchase (the "Change of Control Offer")
the outstanding Preferred Units at a purchase price in cash equal to, for each
such holder, (i) in respect of any Change of Control Payment Date occurring on
or before September 23, 1998, 102% of the Preferred Units Capital Account
Amount for the Preferred Units so redeemed plus the aggregate Preferred Return
(cumulative from the date of this Agreement) to the Change of Control Payment
Date for all such Preferred Units and (ii) in respect of any Change of Control
Payment Date thereafter, 100% of the Preferred Units Capital Account Amount for
the Preferred Units so redeemed plus the aggregate Preferred Return (cumulative
from the date of this Agreement) to the Change of Control Payment Date for all
such Preferred Units (such purchase price being hereinafter referred to as the
"Change of Control Purchase Price") in accordance with the procedures set forth
in this Section 16.3.
b) Within 30 days of the occurrence of a Change of Control, the
Partnership also shall send by first-class mail, postage prepaid, to each
holder of Preferred Units, at the address appearing in the records of the
Partnership, a notice stating:
(1) that the Change of Control Offer is being made pursuant to
this Section 16.3 and that all Preferred Units tendered will be accepted for
payment, subject to the terms and conditions set forth herein;
-41-
48
(2) the Change of Control Purchase Price and the purchase date
(which shall be a Business Day no earlier than 20 Business Days from the date
such notice is mailed (the "Change of Control Payment Date"));
(3) that any Preferred Unit not tendered will continue to accrue the
Preferred Return;
(4) that, unless the Partnership defaults in the payment of the
Change of Control Purchase Price, any Preferred Unit accepted for payment
pursuant to the Change of Control Offer shall cease to accrue the Preferred
Return on and after the Change of Control Payment Date;
(5) that holders accepting the offer to have their Preferred Units
purchased pursuant to a Change of Control Offer will be required to surrender
the Preferred Unit Certificates, if any, representing the Preferred Units to
the paying agent or the Partnership, as the case may be, at the address
specified in the notice prior to the close of business on the Business Day
preceding the Change of Control Payment Date;
(6) that holders will be entitled to withdraw their acceptance if
the paying agent or the Partnership, as the case may be, receives, not later
than the close of business on the third Business Day preceding the Change of
Control Payment Date, a telegram, telex, facsimile transmission or letter
setting forth the name of the holder, the number of Preferred Units delivered
for purchase and a statement that such holder is withdrawing its election to
have such Preferred Units purchased;
(7) that holders whose Preferred Units are being purchased only in
part will be issued new Preferred Unit Certificates, if so requested pursuant
to Section 17.15, representing Preferred Units with Capital Accounts equal to
the Capital Accounts for the unpurchased portion of the Preferred Units
surrendered;
(8) any other procedures that a holder must follow to accept a
Change of Control Offer or effect withdrawal of such acceptance; and
(9) the name and address of the paying agent.
-42-
49
On the Change of Control Payment Date, the Partnership shall, to the
extent lawful, (i) accept for payment Preferred Units or portions thereof
tendered pursuant to the Change of Control Offer, and (ii) deposit with the
paying agent money sufficient to pay the purchase price of Preferred Units or
portions thereof so tendered. The paying agent shall, in accordance with the
provisions of Section 8.1 of the Purchase Agreement, pay to each such holder an
amount equal to the purchase price of such Preferred Units so tendered and the
Partnership shall execute and issue Preferred Unit Certificates, if so requested
pursuant to Section 17.15, representing Preferred Units with Capital Accounts
equal to the Capital Accounts for any unpurchased portion of the Preferred Units
surrendered.
16.4. Subordination Agreement.
a) To the extent that, pursuant to the terms of the Subordination
Agreement, dated December 23, 1997, by and among the Administrative Agent (as
defined in the Credit Agreement), the holders of Preferred Units outstanding on
the date hereof and the Partnership, holders of Preferred Units, Warrants and
Warrant Units shall be required to return certain cash distributions or payments
made to such holders by the Partnership hereunder, all such cash distributions
so returned shall be deemed to not have been made hereunder and all rights of
such holders against the Partnership hereunder in respect of such cash
distributions or otherwise shall remain in full force and effect and be
returned, from and after the date on which such distributions or payments were
made, to what they would have been had such distributions or payments not been
made.
b) In the event that the Administrative Agent shall not provide
holders of Preferred Units, Warrants or Warrant Units the acknowledgment
referred to in the last sentence of Section 1 of the Subordination Agreement on
or before five days after the date of the distribution or payment to which
such acknowledgment (had it been given) relates, the Partnership shall, at the
request of any such holder, accept the return of such portion of such
distribution or payment specified by such holder in a notice given to the
Partnership no later than 20 days after the date on which such distribution or
payment was made, whereupon the provisions of Section 16.4(a) shall apply in
respect of returned distribution or payment.
ARTICLE 17. MISCELLANEOUS.
17.1. Headings. The titles and headings of the various sections of this
Agreement are intended solely for convenience of reference and are not intended
to explain, modify or place any interpretation upon any of the provisions of
this Agreement.
17.2. Time of Essence. All times and dates in this Agreement shall be of
the essence.
17.3 Entire Agreement; Modification; Waiver. This Agreement supersedes
all prior and contemporaneous oral agreements, representations and
understandings of the parties. No supplement, modification or amendment of this
Agreement shall be binding unless executed in writing by all of the parties. No
waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar, nor shall
any
-43-
50
waiver constitute a continuing waiver. No waiver shall be binding unless
executed in writing by the party making the waiver;
17.4. Amendment.
a) Except as otherwise provided in this Section 17.4 or in Section
6.4, this Agreement may be amended only by a writing signed by the General
Partner and approved by a Majority of the Limited Partners.
b) Notwithstanding the foregoing clause (a) of this Section 17.4,
an amendment to the Agreement that modifies a Limited Partner's Units or share
of Net Income and Net Loss in a way that is disproportionate to the way
other Limited Partners are affected by the amendment, must be approved in
writing by the affected Partner.
c) Notwithstanding the foregoing clauses (a) and (b) of this
Section 17.4, (i) no amendment to this Agreement which modifies any provision of
Section 3.7(b) or Article 5, 13, 15 or 16 hereof or this Section 17.4, or any
other provision relating specifically to the holders of Preferred Units, as
such, or the Preferred Units, or any of the definitions used in any such Article
or provisions shall be effective unless and until such amendment is approved in
writing by a majority of the Preferred Units and (ii) any amendment to this
Agreement which modifies any provision of Section 16.2 made without the prior
written consent of the Lenders party to the Credit Agreement shall be void.
(d) Notwithstanding any provision of this Article 17 or Section
6.4 hereof, the General Partner shall not (i) amend this Agreement in any manner
adverse to the holders of the Warrants or Warrant Units or which may impose
liability hereunder on the holders of the Warrants or Warrant Units except as
are required by law or (ii) amended this Agreement so as to restrict the
transferability of the Warrant Units.
(e) Notwithstanding any provision of this Article 17 or Section
6.4 hereof, the General Partner shall have the power to amend this Agreement
from time to time without obtaining the consent of any Limited Partner in
connection with the obligation of the Partnership to issue Units to the holders
of the Warrants upon exercise thereof.
17.5. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
17.6. Recovery of Litigation Costs. If any legal action or any
arbitration or other proceeding is brought for the enforcement of this
Agreement, or because of an alleged dispute, breach, default or
misrepresentation in connection with any of the provisions of this Agreement,
the successful or prevailing party or parties shall be entitled to recover
reasonable attorneys' fees and other costs incurred in that action or
proceeding, in addition to any other relief to which it or they may be
entitled.
17.7. Severability. In case any one or more of the provisions contained
in this Agreement or any application of the provisions shall be invalid,
illegal or unenforceable in any
-44-
51
respect, the validity, legality and enforceability of the remaining provisions
or the remaining applications will not in any way be affected or impaired.
17.8. Notices. Notices given under this Agreement shall be in writing
and shall either be served personally or delivered by Certified first-class
United States mail, postage prepaid return receipt requested. Notices shall be
directed to the Partners at the addresses shown in the Partnership records
required to be kept in accordance with the provisions of Section 4.3(a). Any
Partner may change the Partner's address for purposes of this Section 17.8 by
giving written notice of the new address to the General Partner.
17.9. Gender and Number. As used in this Agreement, the masculine,
feminine or neuter gender, and the singular or plural number, shall each
include the others whenever the context so indicates.
17.10. Additional Documents. Each party hereto agrees to execute and
acknowledge, if required, any and all other documents and writings which may be
necessary to carry out the purposes and provisions hereof.
17.11. Parties in Interest. Nothing in this Agreement, whether express
or implied, is intended to confer any rights or remedies under or by reason of
this Agreement on any Persons other than the parties to it and their respective
successors and assigns and the holders of Warrants and Warrant Units, nor is
anything in this Agreement intended to relieve or discharge the obligation or
liability of any third Persons to any party), to this Agreement, nor shall any
provision give any third Person any right of subrogation or action over or
against any party to this Agreement.
17.12. Counterparts. This Agreement may be executed in one or more
duplicate counterparts, each of which together are deemed to be equivalent to a
signed original for all purposes.
17.13. Statutory References. All references to statutes in this
Agreement shall be read as referring to such statutes as amended from time to
time, and shall also refer to the comparable provisions of any successor
statutes, as amended from time to time.
17.14. Certificate of Nonforeign Status. Each Limited Partner (other
than holders of Preferred Units, Warrants and Warrant Units) represents and
warrants that it is, or is composed of Persons who are United States citizens
or resident aliens. Each Limited Partner will execute Certificates of
Nonforeign Status in the form attached hereto as Exhibit B and will inform the
General Partner immediately of any changes that would render the certificate
invalid or misleading.
17.15. Preferred Unit Certificates. Upon the request by a majority of
the holders of Preferred Units, the Partnership shall provide for the issuance
of Preferred Unit Certificates in such form as shall be reasonably acceptable
to holders of at least 85% of the Preferred Units then outstanding.
17.16. No provision of this Agreement shall abrogate any rights of any
Limited Partner pursuant to Section 15636(f)(1)(g) and Section 15636(f)(3) of
the Act.
-45-
52
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of December 23, 1997.
GENERAL PARTNER:
MW SIGN CORP., a California corporation
By /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Its President
------------------------------------
LIMITED PARTNERS
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For J. ▇▇▇▇ ▇▇▇▇▇▇*
▇▇▇▇ ▇. AND ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇. ▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇ ▇▇▇▇▇*
-45-
53
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇▇▇▇▇▇*
▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇ SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇. Humanson*
▇▇▇▇▇ AND ▇▇▇▇▇▇▇ JUMP
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇ Jump*
-46-
54
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ Jump*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. AND ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇*
December 23, 1997 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, AS
TRUSTEE OF THE ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, M.D., INC. PROFIT
SHARING TRUST*
MW SIGN CORP.
By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title:
---------------------------------
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇▇▇▇▇▇*
December 23, 1997 /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇*
-47-
55
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇*
MW SIGN CORP., a California corporation
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title: President
---------------------------------
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇. ▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇*
▇▇▇▇▇▇▇ ▇. AND ▇▇▇▇ ▇'▇▇▇▇▇
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇'▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, M.D.*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
-48-
56
▇▇▇▇▇ ▇. AND ▇▇▇▇ ▇▇▇▇▇▇▇
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇*
NEVADA OUTDOOR, a Nevada corporation
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Title:
---------------------------------
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇ ▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇*
MW SIGN CORP.
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
For ▇▇▇▇▇▇ ▇. ▇▇▇▇▇*
*By MW SIGN CORP., a California
corporation, as Attorney-in-Fact
December 23, 1997 By: /s/ E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
-49-
57
EXHIBIT A
▇▇▇▇▇▇ MEDIA, A CALIFORNIA LIMITED PARTNERSHIP
LIMITED PARTNERS
At December 23, 1997
NAME Number of Units
---- ---------------
MW Sign Corp. (as General Partner)
MW Sign Corp. (as a Limited Partner)
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
E. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
Lojacano Trust
J. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Humanson
▇▇▇▇▇ & ▇▇▇▇▇▇▇ Jump
▇▇▇▇▇▇▇ & ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇ ▇'▇▇▇▇▇
▇▇▇▇ & ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Estate of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Nevada Outdoor Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ---------------
TOTAL: ===============
------
58
EXHIBIT B
▇▇▇▇▇▇ MEDIA, A CALIFORNIA LIMITED PARTNERSHIP
HOLDERS OF PREFERRED UNITS
At December 23, 1997
Name Number of Units
---- ---------------
CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp. 7,500
Total Return Portfolio 2,000
IDS Life Income Advantage Fund 1,500
IDS Life Special Income Fund 2,500
High Yield Portfolio 11,500
------
Total 25,000
======