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Exhibit 3.109
PARTNERSHIP AGREEMENT
OF
SKMA BROADCASTING PARTNERSHIP
This PARTNERSHIP AGREEMENT (the "Agreement") is executed as of the 29th
day of July 1994, by and between UHF Investments, Inc., a Delaware corporation,
and Silver King Broadcasting of Massachusetts, Inc., a Delaware corporation.
RECITAL
The parties to this Agreement desire to enter into this Agreement to
provide for the formation of a general partnership, the allocation of profits
and losses, cash flow, and other proceeds of the Partnership between the
Partners, the respective rights, obligations, and interests of the Partners to
each other and to the Partnership, and certain other matters.
AGREEMENT
In consideration of the mutual covenants and agreements set forth in
this Agreement, the parties agree as follows:
SECTION 1 THE PARTNERSHIP AND ITS BUSINESS.
1.1 Formation and Continuation. The parties to this Agreement (the
"Partners") hereby form a general partnership (the "Partnership") under the
Uniform Partnership Act of the State of Delaware (the "Act"). The rights and
liabilities of the Partners shall be as provided in the Act, except as expressly
provided in this Agreement.
1.2 Partnership Name. The name of the Partnership is "SKMA Broadcasting
Partnership."
1.3 Term of Partnership. The term of the Partnership shall commence on
the date of this Agreement and shall continue until terminated in accordance
with Section 6.
1.4 Purposes of the Partnership. The purposes of the Partnership shall
be to hold all licenses, permits, and authorizations issued by the Federal
Communications Commission, now or in the future, in connection with the business
and operations of television station WHSH-TV, Marlborough, Massachusetts (the
"Station"); to use such licenses, permits, and authorizations in the conduct of
the business of such television station by Silver King Broadcasting of
Massachusetts, Inc.; and to do all other things necessary, appropriate, or
advisable in connection with those purposes.
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1.5 Principal Place of Business. The principal place of business of the
Partnership shall be located at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, or any other place that the Partners may elect.
1.6 Fiscal Year. The fiscal year of the Partnership shall end August
31, of each year.
SECTION 2 PARTNERSHIP INTERESTS: CAPITAL CONTRIBUTIONS.
2.1 Partnership Interest. Except as otherwise provided herein, the
interest of each Partner in the Partnership and in all of the Partnership assets
shall be as follows:
UHF Investments, Inc. 1%
Silver King Broadcasting of Massachusetts, Inc. 99%
Such interest is hereinafter referred to as such Partner's "Partnership
Interest" in the Partnership.
(a) The respective capital account of each Partner shall
reflect the Partnership Interest of each Partner, adjusted as provided in this
Agreement.
(b) Each Partner shall receive the same percentage of the net
profits and losses of the Partnership as the Partnership Interest held by such
Partner.
2.2 Definition of Capital Contributions. For purposes of this
Agreement, "Capital Contribution" means, for any Partner, the amount of money
plus the fair market value of property that the Partner contributes to the
capital of the Partnership pursuant to this Section 2.
2.3 Capital Contributions by Partners.
(a) Initial Contributions. Silver King Broadcasting of
Massachusetts, Inc. hereby assigns to the Partnership as a Capital Contribution
all of its right, interest and title in and to the licenses, permits, and
authorizations issued by the Federal Communications Commission and now held by
Silver King Broadcasting of Massachusetts, Inc., in connection with the business
and operations of the Station which are set forth on Attachment A hereto, The
Partners agree that such licenses, permits, and authorizations have a fair
market value equal to the value assigned thereto on the books of Silver King
Broadcasting of Massachusetts, Inc. UHF Investments, Inc. shall make a pro rata
cash contribution to the Partnership.
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(b) Additional Contributions. The Partners shall make
additional Capital Contributions to the Partnership as shall be mutually agreed
upon by both Partners.
2.4 Holding of Title. Title to all Partnership assets shall be held in
the Partnership name.
2.5 Exculpation. A Partner, and its stockholders, affiliates, agents,
and representatives shall not be liable, in damages or otherwise, to the
Partnership or to any other Partner for any loss that arises out of any acts
performed or omitted by it pursuant to the authority granted by this Agreement
except where any act or omission constitutes gross negligence or willful
misconduct. A Partner shall look solely to the assets of the Partnership for
return of the Partner's investment, and if the property of the Partnership
remaining after the discharge of the debts and liabilities of the Partnership is
insufficient to return a Partner's investment, a Partner shall have no recourse
against any other Partner.
2.6 Permitted Transactions.
(a) Other Businesses. Any Partner (and any stockholder,
affiliate, agent, or representative of a Partner) may engage in or possess an
interest in other business ventures of any nature or description, independently
or with others, whether currently existing or hereafter created, including
business ventures engaged in the acquisition, ownership, operation, or
management of television stations. Neither the Partnership nor any Partner shall
have any rights in or to any independent ventures of any of the Partners or to
the income or profits derived therefrom, nor shall any Partner have any
obligation to any other Partner with respect to any such enterprise or related
transaction.
(b) Transactions with Partners and Affiliates. Nothing in this
Agreement shall preclude transactions between the Partnership and a Partner or a
stockholder, affiliate, agent, or representative of a Partner.
SECTION 3 CAPITAL ACCOUNTS, DISTRIBUTIONS, PROFITS, AND LOSSES.
3.1 Capital Accounts.
(a) Generally. A separate "Capital Account" shall be
maintained for each Partner in accordance with the Internal Revenue Code of 1986
(the "Code") and the Treasury Regulations thereunder. Subject to any contrary
requirements of the Code and the Treasury Regulations thereunder, each Partner's
Capital
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Account shall be (a) increased by (1) the amount of any cash contributed to the
Partnership by the Partner; (2) the fair market value of any property
contributed by the Partner to the Partnership (net of liabilities secured by the
contributed property that the Partnership is considered to assume or take
subject to under Section 752 of the Code); (3) any amount deemed contributed
pursuant to Treasury Regulations Section 1.704-l(b)(2)(iv)(c) or any amount paid
to any person or entity in satisfaction of a liability of the Partnership; (4)
allocations to the Partner of Profits or items of income or gain pursuant to
Section 3.3; (5) allocations to the Partner of unrealized gain pursuant to
Section 3.1(b); and (6) other additions made in accordance with the Code and the
Treasury Regulations thereunder; and (b) decreased by (1) the amount of money
distributed to the Partner by the Partnership; (2) the fair market value
(without regard to Section 7701(g) of the Code) of property distributed to the
Partner by the Partnership (net of liabilities secured by the distributed
property that the Partner is considered to assume or take subject to under
Section 752 of the Code); (3) any amount deemed distributed pursuant to Treasury
Regulations Section 1.704-l(b)(2)(iv)(c); (4) allocations to the Partner of
Losses or items of expense, deduction, or loss pursuant to Section 3.3; (5)
allocations to the Partner of unrealized loss pursuant to Section 3.1(b); and
(6) other reductions made in accordance with the Code and the Treasury
Regulations thereunder.
(b) Distributions in Kind. If any property is distributed to a
Partner in kind, the Capital Accounts of the Partners shall be adjusted
immediately prior to such distribution to reflect the manner in which the
unrealized income, gain, loss and deduction inherent in such property (that has
not been reflected in the Capital Accounts previously) would have been allocated
between the Partners under Section 3.3 if there had been a taxable disposition
of the property for its fair market value.
3.2 Distributions.
(a) Distributions Prior to Dissolution. The Partnership may
distribute cash or property of the Partnership to the Partners prior to the
dissolution of the Partnership at the discretion of the Managing Partner, and
any such distributions shall be made to the Partners in proportion to their
Capital Contributions until the Partners have received distributions equal to
their respective Capital Contributions and thereafter to the Partners in
accordance with their Partnership Interests.
(b) Distributions on Dissolution and Termination of the
Partnership. Cash or property of the Partnership available for distribution
incident to the dissolution and termination of
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the Partnership, as provided for in Section 6, shall be distributed to the
Partners in accordance with their respective positive Capital Account balances,
determined after allocation of Profits and Losses, including allocations
pursuant to Section 3.3(d). Without limiting the effect of the foregoing
sentence, the Partners intend that cash or property of the Partnership available
for distribution incident to the dissolution and termination of the Partnership
will be distributed to the Partners in proportion to their Capital Contributions
until the Partners have received distributions equal to their respective Capital
Contributions and thereafter to the Partners in accordance with their
Partnership Interests.
3.3 Allocations of Profits and Losses.
(a) Definition of Profits and Losses. "Profits" and "Losses"
mean the annual income and loss, respectively, of the Partnership for a fiscal
year (or portion thereof) as determined by the Partnership's accountants in
accordance with principles applied in determining income, gains, expenses,
deductions, and losses reported by the Partnership for federal income tax
purposes on its partnership tax return, including, as applicable, any gain or
loss from the sale, exchange, or other disposition of assets.
(b) Allocations of Losses Prior to Liquidation. Except as
otherwise provided in this Agreement, all Losses and all expenditures of the
Partnership that are not deductible in computing taxable income and are not
capital expenditures, including expenditures described in Sections 705(a)(2)(B)
and 709(a) of the Code, shall be allocated for each fiscal year (or portion
thereof) between the Partners as follows:
(1) First, to the Partners with positive balances in
their Capital Accounts, to the extent of, and in proportion to, those positive
balances; and
(2) Second, to the Partners in accordance with their
Partnership Interests.
(c) Allocations of Profits Prior to Liquidation. Except as
otherwise provided in this Agreement, all Profits and tax-exempt income and gain
shall be allocated for each fiscal year (or portion thereof) between the
Partners as follows:
(1) First, to Partners having deficit balances in
their Capital Accounts to the extent of, and in proportion to, those deficits;
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(2) Second, to the Partners in accordance with their
Partnership Interests.
(d) Allocation of Gain or Loss Upon Liquidation.
Notwithstanding Section 3.3(b) and Section 3.3(c), gain or loss recognized upon
any sale, exchange, or other disposition of any assets of the Partnership
incident to the dissolution and termination of the Partnership shall be
allocated between the Partners so as to cause the credit balance in each
Partner's Capital Account to equal, as nearly as possible, the amount each
Partner would receive in a distribution on dissolution, if the distribution were
made in accordance with the Partners' intentions as described in Section 3.2(b).
(e) Section 704(o) and Similar Allocations. Gain or loss with
respect to any property contributed to the Partnership by a Partner shall be
allocated between the Partners, solely for tax purposes, in accordance with the
principles of Section 704(c) of the Code and the Treasury Regulations
promulgated thereunder, so as to take into account the variation, if any,
between the fair market value and the adjusted basis of such property at the
time of contribution. To the maximum extent permitted under Section 704(c) of
the Code and the Treasury Regulations promulgated thereunder, deductions
attributable to contributed property shall be allocated to the noncontributing
Partners based on the fair market value of such property at the time of
contribution, and all remaining deductions shall be allocated to the
contributing Partner.
SECTION 4 RIGHTS, POWERS, AND DUTIES OF THE PARTNERS.
4.1 General. UHF Investments, Inc. shall be the Managing Partner of the
Partnership. The Managing Partner shall have full and complete charge of all
affairs of the Partnership, and the management and control of the Partnership's
business shall rest exclusively with the Managing Partner.
4.2 Specific Rights, Powers, and Duties. The Managing Partner shall be
responsible for the management and operations of the Partnership and shall have
all powers necessary to manage and control the Partnership and to conduct its
business.
SECTION 5 TRANSFER OF PARTNERSHIP INTERESTS.
5.1 Transfers Prohibited. Subject to Section 6.2, the interest of a
Partner in the Partnership may not be assigned, transferred, or otherwise
disposed of except with the prior written consent of the other Partner.
SECTION 6 DISSOLUTION AND TERMINATION.
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6.1 Events of Dissolution. The Partnership shall dissolve upon the
earliest to occur of:
(a) an election to dissolve the Partnership made by the
Partners;
(b) the "Bankruptcy" (as defined in the Act) of the
Partnership or any Partner;
(c) the sale, exchange, or other disposition of all or
substantially all the assets of the Partnership;
(d) the happening of any event that, under the Act, causes the
dissolution of a partnership; or
(e) August 31, 2010.
6.2 Upon dissolution, the proceeds from the liquidation of Partnership
assets, after payment of the just debts and liabilities of the Partnership and
any expenses incurred in dissolving and winding up the Partnership, shall be
distributed to the Partners in accordance with their Partnership Interests.
6.3 Upon the dissolution, winding up, and termination of the
Partnership, no Partner shall be entitled to transact business for or in the
name of the Partnership, to represent itself as a Partner in the Partnership, or
to otherwise imply in any manner that the Partnership is still in existence.
6.4 Liquidation.
(a) Actions by Liquidator. Upon the dissolution and
termination of the Partnership, the Managing Partner shall act as liquidator to
wind up the Partnership. The liquidator shall have full power and authority to
sell, assign, and encumber any of the Partnership's assets and to wind up and
liquidate the affairs of the Partnership in an orderly and businesslike manner.
(b) Distribution of Proceeds. The proceeds of liquidation,
after payment of the debts and liabilities of the Partnership (including any
loans made by the Partners or any of their affiliates to the Partnership),
payment of the expenses of liquidation, and the establishment of any reserves
that the liquidator reasonably deems necessary for potential or contingent
liabilities of the Partnership, shall be distributed to the Partners as provided
in Section 3.2(b).
6.5 Effect of Withdrawal or Bankruptcy of Managing Partner. The
withdrawal or bankruptcy of the Managing Partner shall not
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alter the allocations and distributions to be made to the Partners pursuant to
this Agreement.
SECTION 7 AMENDMENTS TO AGREEMENT.
No amendment to this Agreement shall be effective unless evidenced by a
writing executed by both Partners. Any amendment made hereunder shall be
effective as of the date specified in the amendment.
SECTION 8 GENERAL TERMS.
8.1 Titles and Captions. All section or paragraph titles or captions
contained in this Agreement and the order of sections and paragraphs are for
convenience only and shall not be deemed part of this Agreement.
8.2 Further Action. The parties shall execute and deliver all
documents, provide all information and take all actions that are necessary or
appropriate to achieve the purposes of this Agreement.
8.3 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
8.4 Agreement Binding. This Agreement shall inure to the benefit of and
be binding upon the heirs, executors, administrators, successors and assigns of
the parties.
8.5 Separability of Provisions. Each provision of this Agreement shall
be considered separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this Agreement is
determined to be invalid or unenforceable, such invalidity or unenforceability
shall not impair the operation of or otherwise affect those provisions of this
Agreement which are valid.
8.6 Counterparts. This Agreement may be executed in several
counterparts and, as so executed, shall constitute one agreement, binding on all
the parties. Any counterpart of this Agreement or of any amendment, which has
attached to it separate signature pages, which altogether contain the signatures
of both Partners, shall for all purposes be deemed a fully executed instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
UHF INVESTMENTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
SILVER KING BROADCASTING OF MASSACHUSETTS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
____________________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Secretary
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Attachment A
SKMA BROADCASTING PARTNERSHIP
WHSH-TV Main Station License - Expires April 1, 1999
WHY-956 TV STL
▇▇▇-▇▇▇ ▇/▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇-▇▇▇ ▇/▇ Automatic Relay
R8-98152 R/P Mobile System
RB-98017 TV Pickup
RB-96013 R/P Mobile System
WLD-618 TV ICR