AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
OF
VIDEO 44
AN ILLINOIS GENERAL PARTNERSHIP
AMENDED AND RESTATED
PARTNERSHIP AGREEMENT
OF
VIDEO 44
AN ILLINOIS GENERAL PARTNERSHIP
This Amended and Restated Partnership Agreement ("Agreement") is made and
entered into as of this ___ day of _________, 199_, by and between Essaness
Theatres Corporation, a Delaware corporation ("ESSANESS"), Harriscope of
Chicago, Inc., an Illinois corporation (collectively with any wholly-owned
subsidiary, "HARRISCOPE"), and Telemundo of Chicago, Inc., a Delaware
corporation ("TELEMUNDO"). Essaness, Harriscope and Telemundo are each a
"PARTY" and a "PARTNER" and together they are the "PARTIES" or the "PARTNERS".
RECITALS
Essaness and Harriscope are parties to a joint venture agreement (the
"JOINT VENTURE AGREEMENT") among Essaness, Harriscope and National Subscription
Television of Chicago, Inc. ("NST") establishing a joint venture (the "JOINT
VENTURE") to own and operate television station WSNS-TV/Channel 44, Chicago,
Illinois (the "STATION").
Essaness holds a 25.5% interest in the Joint Venture, Harriscope holds a
50% interest in the Joint Venture and NST holds a 24.5% interest in the Joint
Venture. Immediately prior to entering into this Agreement, Telemundo has
purchased the interest of NST in the Joint Venture and all of the outstanding
capital stock of Harriscope, which has resulted in Telemundo holding, directly
or indirectly, an aggregate 74.5% interest in the Joint Venture.
Essaness, Harriscope and Telemundo are entering into this Agreement to set
forth the terms and conditions of their Joint Venture from and after the
acquisition by Telemundo of its direct and indirect interest in the Joint
Venture.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing Recitals and the terms
and conditions contained herein, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto hereby agree as follows:
1. DEFINITIONS
Certain terms used in this Agreement shall have the meaning set forth below
for each such term. In addition, certain other terms shall have the meaning for
each such term set forth elsewhere in this Agreement.
1.1 ACTUAL ESSANESS DISTRIBUTION. The amount obtained by multiplying the
Fractional Interest of Essaness by
Distributable Cash, subject to adjustment as follows: (a) if the amount of the
Minimum Essaness Distribution in any fiscal year exceeds the Actual Essaness
Distribution for such fiscal year (the cumulative amount of such excess, an
"OVERPAYMENT"), the Overpayment shall reduce Actual Essaness Distributions in
any subsequent year (or years) in which the Actual Essaness Distribution in such
fiscal year exceeds the Minimum Essaness Distribution in such fiscal year (the
cumulative amount of such excess, an "EXCESS"), but only to the extent of the
Excess in such fiscal year, provided that any then-existing Overpayment shall
not be considered a liability of Essaness to the Partnership or be deducted from
any purchase price for the Partnership Interest of Essaness pursuant to this
Agreement or upon liquidation of the Partnership; and (b) solely for purposes of
calculating any Overpayment, the guaranteed network compensation under the
Affiliation Agreement (as defined in Section 4.4) shall be deemed to have
increased by five percent (5%) per year (calculated as if the first year started
on the first day of the calendar month first succeeding the date hereof) in
arriving at Operating Income in the definition of Distributable Cash for such
year.
1.2 AFFILIATE. Any Person that directly, or through one or more
intermediaries, controls or is controlled by or is under common control with a
Partner; any Person that is an officer, director, partner, member or trustee of
or serves in a similar capacity with respect to a Partner; any partnership
(whether general or limited) or other entity (such as a joint venture,
corporation, limited liability company or trust) in which a Partner, directly or
indirectly, through one or more intermediaries, is a partner, principal,
shareholder, beneficiary, member or otherwise an owner, or with which a Partner
may merge or consolidate; or any Person acquiring all or substantially all
(which for purposes hereof shall be deemed to be at least sixty percent (60%))
of the assets of a Partner.
1.3 AND/OR. "AND/OR" means one or the other or both, or any one or more
or all, of the things or Persons in connection with which the conjunction is
used.
1.4 CAPITAL ACCOUNT. The capital account established and maintained for
each Partner under Section 3.1(c).
1.5 CAPITAL CONTRIBUTIONS. The cash and/or fair market value of property,
valued as of the date of contribution pursuant to the provisions of Section
1.704-1(b)(2)(iv)(d) of the Regulations, or any successor provision, contributed
to the capital of the Partnership by each Partner.
1.6 CODE. The Internal Revenue Code of 1986, as amended, or corresponding
provisions of subsequent, superseding federal revenue laws.
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1.7 COMPETITOR. A Person shall be a "competitor" if a non- de minimis
portion of such Person's business is involved in Spanish language television
broadcasting.
1.8 DEPRECIATION. For each fiscal year or other period, an amount equal
to the depreciation, amortization, or other cost recovery deduction allowable
with respect to an asset for such year or other period, except that if the Gross
Asset Value of an asset differs from its adjusted basis for Federal income tax
purposes at the beginning of such year or other period, Depreciation shall be an
amount which bears the same ratio to such beginning Gross Asset Value as the
Federal income tax depreciation, amortization, or other cost recovery deduction
for such year or other period bears to such beginning adjusted tax basis.
1.9 DESIGNATED REPRESENTATIVE OF ESSANESS. Xxxx Xxxxxxxxx and Xxxx
Xxxxxxxxx shall each be a Designated Representative of Essaness to act with
respect to the matters specified in Section 4.3. In the event Xxxx Xxxxxxxxx or
Xxxx Xxxxxxxxx is unable or unwilling to act, Essaness shall appoint another
person to be a Designated Representative of Essaness. If both Designated
Representatives are unavailable, Telemundo and Harriscope may notify and receive
consent from another person that Essaness designates in writing to the other
Partners.
1.10 DISTRIBUTABLE CASH. Distributable Cash for a fiscal year of the
Partnership shall mean: (i) Operating Income for such year; MINUS (ii) the
amount of capital expenditures for such year; PLUS or MINUS (iii) actual working
capital provided by or used during such fiscal year (including a cash reserve of
no more than $25,000); PLUS or MINUS (iv) actual other income or expense for
such fiscal year; provided, however, that no source or use of funds shall be
included or deducted more than once. In determining Distributable Cash for the
first fiscal year, the Partnership shall be deemed to have commenced on the date
hereof. Unless otherwise specified, all financial terms used herein shall be
used as defined in GAAP, consistently applied.
1.11 FRACTIONAL INTEREST. "FRACTIONAL INTEREST" is the interest of each
Partner in the Partnership as set forth in Section 3.1(a), subject to adjustment
as provided in Section 3.1(b).
1.12 GROSS ASSET VALUE. 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 jointly by the contributing Partner and the Partnership;
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b. The Gross Asset Values of all Partnership Property shall be adjusted
to equal their respective gross fair market values, as determined by
the Partners, as of the following times: (a) the acquisition of an
additional interest in the Partnership by any new or existing Partner
in exchange for more than a DE MINIMIS Capital Contribution; (b) the
distribution by the Partnership to a Partner of more than a DE MINIMIS
amount of Partnership Property including money, unless all Partners
receive simultaneous distributions of undivided interests in the
distributed Property in proportion to their interests in the
Partnership; and (c) the termination of the Partnership for Federal
income tax purposes pursuant to Code Section 708(b)(1)(B); and
c. If the Gross Asset Value of an asset has been determined or adjusted
pursuant to paragraph (a) or (b) hereof, such Gross Asset Value shall
thereafter be adjusted by the Depreciation taken into account with
respect to such asset for purposes of computing Profits and Losses.
1.13 MAJOR DECISIONS. Any decision or actions, specified in Section 4.3
that requires the approval of a Designated Representative of Essaness pursuant
to such Section.
1.14 MINIMUM ESSANESS DISTRIBUTION. The Minimum Essaness Distribution for
a fiscal year of the Partnership shall be $2.55 million (such $2.55 million
increasing by ten percent (10%) for each fiscal year (compounding annually)
subsequent to the 1996 fiscal year, and such $2.55 million pro rated for the
period from the time from the date of this Agreement until the end of the 1996
fiscal year) MINUS 25.5% of budgeted capital expenditures for such year. For
purposes of the preceding sentence, budgeted capital expenditures will equal
$300,000 during the 1996 fiscal year (pro rated for the period of time from the
date of this Agreement until the end of the 1996 fiscal year), and will equal
$300,000 increased by 10% per year (compounding annually) for each subsequent
fiscal year after the 1996 fiscal year.
1.15 OPERATING INCOME. Operating Income for a fiscal year shall mean the
net revenue attributable to the operations of the Station less all operating and
other expenses of the Station other than income taxes, depreciation and
amortization, all calculated in accordance with generally accepted accounting
principles consistently applied.
1.16 PARTNERSHIP. Video 44, formed as a general partnership under the laws
of the State.
1.17 PARTNERSHIP INTEREST. The entire ownership interest of any Partner in
any profits, losses or other rights and
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obligations of such Partner under the terms and provisions of this Agreement,
including, but not limited to, the Fractional Interests of the Partners.
1.18 PARTNERSHIP PROPERTY. All properties and other Partnership assets,
whether real, personal or intangible, or any interest therein, owned or acquired
by the Partnership.
1.19 PERMITTED TRANSFEREES. Those Persons to whom transfer of a
Partnership Interest is allowed without consent as provided in Section 6.2.
1.20 PERSON OR PERSONS. Individuals, partnerships, firms, associations,
limited liability companies, corporations, trusts, governmental agencies,
administrative tribunals or any other form of business or legal entity.
1.21 PROFITS AND LOSSES. For each fiscal year or other period, an amount
equal to the Partnership's taxable income or loss for such year or period,
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 703(a)(1) shall be included in taxable income or loss), with the
following adjustments:
a. Any income of the Partnership that is exempt from Federal income tax
and not otherwise taken into account in computing Profits or Losses
pursuant to this definition shall be added to such taxable income or
loss;
b. Any expenditures of the Partnership described in Code Section
705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Regulation Section 1.704-1(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits or Losses pursuant to this
definition shall be subtracted from such taxable income or loss;
c. Gain or loss resulting from any disposition of Partnership Property
with respect to which gain or loss is recognized for Federal income
tax purposes shall be computed by reference to the Gross Asset Value
of the property disposed of, notwithstanding that the adjusted tax
basis of such property differs from its Gross Asset Value; and
d. Notwithstanding any other provision of this Section 1.21, any items
which are specifically allocated pursuant to Section 5.9.b. or 5.9.c.
hereof shall not be taken into account in computing Profits or Losses.
The amounts of the items of Partnership income, gain, or deduction
available to be specially allocated pursuant to Section 5.9.b. or
5.9.c. hereof shall be determined by applying rules
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analogous to those set forth in Sections 1.21.a. through 1.21.c above.
1.22 STATE. The State of Illinois or such other state as may be designated
by Telemundo from time to time.
1.23 STATION. Television station WSNS-TV/Channel 44 which broadcasts in
the Chicago Dominant Market Area and all assets related thereto.
1.24 TGI. Telemundo Group, Inc., a Delaware corporation, its Affiliates
and any successors thereto.
1.25 TRANSFEROR. Any Partner desiring to make a transfer or encumbrance of
its Partnership Interest other than to an Affiliate or another Partner.
1.26 THIRD PARTY. Any person who is neither an Affiliate of a Partner nor
a Partner.
2. FORMATION; NAME; PURPOSES; PRINCIPAL PLACE OF BUSINESS; TERM
2.1 FORMATION AND NAME.
a. The Parties adopt this Amended and Restated Partnership Agreement and
agree to continue and operate the Partnership as a partnership for the
limited purposes and scope set forth in this Agreement. The
Partnership shall be governed by the Uniform Partnership Act of the
State, as from time to time amended (the "ACT"), except as expressly
provided herein to the contrary.
b. The name of the Partnership is Video 44, an Illinois general
partnership, and the business of the Partnership shall be conducted
solely under such name, and all assets of the Partnership shall be
held under such name.
c. The Partnership and the Partners shall promptly execute, file, record
and/or obtain all licenses, permits, certificates and authorizations
required in connection with the lawful existence of the Partnership as
a general partnership under the laws of the State and under the laws
of any other applicable jurisdiction.
2.2 PURPOSES AND SCOPE OF THE PARTNERSHIP. The sole and only purposes of
the Partnership are to (a) own and maintain, develop, manage, finance, and
operate the Station or any part thereof or interest therein, (b) to sell or
otherwise transfer or dispose of or mortgage or encumber the Station or any part
thereof or interest therein, when and to the extent expressly
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permitted by this Agreement or as otherwise agreed, (c) to develop the value of
the bandwidth licensed to the Partnership, and (d) engage in such other
activities as are reasonably incidental to the foregoing with respect to the
Station.
2.3 SCOPE OF PARTNERS' AUTHORITY. Except as otherwise expressly and
specifically provided in this Agreement, no Partner shall have any authority to
bind or act for, or assume any obligations or responsibility on behalf of, the
other Partners or the Partnership, and neither the Partnership nor any Partners
shall be responsible or liable for any indebtedness or obligation of the other
Partners or otherwise relating to the Station incurred or arising either before
or after the execution of this Agreement. This Agreement shall not be deemed to
create a general partnership between the Partners with respect to any activities
whatsoever other than activities within the scope of the business purposes of
the Partnership specified in Section 2.2.
2.4 PRINCIPAL PLACE OF BUSINESS. The principal place of business of the
Partnership shall be located at 000 X. Xxxxx Xxxxx, Xxxxxxx, Xx 00000.
2.5 TERM. The term of the Partnership shall be, unless sooner terminated
in accordance with other provisions of this Agreement, for so long as the
Partnership holds any interest in or has any obligations relating to the Station
or the proceeds derived therefrom, or until the Partners agree to its
termination; provided, however, that the Partnership shall, if not sooner
terminated, terminate on December 31, 2040 unless otherwise extended by mutual
written agreement of all Partners.
3. CAPITAL ACCOUNTS
3.1 PARTNERSHIP INTERESTS AND CAPITAL ACCOUNTS.
a. The Partners shall have the following initial undivided Fractional
Interests:
Harriscope 50.0%
Telemundo 24.5%
Essaness 25.5%
b. Unless otherwise agreed by all Partners or as otherwise provided for
in this Agreement, no adjustment to the Fractional Interest of any
Partner shall be made except as a result of a transfer of a Partner's
Partnership Interest.
c. Capital Accounts shall be maintained for each Partner and shall be
subject to adjustment as provided in Section 3.2. The Partners hereby
agree that the
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Partners' Capital Account balance as of the date hereof are:
Harriscope $30 million
Telemundo $14.7 million
Essaness $15.3 million
3.2 CAPITAL ACCOUNTS.
a. The Capital Accounts of each Partner shall from time to time be:
(1) increased by:
(i) additional Capital Contributions of such Partner (subject
to Section 8.2.e.); and
(ii) such Partner's share, pursuant to Section 5.9, of the
Profits of the Partnership; and
(iii) the amount of any Partnership liabilities assumed by such
Partner or which are secured by any property distributed
to such Partner.
(2) decreased by:
(i) all distributions to or for the account of such Partner;
(ii) such Partner's share of Losses of the Partnership during
the fiscal year, determined as provided in Section 5.9;
and
(iii) the amount of any liabilities of such Partner assumed by
the Partnership or which are secured by any property
contributed by such Partner to the Partnership.
In the event all or a portion of an interest in the Partnership is
transferred in accordance with the terms of this Agreement, the
transferee shall succeed to the Capital Account of the transferor to
the extent it relates to the transferred interest.
b. All Capital Accounts shall be maintained in accordance with Section
704(b) of the Code and Regulations thereunder, as may be amended from
time to time.
3.3 ADDITIONAL CAPITAL CONTRIBUTIONS. Except as otherwise provided in
this Agreement or pursuant to unanimous agreement of the Partners, no Partner
shall be obligated to
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make any Capital Contributions or advance any funds or provide any guarantees to
or on behalf of the Partnership. However, Telemundo and Harriscope shall be
entitled to make any additional Capital Contributions to the Joint Venture that
Telemundo or Harriscope deem necessary in their sole discretion but shall not
unless otherwise agreed to between the Partners have an effect on the Partners'
Fractional Interests. Any additional Capital Contributions made by Telemundo or
Harriscope pursuant to the preceding sentence shall be reflected in Harriscope's
or Telemundo's Capital Accounts pursuant to the provisions of Section
3.2.a.(1)(i) hereto. Telemundo and Harriscope's right to make additional
Capital Contributions to the Joint Venture for any fiscal year of the Joint
Venture shall in no way be limited by the fact that Telemundo or Harriscope
receive all or a portion of any distributions they are entitled to receive in
respect of such fiscal year (or any prior fiscal year) pursuant to Section
3.5.b.(2), Section 3.5.b.(4) or Section 3.5.b.(6) hereof. Unless otherwise
specified herein, no contribution of any Partner shall be deemed to constitute a
loan unless all of the Partners agree.
3.4 NO INTEREST ON CAPITAL. Interest earned on Partnership funds shall
inure solely to the benefit of the Partnership. No interest shall be paid upon
any Capital Contributions to the Partnership nor upon any undistributed or
reinvested income or profits of the Partnership.
3.5 DISTRIBUTIONS TO PARTNERS.
a. PRIORITY RETURN DISTRIBUTIONS.
(1) In respect of each month of each fiscal year of the
Partnership, the Partnership shall distribute to Essaness
1/12 of the Minimum Essaness Distribution for such year on
the first day of each month of such year, beginning on the
date hereof.
(2) If 25.5% of the budgeted capital expenditure used in
calculating the Minimum Essaness Distribution is greater
than the 25.5% of the actual capital expenditures for such
year, then the Partnership shall distribute to Essaness by
the fifteenth (15th) day after the receipt by the
Partnership of its audited financial statements cash equal
to such difference.
(3) To the extent that the Minimum Essaness Distribution for
the fiscal year exceeds the Actual Essaness Distribution
for such fiscal year (calculated for this purpose without
making any adjustments
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in respect of any current or past Overpayment), such
excess is intended to constitute a guaranteed payment
within the meaning of Code Section 707(c) and shall not be
treated as a distribution for purposes of computing
Essaness's Capital Accounts pursuant to Section 3.2.a.(2).
In the event that the Partnership is unable to make any
payments required to be made pursuant to Sections
3.5.a.(1) or 3.5.a.(2), Telemundo or Harriscope shall
promptly make additional Capital Contributions to the
Partnership sufficient to enable the Partnership to make
such payments on a timely basis.
b. DISTRIBUTIONS OF DISTRIBUTABLE CASH. Distributable Cash shall at
the following times and, in the following order of priority, be
distributed by the Partnership:
(1) First, in respect of each month of each fiscal year of the
Partnership, to make on the first day of such month, the
distributions required pursuant to Section 3.5.a.(1)
hereof.
(2) Second, in respect of each of the first eleven (11) months
of each fiscal year of the Partnership, to Telemundo and
Harriscope collectively, an amount of cash up to 2.922
multiplied by the distribution made to Essaness for such
month pursuant to Section 3.5.b.(1) (such amount to be
determined in the sole discretion of Telemundo) to be
distributed to Telemundo and Harriscope by the fifteenth
(15th) day after the end of each such month (such time of
such distribution to be determined in the sole discretion
of Telemundo). Any amounts that could have been
distributed to Telemundo and Harriscope pursuant to this
Section 3.5.b.(2) but which were not so distributed (due
to the exercise by Telemundo of its discretion or
otherwise) shall be distributed to Telemundo and
Harriscope pursuant to Section 3.5.b.(5) hereto.
(3) Third, in respect of each fiscal year of the Partnership,
to make (by the fifteenth (15th) day after the receipt by
the Partnership of its audited
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financial statements for the fiscal year) the
distributions required pursuant to Section 3.5.a.(2)
hereof.
(4) Fourth, in respect of each fiscal year of the Partnership,
to make (by the fifteenth (15th) day after the receipt by
the Partnership of its audited financial statements for
the fiscal year) to Telemundo and Harriscope,
collectively, an amount of up to the following amount: the
sum of (A) 2.922 multiplied by the aggregate amount
distributed to Essaness pursuant to Section 3.5.b.(3), and
(B) the aggregate amount of Overpayments for all past
fiscal years (reduced by the aggregate amount of
distributions made with respect to Overpayments pursuant
to this Section 3.5.b.(4)(B) for all prior fiscal years),
less the amount distributed to Telemundo and Harriscope
pursuant to Section 3.5.b.(2) for the fiscal year.
(5) Fifth, in respect of each fiscal year of the Partnership,
to make (by the fifteenth (15th) day after the receipt by
the Partnership of its audited financial statements for
the fiscal year) to Telemundo and Harriscope a
distribution of an amount up to the aggregate amount
distributable (whether or not actually paid to Harriscope
and Telemundo) to Telemundo and Harriscope pursuant to
Sections 3.5.b.(2) and 3.5.b.(4) (for the current and all
past fiscal years), less the aggregate amount actually
distributed (for the current and all past fiscal years) to
Telemundo and Harriscope pursuant to Section 3.5.b.(2),
Section 3.5.b.(4) and this Section 3.5.b.(5).
(6) Sixth, in respect of each fiscal year of the Partnership,
to pay, by the fifteenth (15th) day after the receipt by
the Partnership of its audited financial statements for
the fiscal year, Telemundo and Harriscope, an amount equal
to the excess, if any, of (A) the aggregate additional
Capital Contributions of Telemundo and Harriscope,
respectively, pursuant to Section 3.3 and Section
3.5.a.(3)
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hereof, over (B) the sum of all prior distributions to
Telemundo and Harriscope pursuant to this Section
3.5.b.(6).
(7) Seventh, the balance of Distributable Cash (the
"Balance"), if any, in respect of each fiscal year of the
Partnership, to be paid by the fifteenth (15th) day after
the receipt by the Partnership of its audited financial
statements for the fiscal year:
(A) to Essaness in an amount equal to the Balance
multiplied by the Fractional Interest of Essaness,
provided that the amount distributable to Essaness
pursuant to this Section 3.5.b.(7) for the fiscal year
shall not exceed 25.5 percent multiplied by Distributable
Cash for the fiscal year, less the sum of (A) the amount
of distributions for the fiscal year made with respect to
Overpayments pursuant to Section 3.5.b.(4)(B) hereto, and
(B) any amounts distributed to Essaness pursuant to
Section 3.5.b.(1) and Section 3.5.b.(3) for the fiscal
year, and
(B) to Telemundo and Harriscope any amounts of
Distributable Cash remaining after the distribution to
Essaness pursuant to Section 3.5.b.(7)(A). For purposes
of clarification, the Parties agree that the amount
distributable to Telemundo and Harriscope pursuant to this
Section 3.5.b.(7) for the fiscal year should not exceed
the sum of (i) 74.5 percent multiplied by Distributable
Cash for the fiscal year, (ii) the aggregate amount of
Overpayments for all past fiscal years (reduced by the
aggregate amount of distributions made with respect to
Overpayments pursuant to Section 3.5.b.(4)(B) hereto for
all prior fiscal years), and (iii) the aggregate amount
distributable to Telemundo and Harriscope pursuant to
Sections 3.5.b.(5) and Sections 3.5.b.(6) for the fiscal
year, less the aggregate amount actually distributed to
Telemundo and Harriscope for the fiscal year pursuant to
Sections 3.5.b.(2), 3.5.b.(4), 3.5.b.(5), and 3.5.b.(6).
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Notwithstanding anything to the contrary in this Section
3.5.b., if Essaness' Partnership Interest is transferred to any
person or entity pursuant to Section 6 other than to a Permitted
Transferee pursuant to Section 6.2, for purposes of applying the
provisions of this Section 3.5.b., the Partnership fiscal year
shall be deemed to end immediately prior to such Transfer and the
distributions contemplated in this Section 3.5.b. (including
distributions pursuant to Section 3.5.b.(3), (4), (5), (6), and
(7)) shall be made in respect of such fiscal year) to Essaness,
Harriscope, and Telemundo, as applicable (such distributions to
be made irregardless of whether there exists any audited
financial statements in respect of such fiscal year). For
purposes of applying Section 3.5.b., the fiscal year deemed to
end immediately prior to such transfer shall be treated as a
fiscal year for all purposes, including for purposes of
calculating Distributable Cash and Actual Essaness Distribution;
PROVIDED, HOWEVER, that all amounts and percentages used in
calculating Minimum Essaness Distribution shall generally be pro
rated to take into account the fact that the fiscal year in
question may be a short fiscal year.
c. DEFAULT INTEREST. If the Partnership fails to make any
distribution to Essaness pursuant to Section 3.5.b.(1) or
3.5.b.(3) within five (5) business days of receipt of written
notice of default from Essaness to the Partnership and Telemundo,
(i) the amount of the unpaid distributions shall bear interest at
an annual rate of 600 basis points above the prime rate of
interest described in the Wall Street Journal on each date during
the default period, compounded daily, but in no event more than
the maximum amount of interest permitted by law and (ii)
Telemundo and Harriscope shall indemnify Essaness and its
shareholders for any interest, penalties, attorney's fees or
other costs incurred as a consequence of the failure to meet
current tax liability in respect of amounts payable to Essaness
under Section 3.5.b.(1) or 3.5.b.(3) that the Partnership fails
to distribute to Essaness. If Essaness brings an action for
collection of any distributions, the prevailing party shall be
entitled to reasonable costs associated with enforcement,
including reasonable attorneys'
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and paralegal fees and court costs, including on appeal.
3.6 REDUCTION OF CAPITAL ACCOUNTS. Unless otherwise provided herein,
distributions to a Partner shall reduce the amount of such Partner's Capital
Account in accordance with Section 3.2, but no adjustment in the Fractional
Interest of any Partner shall be made on account of any such distribution.
3.7 WIRE TRANSFERS. The Partnership shall make all payments and
distributions pursuant to Sections 3.5 and 4.1.b. by wire transfer of
immediately available funds to an account specified in writing by the Partner
entitled to such payment or distribution.
4. MANAGEMENT; COMPENSATION; INDEMNIFICATION
4.1 MANAGEMENT OF THE PARTNERSHIP.
a. The overall management and control of the business and affairs of the
Partnership shall be vested exclusively in Telemundo; provided,
however, that the Major Decisions described in Section 4.3 shall
require the approval of one Designated Representative of Essaness.
All Major Decisions that are approved by Telemundo and a Designated
Representative of Essaness shall be binding on the Partnership and
each of the Partners.
b. So long as Essaness, together with its Permitted Transferees, holds a
Fractional Interest in the Partnership of at least 25.5%, Xxxx
Xxxxxxxxx shall be paid $10,000 per month in consideration for his
efforts as an independent consultant on behalf of the Partnership,
provided that such payments shall cease upon the death of Xxxx
Xxxxxxxxx. Xxxx Xxxxxxxxx shall only perform such services for the
Partnership as directed by the Partnership, and shall not be an
employee or agent of the Partnership. Xxxx Xxxxxxxxx shall have no
power to bind the Partnership, unless specifically authorized in
writing by Telemundo. Xxxx Xxxxxxxxx shall also be entitled to
reimbursement for reasonable travel and out-of-pocket expenses
incurred in connection with his services or duties to the Partnership,
upon presentation to the Partnership of proper vouchers evidencing
such expenses and detailing the purposes for which such expenses were
incurred, all in accordance with such procedures as the Partnership
shall specify. The Partnership may withhold from any such payments
all federal, state, city or other taxes as may be required pursuant to
any law or governmental regulation or ruling.
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c. Neither Telemundo nor Harriscope shall be entitled to a management or
other fee for services or duties to the Partnership, provided that
Telemundo and Harriscope shall be entitled to reimbursement for out-
of-pocket expenses incurred to third parties on behalf of the
Partnership.
4.2 DAY-TO-DAY MANAGEMENT. The day-to-day operations and business affairs
of the Station shall be managed by Telemundo. Certain duties may be delegated
by Telemundo to the general manager of the Station who shall be appointed
according to Section 4.3. If, and only if, after the filing of a voluntary
bankruptcy petition by TGI, Telemundo or Harriscope or the filing of an
involuntary bankruptcy petition that remains undismissed for sixty (60) days or
an assignment by TGI, Telemundo or Harriscope for the benefit of creditors,
Telemundo fails to pay the Minimum Essaness Distribution when due in accordance
with the provisions herein, subject to Telemundo's ability to cure such failure
within five (5) days, then, notwithstanding any other provisions of this
Agreement, Essaness shall have the right to manage the day-to-day operation of
the Station and Essaness shall succeed to the rights of Telemundo with respect
to management of the Partnership.
4.3 MAJOR DECISIONS. The following actions may not be undertaken, unless
and until the same has been approved by one Designated Representative of
Essaness (such approval will be deemed given if Designated Representatives shall
not have responded by the tenth (10) day after receipt of a written request for
approval has been sent to each of them; provided, that if a Major Decision with
respect to Section 4.3.c. is to be made, the Designated Representatives shall
have thirty (30) days to respond):
a. Employment of the person who shall serve as the general manager of the
Station; provided, that the Designated Representatives of Essaness
shall have the right collectively to disapprove only two candidates
for each proposed hiring of a general manager of the Station and
provided further that Telemundo shall have the right to set the terms
and conditions of employment of the general manager and to discharge
the incumbent general manager of the Station at any time on any terms
in its sole discretion;
b. Entering into any new collective bargaining agreement;
c. Selling all or substantially all of the assets of the Partnership;
d. Borrowing money, making loans or guarantees other than to the Partners
or their Affiliates, or
15
encumbering the assets of the Partnership other than in the ordinary
course of business or as otherwise specifically permitted by the terms
of this Agreement. In the event the Partnership desires to make any
loans or guarantees to any Partner or an Affiliate of any Partner,
such matter shall be submitted to the Affiliate Transaction Approval
Board (which shall be formed promptly after the execution of this
Agreement and shall consist of two (2) representatives appointed by
each Partner), and shall require the approval of a majority of those
members of the Affiliate Transaction Approval Board who have no direct
or indirect interest or affiliation with the proposed recipient of the
loan or the guarantee. Notwithstanding the foregoing, Telemundo may,
in connection with its direct or indirect acquisition of the interests
in the Joint Venture and all of the capital stock of Harriscope,
secure, or the Partnership may secure any or all of the indebtedness
for such acquisition with assets of the Partnership; provided that
such financing is obtained within one year of the effective date of
this Agreement, and provided that the principal amount of such
indebtedness so secured from time to time is not greater than
$22,500,000. The first lien shall provide (i) that Essaness shall be
given notice of any default under the obligations secured by such
first lien, and (ii) in the event of a default under the obligations
secured by such first lien, Essaness shall have the option to buy-out
the first lien-holder's interests for all amounts then due. At the
time of such secured financing, Telemundo (or the Partnership) shall
grant Essaness a second lien on such assets, subordinated to the
rights of first lienholders. If Telemundo or the Partnership grants a
security interest in the assets of the Station as permitted by this
Section, then upon (a) a foreclosure of the security interest, or (b)
the bankruptcy of Telemundo, Essaness shall have such rights and
remedies as may be available under law to foreclose upon Telemundo's
and Harriscope's interest in the Partnership;
e. Filing by the Partnership of a petition under any applicable federal
or state bankruptcy laws or the making an assignment for the benefit
of the Partnership's creditors; or
f. Any transaction or allocation of charge between the Partnership and
TGI except for (i) charges which do not exceed $10,000 in the
aggregate in any fiscal year, (ii) allocation of charges attributable
to operating the Station (such as insurance costs, but not production
costs) which shall be allocated to the Station in substantially the
same manner as TGI
16
allocates such charges to its owned and operated stations, (iii)
transactions permitted or contemplated by the Affiliation Agreement
and (iv) transactions and charges contemplated by this Agreement;
provided that Essaness shall be required to promptly cause to be given
its consent to any transaction or charge if the terms thereof are no
less favorable to the Partnership than would be available in a
comparable transaction in arms' length dealings with an unaffiliated
third party ("FAIR MARKET VALUE"). If Essaness disagrees that a
transaction or charge is at Fair Market Value, Essaness and Telemundo
shall negotiate in good faith for a reasonable period of time not
exceeding thirty (30) days to resolve their disagreement; if Essaness
and Telemundo cannot resolve their disagreement, the determination of
whether such transaction or charge is at Fair Market Value will be
submitted to an independent third party mutually agreed to by Essaness
and Telemundo, and the costs of such determination shall be paid for
by the Partnership. If Essaness and Telemundo cannot agree on an
independent third party, each of Essaness and Telemundo shall choose
an independent third party, and the two independent third parties so
chosen shall choose a third independent third party, to whom the
disagreement will be submitted. The determination of Fair Market
Value by the independent third party shall be final and binding on the
parties;
4.4 AFFILIATION AGREEMENT. The existing Network Affiliation and
Representation Agreement between the Joint Venture and TGI (the "AFFILIATION
AGREEMENT") with respect to the Station shall be extended for so long as
Essaness' Fractional Interest in the Partnership is 25.5% or more;
[Certain information has been omitted herein pursuant to a request for
confidential treatment pursuant to Rule 24b-2.]
Notwithstanding the foregoing, if Telemundo's and Harriscope's interests in the
Partnership are sold as permitted by Sections 6 or 7, TGI shall have the option
to (i) continue the Affiliation Agreement in accordance with its terms for a
period of one (1) year from the date of transfer, or (ii) terminate the
Affiliation Agreement immediately upon the effective date of the transfer.
4.5 REIMBURSEMENT OF PARTNERS. Except as provided in Section 4.1, or
permitted or approved pursuant to Section 4.3(f), no payment will be made by the
Partnership to any Partner or its Affiliates for the services provided by such
Partner or its Affiliates.
17
4.6 TIME DEVOTED TO PARTNERSHIP. The Partners shall each devote such time
to the Partnership as is reasonably necessary to carry out the provisions of
this Agreement.
4.7 OTHER BUSINESS ACTIVITIES; DISCLOSURE, WAIVER. Each of the Partners
understands that the other Partner or its Affiliates may be interested, directly
or indirectly, in various other businesses not included in the Partnership. The
Partners hereby agree that the continuation of the Partnership and the
assumption by each of the Partners of their duties hereunder shall be without
prejudice to their rights (or the rights of their Affiliates) to have such other
interests and activities and to receive and enjoy profits or compensation
therefrom; and each Partner waives any rights it might otherwise have to share
or participate in such other interests or activities of the other Partner or its
Affiliates. The Partners agree that their interests in other businesses and
activities and their rights to receive profits or compensation therefrom will
not be a breach of this Agreement or a violation of any fiduciary or other
obligations any Partner may owe to its other Partners or the Partnership. The
Partners and/or their Affiliates may engage in or possess any interest in any
other business of any nature or description independently or with others,
including, but not limited to, the ownership, financing, operation or management
of other television stations, and neither the Partnership nor the other Partner
shall have any right by virtue of this Agreement in and to such other businesses
or the income or profits derived therefrom. Each Partner shall give notice to
the other Partner of its interest, or the interest of any of its Affiliates, in
any other business or undertaking which proposes to enter into any business
transactions with the Partnership and no such business transactions shall be
entered into without the express written consent of the other Partners except as
set forth in Sections 4.1, 4.3 and 4.4.
4.8 SCOPE OF AUTHORITY. Essaness shall not, without the written consent of
the other Partners, take any action on behalf of or in the name of the
Partnership, or enter into any commitment or obligation binding upon the
Partnership.
4.9 INDEMNITY; CONTRIBUTION.
a. The Partnership shall indemnify, defend and hold the Partners and
Affiliates of each of them, harmless from any and all claims, causes
of action, losses, damages, liabilities, costs or expenses (including,
without limitation, reasonable attorneys' fees) incurred by any or all
of them at any time by reason of or arising out of any act performed
by any or all of them on behalf of the Partnership, or in furtherance
of its interests, and reasonably believed by the indemnified Partner
or Affiliate to be within the scope of authority specifically
conferred on such Partner by this Agreement, if any,
18
and not contrary to its terms. Except as otherwise specified herein,
the satisfaction of any indemnification hereunder shall be from and
limited to Partnership assets and no Partner shall have any personal
liability on account thereof. A Partner indemnified hereunder shall
notify the Partnership and the other Partners promptly of any claim,
demand, action or right of action made against it which is subject to
indemnification hereunder and provide the Partnership reasonable
opportunity to participate in the defense thereof in conformity with
the indemnity herein contained.
b. Each Partner shall indemnify, defend and hold the other Partner and
its Affiliates and the Partnership harmless from any and all claims,
causes of action, losses, damages, liabilities, costs or expenses
(including, but not limited to, reasonable attorneys' fees), incurred
by the other Partner, its Affiliates or the Partnership at any time by
reason of or arising out of any act of the indemnifying Partner
(whether taken by such Partner or on its behalf by its Affiliates),
which such Partner could not reasonably have believed to be within the
scope of the authority specifically conferred on such indemnifying
Partner by this Agreement, if any, or arising directly or indirectly
out of any breach of this Agreement by, or the gross negligence,
willful misconduct or fraud of, the indemnifying Partner. The
preceding sentence notwithstanding, no Partner shall be obligated to
indemnify the other Partners or the Partnership for any claims, causes
of action, losses, damages, liabilities, costs or expenses incurred by
the other Partners or the Partnership as a result of acts or omissions
of the other Partners which constitute gross negligence, willful
misconduct, or fraud.
c. The rights and obligations of the Partners and the Affiliates under
this Section 4.9 shall survive the termination of the Partnership. The
indemnities in favor of a Partner or an Affiliate contained in this
Section 4.9 shall extend to and benefit each representative of a
Partner or an Affiliate. An indemnified party may not settle any
action, proceeding or claim without the written consent of the
indemnifying party.
4.10 MEETINGS. The Partners may meet to discuss Partnership matters as and
when agreed to by all of them; provided, that at the request of any Partner, a
representative of Telemundo and a representative of Essaness shall meet
quarterly (it is agreed by the Partners that there is no obligation to meet more
than once a quarter). Meetings shall be held in Miami, Chicago or Los Angeles.
Telemundo shall
19
have the right to designate the place of the two meetings that the president or
other senior officer attends, and Essaness shall have the right to designate the
two other quarterly meetings. The president of TGI shall be the Telemundo
representative at a minimum (as determined by Telemundo) of two meetings per
fiscal year (if such meetings are held) or, if there is no Person holding the
title of President, then the most senior officer of TGI knowledgeable with the
Partnership business shall attend such two meetings.
5. ACCOUNTING AND TAXES
5.1 BOOKS AND RECORDS.
a. At all times during the term hereof, the Partnership shall cause
accurate books and records of account to be maintained in which shall
be entered all matters relating to the Partnership, including all
income, expenditures, assets and liabilities thereof.
b. Such books and records of account shall be maintained (on a consistent
basis starting as of the date hereof) in accordance with customary
accounting practices maintained for businesses similar to that of the
Partnership.
5.2 LOCATION AND RIGHTS OF INSPECTION. The Partnership's books and records
of account shall be kept and maintained at such place as Telemundo shall
designate; PROVIDED, that copies of such books and records shall be kept at the
Station. Each Partner and its authorized representatives shall have (i) full
and complete access to all information and personnel of the Station which shall
be provided to the requesting Partner on a timely basis and (ii) the right to
inspect, examine and copy the books, records, files and other documents and
information of the Partnership.
5.3 FISCAL YEAR. The fiscal year of the Partnership shall end on December
31 of each year.
5.4 FINANCIAL STATEMENTS. Each Partner shall receive (a) within 45 days of
the end of each month, monthly operating statements, and (b) within 60 days of
the end of each calendar quarter, quarterly operating statements, including
unaudited statements of operations, Partners' equity and cash flow for such
month and for the period from the beginning of such fiscal year to the end of
such month and an unaudited balance sheet of the Partnership, as of the close of
such month as prepared by management of the Partnership in the regular course of
business consistent with Telemundo's form for such statements. Each Partner
shall have full and complete access to all information and personnel of the
Station which shall be provided on a timely basis. Within 60 days after the end
of each of the first three quarters of each Fiscal Year,
20
Telemundo shall cause the Partnership to send to each Partner unaudited
statements of operations, Partners' equity and cash flows for such fiscal
quarter and for the period from the beginning of such Fiscal year to the end of
such fiscal quarter (including allocations to each Partner of its respective
portion of the Partnership's taxable income for such fiscal quarter as would be
reflected on the annual income tax returns of the Partnership and the financial
statements set forth in this Section), and an unaudited balance sheet (including
a breakdown of each Partner's Capital Account) as of the close of such fiscal
quarter. In addition, without limitation to the foregoing, Essaness shall be
entitled to receive all of the types of reports in respect of the Partnership
that Essaness had been receiving as of November 1, 1995, in such format as
regularly prepared by Telemundo for its owned and operated stations. As soon as
practicable after the end of each Fiscal Year ending on or after the date
hereof, but not later than April 1 in the following Fiscal Year, Telemundo shall
cause the Partnership to provide to each Partner audited statements of
operations, Partner's equity and cash flows, for such ended Fiscal Year, and an
audited balance sheet (including a breakdown of each Partner's Capital Account)
as of the close of such ended Fiscal Year, including appropriate notes to such
financial statements, audited by the Accountants, all of which shall be prepared
in accordance with GAAP. Subject to applicable securities and other laws, the
Parties agree to keep all information regarding the Partnership and the Station
confidential, and without limiting the foregoing, Essaness agrees to keep
confidential any non-public information regarding TGI that Essaness may become
aware through its association with TGI under the Partnership. The obligations
in the preceding sentence shall survive the termination of this Partnership
Agreement. Notwithstanding the foregoing, a party may disclose information
relating to the Partnership or the Station for legitimate reasons related to its
business, including disclosure to Lending institutions.
5.5 ACCOUNTANTS. The Partnership shall engage as independent auditors for
the Partnership a firm of independent certified public accountants approved by
Telemundo.
5.6 BANK ACCOUNTS. Funds of the Partnership shall be deposited in an
account or accounts in the Partnership's name in a bank or banks approved by
Telemundo.
5.7 TAX AND ACCOUNTING DECISIONS. All tax and accounting decisions for
the Partnership (other than those specifically provided for in this Agreement)
shall be determined by Telemundo; provided, however, if the Partners, based on
advice of their respective tax counsel or accountants, differ as to the
treatment or reporting of material items on the Partnership's income tax return,
the Partnership shall retain a third firm of tax counsel or accountants selected
jointly by the Partners to render its opinion regarding such items provided that
the final
21
determination of the treatment of such items shall be made by Telemundo;
provided further, one Designated Representative of Essaness shall have the right
to approve the election or adoption of a method of reporting or treatment of an
item (other than those specifically provided for in this Agreement and other
than as required by GAAP) that results in a tax benefit to Telemundo without a
corresponding tax benefit to Essaness, unless Telemundo reimburses Essaness for
any resulting increase in tax liability to Essaness (taking into account the
effect of delayed tax liability) than would result from a different position
proposed by Essaness. Telemundo shall, if such election is not already in
effect, cause the Partnership to make an election under Section 754 of the Code
(or any similar provision of any successor statute), on the first federal tax
return of the Partnership (which return shall be filed on a timely basis) after
Telemundo's admission as a Partner. Telemundo shall also make an election under
Section 754 of the Code (or any similar provision of any successor statute) on
any subsequent tax return of the Partnership in the event any prior Section 754
election becomes ineffective (as a consequence of a termination of the
Partnership pursuant to Section 708 of the Code or otherwise). In the future,
upon the request of any Partner, Telemundo shall, if such election is not
already in effect, cause the partnership to make an election under Section 754
to permit an adjustment of the income tax basis of such Partner's interest in
the Partnership's assets.
5.8 PREPARATION OF TAX RETURNS. Telemundo shall cause all required
Federal, state and local income tax returns of the Partnership to be prepared
on behalf of the Partnership.
5.9 ALLOCATION OF PROFITS AND LOSSES.
a. Except as otherwise provided in Section 5.9.b. and 5.9.c. below, the
Profits and Losses of the Partnership shall be allocated as follows:
(i) In a fiscal year in which Profits exceed Distributable
Cash, Profits shall (1) first be allocated to the extent
of and in proportion to the distributions of or rights to
Distributable Cash created under Section 3.5.b. for such
fiscal year (excluding any amounts treated as guaranteed
payments pursuant to Section 3.5.a.(3) or as a return of
additional Capital Contributions pursuant to Section
3.5.b.(6)) and (2) then be allocated to the Partners in
proportion to the Partners' Fractional Interests;
(ii) In a fiscal year in which Distributable Cash exceeds
Profits, Profits shall be allocated in proportion to the
22
distributions of or rights to Distributable Cash created
under Section 3.5.b. for such fiscal year (excluding any
amounts treated as guaranteed payments pursuant to Section
3.5.a.(3) or as a return of additional Capital
Contributions pursuant to Section 3.5.b.(6));
(iii) In a Fiscal Year in which there are Losses, the Losses
shall be allocated to the Partners in proportion to the
Partners' Fractional Interests.
b. Notwithstanding any other provisions of this Agreement, items of
Partnership income and gain, and Partnership profits (or items
thereof) shall be allocated to each Partner so as to satisfy the
"qualified income offset" and "minimum gain chargeback" requirements
contained in U.S. Treasury Regulations.
c. Solely for federal, state, and local income tax purposes and not for
book or Capital Account purposes, except to the extent required by
Regulations, depreciation, amortization, gain, or loss with respect to
property that is properly reflected on the Partnership's books at a
value that differs from its adjusted basis for federal income tax
purposes shall be allocated in accordance with the principles and
requirements of Code Section 704(c) and the Regulations promulgated
thereunder, and in accordance with the requirements of the relevant
provisions of the Regulations issued under Code Section 704(b). For
Capital Account purposes, depreciation, amortization, gain, or loss
with respect to property that is properly reflected on the
Partnership's books at a value that differs from its adjusted basis
for tax purposes shall be determined in accordance with the rules of
Regulation Section 1.704-1(b)(2)(iv)(g). The Parties agree that the
rules described above should apply so as to specially allocate to
Telemundo any additional depreciation, amortization and loss
attributable to a step-up in basis in Joint Venture assets arising as
a consequence of Telemundo's acquisition of its interest in the Joint
Venture.
5.10 ALLOCATIONS FOR PRE-CLOSING PERIOD. Profit and Loss for the
Partnership fiscal year that includes the date hereof shall be allocated among
the partners of the Joint Venture as if the date hereof were the last day of the
Joint Venture's fiscal year. Accordingly, Profit and Loss of the Joint Venture
for periods up to and including the date hereof shall be allocated among the
persons who were partners in the Joint
23
Venture prior to the date hereof and Profit and Loss of the Partnership for
periods after the date hereof shall be allocated among the Partners pursuant to
Section 5.9.
5.11 DEFINITIONS RELATED TO TAX MATTERS. For purposes of this Agreement,
the following terms are defined as set forth below:
a. "ADJUSTED CAPITAL ACCOUNT DEFICIT" means, with respect to any Partner,
the deficit balance, if any, in such Partner's Capital Account as of
the end of the relevant fiscal year, after giving effect to the
following adjustments:
(1) Such Capital Account is increased by any amounts which such
Partner is obligated to restore (pursuant to the terms of such
Partner's promissory note or otherwise) or is deemed to be
obligated to restore pursuant to the penultimate sentence of
Regulations Section 1.704-1(b)(4)(iv)(f) or would be deemed
obligated to restore if partner loan nonrecourse deductions were
treated as nonrecourse deductions; and
(2) Such Capital Account is decreased by the items described in
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and
1.704-1(b)(2)(ii)(d)(6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is
intended to comply with the provisions of Section 1.704-1(b)(2)(ii)(d)
of the Regulations and shall be interpreted consistently therewith.
b. "REGULATIONS" shall mean the Treasury Regulations promulgated under
the Code, as such Treasury Regulations shall be in effect from time to
time.
5.12 TAX MATTERS PARTNER. Telemundo shall act as the Tax Matters Partner,
as defined in Code Sections 6221 ET SEQ. of the Partnership for all purposes set
forth in the Tax Equity and Fiscal Responsibility Act of 1982 for which a tax
matter is designated. Prompt notice shall be given to each Partner upon
receipt of advice that the Internal Revenue Service intends to examine
Partnership income tax returns for any year.
6. SALE, TRANSFER OR MORTGAGE
6.1 GENERAL. Except as expressly permitted herein, no Partner shall
(directly or indirectly) sell, assign, transfer, mortgage, charge or otherwise
encumber, or suffer any third party to sell, assign, transfer, mortgage, charge
or otherwise
24
encumber, or contract to or permit any of the foregoing, whether voluntarily or
by operation of law (herein sometimes collectively called a "TRANSFER"), any
part or all of its Partnership Interest (including, without limitation, any
economic rights held by a Partner by virtue of being a Partner) without the
written approval of the other Partners, which approval may be withheld in the
sole discretion of the other Partners, and any attempt to transfer shall be
void, excluding only such transfers as permitted in Section 6.2, provided that
each of Telemundo and Harriscope may mortgage, charge or encumber their
Partnership Interests in a bona fide financing or similar transaction entered
into by TGI. Notwithstanding anything else contained herein to the contrary,
the definition of Transfer does not include any Transfer of the capital stock
of, or change of control in, the ownership of TGI. The giving of such consent
in any one or more instances shall not limit or waive the need for such consent
in any other or subsequent instances.
6.2 PERMITTED TRANSFERS. Subject to the conditions and restrictions set
forth in Section 6.3, a Partner may at any time Transfer all but not less than
all of such Partners' Interests to (a) any other Partner, (b) any member of the
transferor's Family, (c) the transferor's executor, administrator, trustee, or
personal representative to whom such Interests are transferred at death or
involuntarily by operation of law, or (d) TGI (any such Transfer described in
clauses (a) through (d) being a "PERMITTED TRANSFER" and the transferee being a
"PERMITTED TRANSFEREE"). For purposes hereof, an Partner's "FAMILY" shall
include only such Partner's spouse, blood-related siblings, natural or adoptive
lineal ancestors or descendants, and trusts for his or their exclusive benefit.
Permitted Transferees of Essaness may only Transfer Partnership Interests to
Persons who would be Permitted Transferees if Essaness were making the Transfer.
Essaness may transfer all of its Interests to another Person all of whose
economic and beneficial interests are owned by the current owners of Essaness
(or their Permitted Transferees).
6.3 CONDITIONS TO PERMITTED TRANSFERS. All Transfers are subject to the
following conditions:
a. If pursuant to the provisions of this Section 6, any Partner (a
"TRANSFEROR") shall Transfer its Partnership Interest or any portion
thereof to any Person (a "TRANSFEREE"), no such Transfer shall be made
or shall be effective to make such Transferee a Partner or entitle
such Transferee to any benefits or rights hereunder until the proposed
Transferee agrees in writing to (i) assume and be bound by all of the
terms and provisions of this Agreement and all of the obligations of
the Transferor, and (ii) be subject to all the restrictions to which
the Transferor is subject under the terms of this
25
Agreement and any further agreements with respect to the Partnership
property or as contemplated by this Agreement to which the Transferor
is then subject or is then required to be a party.
b. The Transferor and Transferee shall furnish the Partnership with the
Transferee's taxpayer identification number, sufficient information to
determine the Transferee's initial tax basis in the Interests
transferred, and any other information reasonably necessary to permit
the Partnership to file all required federal and state tax returns and
other legally required information statements
or returns. Without limiting the generality of the foregoing, the
Partnership shall not be required to make any distribution otherwise
provided for in this Agreement with respect to any transferred
Interests until it has received such information.
c. Except in accordance with a Transfer in accordance with Section 7,
neither any direct or indirect interest in Essaness nor Essaness'
Partnership Interest shall be Transferred (directly or indirectly) to
any Person who is a Competitor of TGI.
6.4 ADVANCE NOTICE OF PERMITTED TRANSFER. Notwithstanding any provision
hereof permitting the Transfer of all or any portion of a Partner's interest in
the Partnership, no such Transfer shall be made unless the Partner proposing to
make such Transfer gives notice thereof to each other Partner at least ten (10)
Business Days prior to the effective date of such proposed Transfer. For
purposes hereof, a notice shall be in writing, shall state the identity of the
proposed Transferee, shall describe with particularity the nature of the
proposed Transfer and the terms thereof, and shall identify the provision of
this Agreement under which such Partner believes that the proposed Transfer is
permitted.
6.5 RIGHT OF FIRST REFUSAL. In addition to the other limitations and
restrictions set forth in this Section, except for Permitted Transfers pursuant
to Section 6.2 and as permitted by Section 7 hereof, no Transferor shall
Transfer such Partner's Partnership Interest (including all interests
transferred to Permitted Transferees) (the "OFFERED INTEREST") unless the
Transferor first offers to sell the Offered Interest pursuant to the terms of
this Section 6.5. Except for Permitted Transfers, Partners may only Transfer
all of their Partnership Interest.
a. No Transfer may be made under this Section unless the Transferor has
received a bona fide written offer (the "PURCHASE OFFER") from a
person (the "PURCHASER") to purchase the Offered Interest for a
purchase price (the "OFFER PRICE") denominated and
26
payable in United States dollars at closing or according to specified
terms, with or without interest, which offer shall be in writing
signed by the Purchaser and shall be irrevocable for a period ending
no sooner than the day following the end of the Offer Period, as
hereinafter defined.
b. Prior to making any Transfer that is subject to the terms of this
Section, the Transferor shall give to the Partnership and each
Partner, written notice (the "OFFER NOTICE") which shall include the
following: (1) the identity of the Purchaser; (2) a copy of the
Purchase Offer; (3) a statement signed by the Purchaser to the effect
that, upon purchase of the Offered Interest, the Purchaser agrees to
become a Partner, to be bound by all of the terms and conditions of
this Agreement as a Partner with respect to the Offered Interest, and
to execute such documents and instruments as the remaining Partners
deem necessary or appropriate to confirm such agreements; and (4) an
offer (the "FIRM OFFER") to sell the Offered Interest to the other
Partners (the "OFFEREES") for the Offer Price, payable according to
the same terms as (or more favorable terms than) those contained in
the Purchase Offer.
c. The Firm Offer shall be irrevocable for a period (the "OFFER PERIOD")
ending at 11:59 P.M., local time at the Partnership's principal place
of business, on the sixtieth (60th) day following the day of the Offer
Notice.
d. At any time during the Offer Period, any Offeree may accept the Firm
Offer as to all or any portion of the Offered Interest by giving
written notice of such acceptance to the Transferor and each other
Offeree (an "ACCEPTANCE") which notice shall indicate the maximum
portion of the Offered Interest that such Offeree is willing to
purchase. If Offerees ("ACCEPTING OFFEREES"), in the aggregate,
accept the Firm Offer with respect to all, or more than all, of the
Offered Interest during the Offer Period, the Firm Offer shall be
deemed to be accepted. If the Accepting Offerees accept the Firm
Offer with respect to more than all of the Offered Interest, each
Accepting Offeree shall be deemed to have accepted the Firm Offer with
respect to that portion of the Offered Interest that corresponds to
the ratio of the Offered Interests that such Accepting Offeree
indicated a willingness to purchase to the aggregate Offered Interests
that all Accepting Offerees indicated a willingness to purchase. If
Offerees do not accept the Firm Offer as to all, or more than all, of
the Offered
27
Interests during the Offer Period, the Firm Offer shall be deemed to
be rejected in its entirety.
e. If the Firm Offer is accepted, the closing of the sale of the Offered
Interest shall take place within ten (10) Business Days from the
effective date on which an FCC Order of the Federal Communications
Commission ("FCC") approving the transfer of the Offered Interests to
the Accepting Offerees becomes a Final Order (the "CLOSING DATE").
For purposes of this Agreement, (a) an "FCC ORDER" means an order of
the FCC, or of the Mass Media Bureau acting under delegated authority,
approving the transfer of the Offered Interests to the Accepting
Offerees in accordance with this Agreement, without conditions that in
the Accepting Offerees' judgment (i) are materially adverse to the
Accepting Offerees, (ii) in any way materially diminish the Accepting
Offerees operating rights with respect to the Station, or (iii)
materially diminish the value of the Station to the Accepting
Offerees, except any such condition expressly accepted by the
Accepting Offerees in writing, and (b) a "FINAL ORDER" means an FCC
Order that is no longer subject to judicial, administrative or any
other review; provided that, at the Accepting Offerees sole option,
the Closing may take place following the issuance of an FCC Order
approving the transfer of the Offered Interests to the Accepting
Offerees but before a Final Order. The Accepting Offerees acceptance
of a Transferors' Firm Offer shall only be effective if in the
aggregate the Accepting Offerees pay the Transferor five (5) percent
of the Offer Price (the "Deposit") within the Offer Period. The
Deposit shall be retained by such Party if for any reason the closing
fails to occur other than due to circumstances outside the control of
the Accepting Offerees. If the closing of the purchase by the
Accepting Offerees of the Transferor's interest does occur, the
Deposit shall be applied in parties payment of the Offer Price. The
Transferor and all Accepting Offerees shall execute such documents and
instruments as may be necessary or appropriate to effect the sale of
the Offered Interest pursuant to the terms of the Firm Offer and this
Section.
f. If the Firm Offer is not accepted in the manner hereinabove provided,
the Transferor may sell the Offered Interest to the Purchaser at any
time after the last day of the Offer Period, provided that such sale
(i) shall be made on terms no more favorable to the Purchaser than the
terms contained in the Purchase Offer and provided further that such
sale complies with the other terms, conditions, and restrictions of
this Agreement that are applicable
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to sales of Interests and are not expressly made inapplicable to sales
occurring under this Section, and (ii) must be completed within one
hundred twenty (120) days after the last day of the Offer Period. In
the event that the Offered Interest is not sold in accordance with the
terms of the preceding sentence, the Offered Interest shall again
become subject to all of the conditions and restrictions of this
Section.
6.6 WITHDRAWAL. Any provision of the laws of the State notwithstanding,
each Partner hereby covenants and agrees that all the Partners will continue as
Partners and carry out the duties and obligations undertaken by them hereunder
and that, except as otherwise expressly required or permitted hereby, no Partner
shall withdraw or retire from the Partnership, be entitled to demand or receive
a return of such Partner's contributions or profits (or a bond or other security
for the return of such contributions or profits), or exercise any power under
the Act to dissolve the Partnership other than pursuant to the terms of this
Agreement.
6.7 TRANSFERS IN VIOLATION OF THE AGREEMENT. Any Transfer or purported
Transfer of any Partnership Interest or the interests in Essaness (directly or
indirectly other than to Permitted Transferees) shall be null and void for all
purposes if made in violation of this Agreement. Subject to the proviso
contained in the first sentence of Section 6.1 with respect to bona fide
financing and subject to the second sentence of Section 6.1, Transfers of the
interests in Telemundo and Harriscope shall be null and void for all purposes if
made in violation of this Agreement.
6.8 REMEDIES. If any Partner shall at any time Transfer or attempt to
Transfer its Partnership Interest in violation of the provisions of this
Agreement and any rights hereby granted then the other Partner shall, in
addition to the rights and remedies at law and in equity, be entitled to a
decree or order restraining and enjoining such Transfer, and the offering
Partner shall not plead in defense thereto that there would be an adequate
remedy at law; it being hereby expressly acknowledged and agreed that the non-
transferring Partners will suffer irreparable injury for which there is no
adequate remedy at law for a breach or threatened breach or violation of the
provisions concerning Transfers set forth in this Agreement.
6.9 TERMINATION OF CERTAIN RIGHTS. If Essaness' Partnership Interest is
transferred to any person or entity pursuant to this Section 6 other than to a
Permitted Transferee pursuant to Section 6.2., the provisions of Sections 3.5,
4.1.b., 4.3.a., 4.3.b., 4.4., the second to last sentence of Section 5.4, and
the last proviso of the first sentence of Section 5.7 shall terminate effective
upon such Transfer, except that the right of Telemundo and Harriscope to
29
receive distributions of prior capital contributions pursuant to Section
3.5.b.(6) shall survive the Transfer such that Telemundo will receive such
distributions as a priority distribution over payments to any transferee of
Essaness' Partnership Interest.
7. BUY-SELL PROVISIONS
7.1 TELEMUNDO BUY-SELL.
a. OFFER NOTICE. Beginning at any time on or after the date fifty four
(54) months after the effective date of this Agreement, Telemundo or
its nominee shall have the right to notify Essaness or its Permitted
Transferees in writing (the "OFFER NOTICE") that Telemundo desires to
purchase all, but not less than all, of the Partnership Interest owned
by Essaness and its Permitted Transferees (the "ESSANESS INTERESTS")
for cash at such price and on such other terms as Telemundo may set
forth in such Offer Notice. Upon Telemundo issuing an Offer Notice,
the parties shall engage in good faith negotiations for a reasonable
period of time for a purchase of the Essaness Interests by Telemundo
in accordance with the terms of the offer notice.
b. TELEMUNDO BUY-SELL RIGHT. If the parties in good faith cannot reach
agreement on a negotiated sale of the Essaness Interests within such
reasonable period, Telemundo shall have the right, exercisable on or
after the date that is fifty-eight (58) months after the effective
date of this Agreement, to make a formal written offer (the "FORMAL
OFFER") to purchase all but not less than all of the Essaness
Interests, which Formal Offer shall set forth the price (including the
total valuation of the Partnership upon which the purchase price is
based) and the other material terms of the proposed purchase.
c. ESSANESS OPTION. Upon receipt of a Formal Offer from Telemundo,
Essaness shall have until the later of (a) sixty (60) days from the
date of receipt of the Formal Offer and (b) one hundred eighty days
(180) from the date of receipt of the Offer Notice to either (i)
accept Telemundo's Formal Offer in accordance with its terms, or (ii)
present in writing a bona fide counteroffer from a Third Party (in
which Essaness may have a minority interest and which may be a
Competitor) (the "COUNTEROFFER") to purchase all but not less than all
of the Partnership Interest owned by Telemundo and Harriscope and
their Permitted Transferees (the "TELEMUNDO INTERESTS"). The terms of
the
30
Counteroffer must be no less favorable to the seller than the Formal
Offer and must include a purchase price based on a total valuation of
the Partnership that is greater than the valuation contained in the
Formal Offer.
d. TELEMUNDO OPTION. If Essaness presents a timely Counteroffer,
Telemundo will have ten (10) calendar days to respond to the
Counteroffer in writing by either (a) accepting the Counteroffer in
accordance with its terms, or (b) notifying Essaness in writing that
Telemundo will purchase the Essaness Interests at a price based on the
total valuation of the Partnership set forth in the Counteroffer, and
on economic terms no less favorable to Essaness than the terms
contained in the Counteroffer, in which case Essaness shall sell the
Essaness Interest to Telemundo at such price and on such terms.
Telemundo will be deemed to have accepted the Counteroffer if it does
not respond to the Counteroffer within the ten (10) calendar days set
forth above.
7.2 ESSANESS BUY-SELL.
a. OFFER NOTICE. Beginning at any time on or after the date seventy two
(72) months after the effective date of this Agreement, Essaness or
its nominee shall have the right to send an Offer Notice to Telemundo
or its Permitted Transferees that Essaness desires to purchase all,
but not less than all, of the Partnership Interest owned by Telemundo
and Harriscope or their Permitted Transferees (the "TELEMUNDO
INTERESTS") for cash at such price and on such other terms as Essaness
may set forth in such Offer Notice. Upon Essaness issuing an Offer
Notice, the parties shall engage in good faith negotiations for a
reasonable period of time (not to be less than 30 days) for a purchase
of the Telemundo Interests by Essaness in accordance with the terms of
the offer notice.
b. ESSANESS BUY-SELL RIGHT. If the parties in good faith cannot reach
agreement on a negotiated sale of the Telemundo Interests within such
reasonable period, Essaness shall have the right, exercisable on or
after the date that is seventy-six (76) months after the effective
date of this Agreement, to make a Formal Offer to purchase all but not
less than all of the Telemundo Interests, which Formal Offer shall set
forth the price (including the total valuation of the Partnership upon
which the purchase price is based) and the other material terms of the
proposed purchase.
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c. TELEMUNDO OPTION. Upon receipt of a Formal Offer from Essaness,
Telemundo shall have until the later of (a) sixty (60) days from the
date of receipt of the Formal Offer and (b) one hundred eighty days
(180) from the date of receipt of the Offer Notice to either (i)
accept Essaness' Formal Offer in accordance with its terms, or (ii)
present in writing a bona fide counteroffer to purchase all but not
less than all of the Essaness Interests. The terms of the
Counteroffer must be no less favorable to the seller than the Formal
Offer and must include a purchase price based on a total valuation of
the Partnership that is greater than the valuation contained in the
Formal Offer. If Telemundo presents a counteroffer, Essaness shall
sell all of the Essaness Interests to Telemundo or its designee
pursuant to the terms of 7.3.
7.3 CLOSING. The closing of the purchase and sale of Interests pursuant
to this Section 7 shall take place within ten (10) Business Days after an FCC
Order approving the transfer of the Essaness Interests or the Telemundo
Interests, as appropriate, becomes a Final Order.
8. DISSOLUTION AND LIQUIDATION
8.1 CAUSES OF DISSOLUTION. The Partnership shall be dissolved only upon
the happening of any of the following events:
a. The Partners mutually agree to terminate the Partnership; or
b. The bankruptcy of Telemundo.
c. The Partnership ceases to maintain an interest (which term shall
include but not be limited to a security interest) in the Station and
the proceeds derived therefrom; or
d. The Partnership by its terms, as set forth in this Agreement, is
terminated.
8.2 PROCEDURE IN DISSOLUTION AND LIQUIDATION.
a. Upon dissolution of the Partnership pursuant to Section 8.1, the
Partnership shall immediately commence to wind up its affairs, and the
Partners shall proceed with reasonable promptness to liquidate the
business of the Partnership.
b. During the period of the winding up of the affairs of the Partnership,
the rights and obligations of
32
the Partners set forth herein with respect to the management of the
Partnership shall continue.
c. The assets of the Partnership shall be applied or distributed in
liquidation in the following order or priority; provided, however,
that, except for the indemnities set forth in Section 4.10, no Partner
shall be liable to the other for any negative balance in its Capital
Account:
(1) In payment of other debts and obligations of the Partnership owed
to Third Parties;
(2) In payment of debts and obligations of the Partnership to any
Partner;
(3) To Telemundo and Harriscope until the aggregate distributions to
Telemundo and Harriscope pursuant to this Section 8.2 and Section
3.5.b.(6) hereof are equal to the aggregate additional Capital
Contributions of Telemundo and Harriscope pursuant to Section 3.3
hereto.
(4) To the Partners in proportion to their Positive Capital Accounts
as of the date of such distribution, after giving effect to all
contributions, distributions and allocations for all periods; and
(5) To the Partners in accordance with Section 3.1.a.
d. Every reasonable effort shall be made to dispose of the assets of the
Partnership so that the distribution may be made to the Partners in
cash. Any distribution of property in kind shall be considered cash in
an amount equal to its fair market value, net of liabilities
encumbering the same, at the time of its distribution.
e. If Telemundo or Harriscope makes Capital Contributions to the
Partnership pursuant to Section 3.3 hereto for purposes OTHER THAN to
fund capital expenditures related to the operation of the Station
(capital expenditures include, but are not limited to equipment
replacement), Partnership operations, or meeting the Minimum
Distribution requirements (herein "Excess Capital Contributions"),
then, UNLESS ESSANESS APPROVES in writing of such Excess Capital
Contributions, such amounts will not be considered Capital
Contributions for purposes of this Agreement; provided, such
unapproved Excess Capital Contributions will be considered Capital
Contributions for purposes of these liquidation provisions only. The
Parties hereby confirm that
33
any additional Capital Contributions not approved by Essaness will not
be included in the Capital Accounts of the Partners in the event of a
sale between Essaness (or any Affiliate of Essaness) and TGI of their
interests in the Partnership (i.e., for example, the amount of such
unapproved additional Capital Contributions may not be deducted by
Telemundo from any purchase price it would otherwise pay to Essaness
in the event of a buy-out).
8.3 DISPOSITION OF DOCUMENTS AND RECORDS. All documents and records of
the Partnership, including, without limitation, all financial records, vouchers,
canceled checks and bank statements, shall be delivered to Telemundo upon
termination of the Partnership. Telemundo shall retain such documents and
records for a period of not less than seven (7) years and shall make such
documents and records available during normal business hours to the other
Partner for inspection and copying at the other Partner's cost and expense.
9. GENERAL PROVISIONS
9.1 ENTIRE AGREEMENT. This Agreement supersedes all oral and prior
written agreements, representations, warranties, statements, promises and
understandings with respect to the subject matter hereof, and none of the
parties hereto shall be bound by nor charged with any oral or prior written
agreements, representations, warranties, statements, promises or understandings
not specifically set forth in this Agreement or the exhibits hereto. This
Agreement may not be amended, altered or modified except by a writing signed by
all the Partners.
9.2 NOTICES.
a. All notices under this Agreement shall be in writing and shall be sent
by facsimile, hand delivered by recognized courier service or mailed
by certified registered U.S. first class mail, postage prepaid, return
receipt requested, to the Partners at the addresses herein set forth
or changed pursuant to Section 9.2.c and to the Partnership at its
principal place of business.
The addresses for notices are as follows:
To the Partnership:
Video 44
an Illinois General Partnership
000 Xxxx Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: General Manager
Facsimile No.: (000) 000-0000
34
With a copy to:
Xxxx Xxxxxxxxx
00000 Xxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Telemundo Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Facsimile No.: (000) 000-0000
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
To Essaness:
Essaness Theatres Corporation
c/o Xxxx Xxxxxxxxx
00000 Xxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxx & Xxxxxx, Ltd.
00 X. Xxxxxx
00xx Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Xxxxx Xxxxxxxxx
00000 Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (708) 720 - 9456
To Telemundo or Harriscope:
Telemundo Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Chief Financial Officer
Facsimile No.: (000) 000-0000
35
With a copy to:
Telemundo Group, Inc.
0000 Xxxx 0xx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Legal Department
Facsimile No.: (000) 000-0000
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
To Xxxx Xxxxxxxxx:
Xxxx Xxxxxxxxx
00000 Xxx Xxxxxxx
Xxxx Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
To Xxxx Xxxxxxxxx:
000 Xxxx Xxxxxxx
Xxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
b. All notices, demands, and requests shall be deemed received and
effective upon delivery in the case of facsimile or hand delivery and
three (3) Business Days after mailing in the case of delivery by mail.
However, rejection or other refusal to accept or the inability to
deliver because of changed address of which no notice was given as
provided in Section 9.2.c. shall be deemed to be effective upon
receipt of the notice, demand or request.
c. By giving to the other parties at least ten (10) days written notice
thereof, the parties hereto and their respective permitted successors
and assigns shall have the right from time to time and at any time
during the term of this Agreement to change their respective addresses
for notices, and each shall have the right to specify as its or his
address for notices any other address within the United States of
America.
9.3 ATTORNEYS' FEES. Should any litigation or other adversarial
proceeding be commenced between the parties hereto or their representatives, or
should any party institute any proceeding in a bankruptcy or similar court which
has jurisdiction over any other party hereto or any or all of his or its
property or assets concerning any provision of this Agreement or the rights and
duties of any person or entity in relation thereto, the party or parties
prevailing in such
36
litigation or proceeding shall be entitled, in addition to such other relief as
may be granted, to a reasonable sum as and for its or their attorneys' and
paralegal fees and court costs in such litigation or proceeding which shall be
determined by the court in such litigation or proceeding or in a separate action
brought for that purpose.
9.4 VALIDITY. In the event that any provision of this Agreement shall be
held to be invalid or unenforceable, the same shall not affect in any respect
whatsoever the validity or enforceability of the remainder of this Agreement.
9.5 SURVIVAL OF RIGHTS. Except as provided herein to the contrary, this
Agreement shall be binding upon and inure to the benefit of the parties
signatory hereto, their respective heirs, executors, legal representatives and
permitted successors and assigns.
9.6 NO STRICT CONSTRUCTION. The parties hereto jointly participated in
the negotiation and drafting of this Agreement and the other agreements
contemplated hereby. The language used in this Agreement will be deemed to be
the language chosen by the Parties hereto to express their collective mutual
intent. This Agreement shall be construed as if drafted jointly by the Parties
hereto, and no rule of strict construction will be applied against any person.
9.7 GOVERNING LAW. This Agreement has been entered into in the State, and
all questions with respect to this Agreement and the rights and liabilities of
the parties hereto shall be governed by the laws of the State.
9.8 NO PARTITION. No Partner shall have the right and each Partner hereby
agrees not to withdraw from the Partnership, bring any action to partition the
Partnership's property, nor to dissolve, terminate or liquidate, or to petition
a court for the dissolution, termination, or liquidation of the Partnership,
except as provided in this Agreement, and no Partner at any time shall have the
right to petition or to take any action to subject the Partnership's property or
any part thereof or the Partnership assets or any part thereof to the authority
of any court of bankruptcy, insolvency, receivership or similar proceeding,
unless there is unanimous consent of the Partners.
9.9 WAIVER. No consent or waiver, express or implied, by a Partner to or
of any breach or default by any other Partners in the performance by such other
Partners of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance by
such other Partners of the same or any other obligations of such other Partners
hereunder. Failure on the part of a Partner to complain of any act or failure to
act of any other Partners or to declare any other Partners in default,
irrespective of how long such failure continues,
37
shall not constitute a waiver by such Partner in any one instance and shall not
limit or waive the necessity to obtain such Partner's consent in any further
instance.
9.10 REMEDIES IN EQUITY. The rights and remedies of any of the Partners
hereunder shall not be mutually exclusive, I.E., the exercise of one or more of
the provisions hereof shall not preclude the exercise of any other provisions
hereof. Each of the Partners confirms that irreparable injury will occur for
which there is not an adequate remedy at law for a breach or threatened breach
of this Agreement and agree that, in the event of a breach or threatened breach
of any provisions hereof, the respective rights and obligations hereunder shall
be enforceable by specific performance, injunction or other equitable remedy,
but nothing herein contained is intended to, nor shall it, limit or affect any
rights at law or by statute or otherwise of any party aggrieved as against the
other for a breach or threatened breach of any provision hereof, it being the
intention by this Section to make clear the agreement of the Partners that the
respective rights and obligations of the Partners hereunder shall be enforceable
in equity as well as at law or otherwise.
9.11 TERMINOLOGY. All personal pronouns used in this Agreement, whether
used in the masculine, feminine or neuter gender, shall include all other
genders; and the singular shall include the plural and vice versa. Titles of
Sections and Subsections are for convenience only, and neither limit nor amplify
the provisions of this Agreement itself. References to Sections or Subsections
shall refer to Sections or Subsections of this Agreement. Any exhibits referred
to herein are those attached hereto and shall be deemed incorporated as a part
of this Agreement. The use herein of the word "including", when following any
general statement, term or matter, shall not be construed to limit such
statement, term or matter to the specific items or matters set forth immediately
following such word or to similar items or matters, whether or not nonlimiting
language (such as "without limitation," or "but not limited to", rather shall be
deemed to refer to all other items or matters that could reasonably fall within
the broadest possible scope of such general statement, term or matter.
9.12 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
shall constitute one and the same agreement.
9.13 FURTHER ASSURANCES. Each Party hereto agrees to do all acts and things
and to make, execute and deliver such written instruments, as shall from time to
time be reasonably required to carry out the terms and provisions of this
Agreement.
38
9.14 ARBITRATION. Except where a Partner is seeking an injunction or
specific performance hereunder, the Partners agree that any controversy between
the Partners involving the construction or application of any term, covenants,
or condition of this Agreement shall be submitted to arbitration on the request
of any Partner, and the arbitration will comply with and be governed by the
rules and procedures of the American Arbitration Association.
39
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the day
and year first above set forth.
TELEMUNDO OF CHICAGO, INC.
By:___________________________________
Name:
Title:
HARRISCOPE OF CHICAGO, INC.
By:____________________________________
Name:
Title:
ESSANESS THEATRES CORPORATION
OF ILLINOIS
By:____________________________________
Name:
Title:
40
