AMENDMENT NO. 1
TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF
ML MEDIA OPPORTUNITY PARTNERS, L.P.
This Amendment No. 1, dated as of March 24, 1997 (this
"Amendment"), to Amended and Restated Agreement of Limited
Partnership of ML Media Opportunity Partners, L.P., dated as of
March 23, 1988 (the "Limited Partnership Agreement"), is entered
into by and among Media Opportunity Management Partners, a joint
venture organized as a general partnership under the law of the
State of New York (the "General Partner"), consisting of RP
Opportunity Management, L.P., a Delaware limited partnership
("RPOM"), and ML Opportunity Management Inc., a Delaware
corporation ("MLOM"), as General Partner, and those Persons
listed in the books and records of ML Media Opportunity Partners,
L.P., a Delaware limited partnership (the "Partnership"), as
limited partners of the Partnership.
WHEREAS, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") has indicated that it may make a
voluntary payment to the Partnership in the aggregate amount of
$23,671,989 (the "Cash Payment") with regard to certain general
and administrative expenses of the Partnership since the
formation of the Partnership and the Partnership Management Fees
and the Asset Management Fees paid by the Partnership to or for
the benefit of MLOM and RPOM, respectively, after the first
quarter of 1990; and
WHEREAS, the parties hereto desire to amend the Limited
Partnership Agreement to provide for (i) the distribution of the
proceeds of the Cash Payment to the Limited Partners (with the
General Partner waiving its right to its share thereof) if the
Cash Payment is made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ and (ii) the termination of
the Partnership's obligation to pay Partnership Management Fees
and Asset Management Fees which have accrued subsequent to
December 31, 1995 and all future Partnership Management Fees and
Asset Management Fees, and the consent of the General Partner,
MLOM and RPOM to such termination.
NOW THEREFORE, the undersigned, in consideration of the
premises, covenants and agreements contained herein and other
good, sufficient and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be
legally bound, hereby agree as follows:
Section 1. Definitions. Capitalized terms used
herein and not otherwise defined shall have the meanings ascribed
thereto in the Limited Partnership Agreement.
Section 2. Amendments.
(a) Article One of the Limited Partnership
Agreement is hereby amended to add the following new definitions:
"`Cash Payment' means a voluntary payment in the
amount of $23,671,989 that ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated may make to the Partnership with regard to certain
general and administrative expenses of the Partnership since
formation of the Partnership and Partnership Management Fees and
Asset Management Fees paid by the Partnership to or for the
benefit of MLOM and RPOM, respectively, after the first quarter
of 1990.
`RPOM' means RP Opportunity Management, L.P., a
Delaware limited partnership.
`MLOM' means ML Opportunity Management Inc., a
Delaware corporation."
(b) The Limited Partnership Agreement is hereby
amended to add a new Article Thirteen that reads as follows:
"ARTICLE THIRTEEN
CASH PAYMENT
Section 13.1. General Partner's Waiver of Right to
Proceeds of the Cash Payment. Notwithstanding anything to the
contrary contained in this Agreement, the Partnership shall not
pay to the General Partner and the General Partner waives any
right it may have to receive any portion of the Cash Payment in
any form.
Section 13.2. Distribution of the Cash Payment.
Notwithstanding anything to the contrary contained in this
Agreement, the Cash Payment if received from ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated shall be distributed promptly
following receipt by the Partnership to the Persons who were
limited partners of the Partnership as of March 24, 1997, in the
ratio which the Capital Contribution of each Limited Partner
bears to the total Capital Contributions of all Limited Partners.
Section 13.3. Profits Attributable to the Cash
Payment. Notwithstanding anything to the contrary contained in
this Agreement, for federal, state and local income tax purposes,
the full amount of the Profits attributable to the Cash Payment
shall be allocated to the Limited Partners and shall be allocated
among the Limited Partners in the ratio which the Capital
Contribution of each Limited Partner bears to the total Capital
Contributions of all Limited Partners.
Section 13.4. Termination of Partnership Management
Fees and Asset Management Fees. Notwithstanding anything to the
contrary contained in this Agreement, the Partnership shall not
pay the Partnership Management Fee or the Asset Management Fee
for any period subsequent to December 31, 1995, and the
Partnership shall have no further obligations to the General
Partner, MLOM or RPOM or any of their respective Affiliates to
make any additional or future payments of Partnership Management
Fees and Asset Management Fees."
Section 3. Consent of the General Partner, MLOM and
RPOM; Affirmation of the General Partner Duties. Each of the
General Partner, MLOM and RPOM, by its execution of this
Amendment, hereby consents to this Amendment and the effect of
this Amendment.
Section 4. Ratification. Except as amended hereby,
the Limited Partnership Agreement shall remain in full force and
effect in all respects.
Section 5. Headings. Section headings in this
Amendment are included for convenience of reference only and
shall not constitute a part of this Amendment for any other
purpose.
Section 6. Governing Law. This Amendment shall be
governed by, and construed and enforced in accordance with, the
laws of the State of Delaware without regard to principles of
conflict of laws.
Section 7. Counterparts. This Amendment may be
executed in several counterparts, all of which together shall
constitute one agreement binding on all parties hereto
notwithstanding that all parties have not signed the same
counterpart.
Section 8. Binding Provisions. The covenants and
agreements contained herein shall be binding upon and inure to
the benefit of the heirs, executors, administrators, successors
and assigns of the respective parties hereto.
Section 9. Separability of Provisions. Each
provision of this Amendment shall be considered separable and if
for any reason any provision or provisions of this Amendment, or
the application of such provision to any Person or circumstance,
shall be held invalid or unenforceable in any jurisdiction, such
provision or provisions shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability
without invalidating the remaining provisions hereof, or the
application of the affected provision to Persons or circumstances
other than those to which it was held invalid or unenforceable,
and any such invalidity or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in
any other jurisdiction.
IN WITNESS WHEREOF, the undersigned have executed this
Amendment as of the date first above written.
General Partner:
MEDIA OPPORTUNITY MANAGEMENT PARTNERS
By RP OPPORTUNITY MANAGEMENT, L.P.
By IMP OPPORTUNITY MANAGEMENT, INC.
By /s/I. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title:
By ML OPPORTUNITY MANAGEMENT INC.
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VICE PRESIDENT
Limited Partners:
All Limited Partners now or hereafter admitted
as limited partners of the Partnership pursuant
to the Powers of Attorney and authorizations now
and hereafter executed in favor of, granted and
delivered to the General Partner.
By MEDIA OPPORTUNITY MANAGEMENT
PARTNERS as Attorney-in-Fact for all Limited
Partners
By RP OPPORTUNITY MANAGEMENT, L.P.
By IMP OPPORTUNITY MANAGEMENT, INC.
By /s/I. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title:
By ML OPPORTUNITY MANAGEMENT INC.
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VICE PRESIDENT
RP OPPORTUNITY MANAGEMENT, L.P.
By IMP OPPORTUNITY MANAGEMENT, INC.
By /s/I. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name:
Title:
ML OPPORTUNITY MANAGEMENT INC.
By /s/▇▇▇▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: VICE PRESIDENT
