EXHIBIT 10.22
TABLE OF CONTENTS
AGREEMENT OF LIMITED PARTNERSHIP
OF
HOB MARINA CITY PARTNERS, L.P.
ARTICLE I CERTAIN DEFINITIONS............................. 1
ARTICLE II THE PARTNERSHIP................................. 6
Section 2.1 Formation................................ 6
Section 2.2 Name..................................... 6
Section 2.3 Registered Agent......................... 6
Section 2.4 Registered Office........................ 6
Section 2.5 Purposes and Powers...................... 6
Section 2.5 Ownership of Partnership Property; Waiver
Of Partition............................. 6
Section 2.7 Term of Partnership...................... 7
ARTICLE III CONTRIBUTIONS AND LIABILITIES................... 7
Section 3.1 General Partner's Contributions,
Liabilities, Construction and Loans...... 7
(a) Contribution.................................... 7
(b) Construction Loan............................... 7
Section 3.2 Initial and Subsequent Mandatory
Contributions of the Limited Partners.... 8
(a) Niki Contribution............................... 8
(b) Platinum Contribution........................... 9
(c) HOB Contribution................................ 9
Section 3.3 Additional Contributions................. 9
Section 3.4 Interest; Return of Contributions........ 10
Section 3.5 Capital Accounts......................... 10
(a) Separate Capital Accounts....................... 10
(b) Exempt Income................................... 11
(c) Return of Capital............................... 11
(d) Loans Not Capital............................... 11
(e) Negative Balances............................... 11
(f) No Obligations to Third Parties................. 11
(g) Modification of Capital Accounts to Comply
with the Code................................... 11
Section 3.6 Additional Limited Partners.............. 12
ARTICLE IV CASH DISTRIBUTIONS; ALLOCATIONS OF INCOME AND
LOSS............................................ 12
Section 4.1 Distributions of Net Cash Flow.................. 12
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Section 4.2 Allocation of Profits and Losses......... 12
Section 4.3 Special Allocations...................... 13
(a) Qualified Income Offset....................... 13
(b) Gross Income Allocation....................... 13
(c) Non-Recourse Deductions....................... 13
(d) Section 754 Adjustments....................... 13
(e) Diverted Cash Flow............................ 14
Section 4.4 Curative Allocations.......................... 14
Section 4.5 Tax Allocations: Code Section 704(c)......... 14
Section 4.6 Allocation and Distributions Among
Limited Partners.............................. 15
Section 4.7 Allocation Upon Transfer...................... 15
Section 4.8 Agreement to Make Changes Required by
Law........................................... 15
ARTICLE V MANAGEMENT.................................... 16
Section 5.1 Participation in Management................... 16
Section 5.2 General Authority of General Partner.......... 16
Section 5.3 Independent Activities........................ 17
Section 5.4 Duties of the General Partner................. 17
Section 5.5 Right of Third Parties to Rely on
Authority of General Partner.................. 18
Section 5.7 Certain Limitations on General Partner
Activities.................................... 18
Section 5.8 Exculpation................................... 21
Section 5.9 Standard of Care.............................. 22
Section 5.10 Indemnity..................................... 22
Section 5.11 Limitation on Liability....................... 22
ARTICLE VI TRANSACTIONS INVOLVING THE GENERAL PARTNER.... 22
ARTICLE VII ACCOUNTING, REPORTING, BEING, AND TAX
MATTERS....................................... 23
Section 7.1 Books of Account.............................. 23
Section 7.2 Reports....................................... 23
Section 7.3 Fiscal Year................................... 23
Section 7.4 Banking....................................... 24
Section 7.5 Tax Election for Basis Adjustment............. 24
Section 7.6 Partnership Returns........................... 24
Section 7.7 Information................................... 24
ARTICLE VIII TRANSFER OF PARTNERSHIP INTERESTS............. 24
Section 8.1 In General.................................... 24
Section 8.2 Transfers..................................... 25
Section 8.3 Additional Conditions to Transfer of
Percentage Interests.......................... 25
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Section 8.4 Death of a Limited Partner or Spouse of a
Limited Partner.............................. 26
Section 8.5 Purchase of Limited Partnership Interest
By General Partner........................... 26
Section 8.6 Transfer of General Partner's Interests;
Designation of Additional General
Partners..................................... 27
Section 8.7 Consent to Admission of New Partners......... 27
ARTICLE IX RESIGNATION OR REMOVAL OF THE GENERAL PARTNER;
FORFEITURE BY HOB; FORFEITURE BY NIKI........ 27
Section 9.1 Resignation or Removal of the General
Partner...................................... 27
Section 9.2 Bankruptcy or Dissolution of the General
Partner...................................... 28
Section 9.3 Liability of General Partner after
Resignation or Removal; Payment of
Partnership Indebtedness..................... 28
Section 9.4 Bankruptcy Provisions........................ 29
(a) Status of Trustee............................ 29
(b) Assumption of Obligations.................... 29
Section 9.5 Forfeiture of HOB Percentage Interest........ 29
Section 9.5 Forfeiture of Niki Percentage Interest....... 30
ARTICLE X DISSOLUTION AND WINDING UP OF
PARTNERSHIP.................................. 30
Section 10.1 Dissolution.................................. 30
Section 10.2 Election to Continue......................... 31
Section 10.3 Winding Up................................... 31
Section 10.4 Liquidator................................... 32
Section 10.5 Liquidation Statements....................... 33
ARTICLE XI MISCELLANEOUS PROVISIONS..................... 33
Section 11.1 Notices...................................... 34
Section 11.2 Law Governing................................ 34
Section 11.3 Severability................................. 34
Section 11.4 Section Headings and Captions................ 35
Section 11.5 Amendments................................... 35
Section 11.6 Meetings and Means of Voting................. 35
Section 11.7 Binding Nature of Certain Procedures......... 36
Section 11.8 Right to Rely Upon Authority................. 36
Section 11.9 Successors and Assigns....................... 36
Section 11.10 Counterparts................................. 36
Section 11.11 Modification to be in Writing................ 36
Section 11.12 Integrated Agreement......................... 37
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ARTICLE XII VARIOUS ADDITIONAL RIGHTS OF THE PARTNERS..... 37
Section 12.1 Option of Niki and Platinum to Put Their
Interests..................................... 37
Section 12.2 Option of General Partner to Purchase
The Interests of Niki and Platinum............ 38
(a) Prior to Initial Public Offering.............. 38
(b) After Initial Public Offering................. 39
Section 12.3 Other Acts Relative to the Options............ 40
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THE LIMITED PARTNERSHIP INTEREST DESCRIBED IN THIS DOCUMENT HAS BEEN ACQUIRED
FOR INVESTMENT AND HAS BEEN ISSUED PURSUANT TO A CLAIM OF EXEMPTION FROM THE
REGISTRATION OR QUALIFICATION PROVISIONS OF THE SECURITIES ACT OF 1933 OR THE
SECURITIES LAWS OF ANY STATE. THIS LIMITED PARTNERSHIP INTEREST MAY NOT BE
SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT ON DELIVERY TO THE PARTNERSHIP OF
AN OPINION OF COUNSEL SATISFACTORY TO THE GENERAL PARTNER OF THE PARTNERSHIP
THAT REGISTRATION IS NOT REQUIRED FOR THE TRANSFER, OR SUCH OTHER EVIDENCE
SATISFACTORY TO THE GENERAL PARTNER THAT THE TRANSFER IS NOT IN VIOLATION OF THE
SECURITIES ACT OF 1933 OR ANY APPLICABLE STATE SECURITIES LAWS. THE SALE,
PLEDGE OR OTHER TRANSFER OF THESE SECURITIES IS ALSO SUBJECT TO THE RESTRICTIONS
SET FORTH IN ARTICLE VIII OF THIS DOCUMENT.
AGREEMENT OF LIMITED PARTNERSHIP
OF
HOB MARINA CITY PARTNERS, L.P.
THIS AGREEMENT OF LIMITED PARTNERSHIP OF HOB MARINA CITY PARTNERS, L.P.
(the "Agreement"), is entered into as of the 29th day of January, 1996, by and
among HOB MARINA CITY, INC., a Delaware corporation, as General Partner, and
NIKI DEVELOPMENT, CORP., a Illinois corporation ("Niki"), PLATINUM BLUES
CHICAGO, L.L.C., an Illinois limited liability company ("Platinum") and HOB
CHICAGO, INC., a Delaware corporation ("HOB") as Limited Partners.
ARTICLE I
CERTAIN DEFINITIONS
Certain terms are used in this Agreement with the meanings set forth below:
Act shall mean the Delaware Revised Uniform Limited Partnership Act,
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as amended from time to time.
Adjusted Capital Account Deficit shall mean, with respect to any
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Partner, the deficit balance, if any, in the Partner's Capital Account as of the
end of the relevant fiscal year, after giving effect to the following
adjustments: (i) crediting to the Capital Account any amounts that the Partner
is obligated to restore or is deemed to be obligated to restore pursuant to the
penultimate sentences of sections 1,704-2(g)(1) and 1,704.2(i)(5) of the
Regulations; and (ii) debiting to the Capital Account of the items described in
sections 1,704-l(b)(2)(ii)(d)(4), (5) and (6) of the Regulations. This
definition of Adjusted Capital Account I Deficit is intended to comply with the
provisions of section 1.704-l(b)(2)(ii)(d) of the Regulations and shall be
interpreted consistently therewith.
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Affiliate of any Person shall mean any Person directly or indirectly
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controlling, controlled by or under common control with such other Person, and
shall mean any Family Member of a Person. A Person shall be deemed to control a
corporation if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such
corporation, whether through the ownership of voting securities, by contract or
otherwise.
Approval of the Limited Partners or Approved by the Limited Partners means
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the affirmative approval of Limited Partners who hold more than fifty percent
(50%) of the Percentage Interests of the Limited Partners, and who are Partners
then entitled to vote; provided that (i) with respect to decisions to be made by
the Partnership as Landlord under the Lease in connection with (a) a default by
the Tenant under the Lease, (b) the Tenant's right to assign or sublease the
Leased Premises, (c) the termination of the Lease by Landlord due to an
assignment or sublease by the Tenant or the Tenant's discontinuance of
operations of a business in the Leased Premises, (d) the exercise of all
Landlord rights with respect to a default by Tenant under the Lease or approvals
required by the Landlord with respect to the Tenant's obligations under the
Lease (other than in connection with the Work Letter attached thereto), (e) the
exercise by Landlord of all of its rights with respect to enforcement of the
obligations of HOB Entertainment, Inc. under its Guaranty of the Lease, (f) the
execution of any amendment, waiver, or other modification to the Lease, or (g)
the approval of all transactions between the Partnership and any Affiliate of
the General Partner, neither HOB nor any Partner who is an Affiliate of the
Tenant shall have the right to vote in connection with any such decision; and
(ii) with respect to any decision to be made by the Partnership concerning the
obligations of the Developer under the RDOEA (as hereinafter defined), neither
Niki nor any Partner who is an Affiliate of the Developer under the RDOEA shall
have the right to vote in connection with any such decision.
Approved Budget means a pro forma line item budget of all costs and
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expenses anticipated to be incurred in connection with the Partnership to
operate and maintain the Project for the period of time covered by the budget,
that has been Approved by the Limited Partners.
Bankruptcy means, for any Partner, that Partner's taking or acquiescing in
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the taking of an action seeking relief under, or advantage of, an applicable
debtor relief, liquidation, receivership, conservatorship, bankruptcy,
moratorium, rearrangement insolvency, reorganization, or similar law affecting
the rights or remedies of creditors generally, as in effect from time to time
(the term "acquiescing" including, without limitation, the failure to file,
within ten (10) days after its entry, a petition, answer, or motion to vacate or
to discharge an order, judgment, or decree providing for any such relief).
Capital Account shall have the meaning set forth in Section 3.4 hereof.
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Capital Contributions shall mean, with respect to any Partner, the amount
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of all cash and the fair market value of other property contributed by such
Partner (or such Partner's predecessor in interest) to the capital of the
Partnership pursuant to Article III hereof.
Code shall mean the Internal Revenue Code of 1986 as amended.
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Converted Limited Partner shall mean the General Partner whose interest as
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a General Partner has been converted to a Limited Partner's interest in
accordance with Section 9.1.
Family Member shall mean a Person's spouse, siblings, parents and lineal
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descendants (whether by adoption or consanguinity) and shall also mean a trust,
the primary beneficiary of which is the Person's spouse, siblings, parents and
lineal descendants (whether by adoption or consanguinity).
General Partner shall mean HOB MARINA CITY, INC., a Delaware corporation,
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and any successor or additional general partners of the Partnership admitted
into the Partnership pursuant to the terms of this Agreement.
Gross Receipts shall mean all receipts of the Partnership whether received
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by the General Partner or its Affiliates on behalf or for the account of the
Partnership arising from the operation of the Partnership or a sale of
Partnership assets other than a Terminating Capital Transaction.
Initial Public Offering shall mean a firm commitment underwritten public
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offering of Common Stock at a public offering price of at least $6.00 per share
(subject to adjustment), for aggregate proceeds to HOB Entertainment, Inc. of at
least $20,000,000.00.
Lease shall mean that certain Lease Agreement between the Partnership as
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Landlord and HOB Chicago, Inc., a Delaware corporation as Tenant ("Tenant")
effective September 14, 1995, and any and all modifications and amendments
thereto.
Leased Premises shall mean that portion of the Theatre Building (as
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hereinafter defined) described as follows (the "Leased Premises"):
Area B, Area C, Area D and Area E, together with easements in and to
the Mechanical and Loading Level situated below and serving such Areas,
such portions of the Theatre Building being shown on the Site Plan attached
hereto as Exhibit A-2 and designated and outlined in red on said Exhibit A-
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2, together with any and all improvements and fixtures now or hereafter
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situated on the Leased Premises and all appurtenances, easements and
privileges pertaining thereto, and the personal property, if any, described
on Exhibit A-3; and together with the rights and interests of Landlord and
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Tenant in and to the use and enjoyment of the Common Areas, as such
easements and rights are more particularly described in the Reciprocal
Development, operating and Easement Agreement.
Limited Partners shall mean Niki, Platinum and HOB and any substituted
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Limited Partner admitted pursuant to Article YIU.
Liquidator shall have the meaning set forth for that term in Section 10.4.
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Net Cash Flow shall mean, with respect to any period, the Gross Receipts of
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the Partnership less (i) cash operating expenses, (ii) debt service payments on
or repayments of
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Partnership borrowings, and (iii) those reserves which the General Partner
reasonably deems to be advisable for Partnership operations, not to exceed
$10,000.00 per year without the consent of the Limited Partners.
Non-recourse Deductions shall have the meaning set forth in section 1.704-
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2(c) of the Regulations.
Partners shall mean the General Partner and the Limited, Partners, and
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Partner shall refer to any one of them.
Partnership shall mean HOB MARINA CITY PARTNERS, L.P., a Delaware limited
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partnership.
Partnership Agreement or Agreement shall mean this Agreement of Limited
--------------------- ---------
Partnership of the Partnership.
Partnership Indebtedness shall mean any indebtedness of the Partnership
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payable to traditional lending institutions, such as banks, savings and loans,
insurance companies, pension funds, and other institutions engaged in the
lending of money.
Percentage Interests shall mean one percent (1%) for the General Partner;
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thirty-five percent (35%) for Niki, thirty-five percent (35%) for Platinum and
twenty-nine percent (29%) for HOB.
Person shall mean an individual, a partnership, a corporation, a trust, a
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joint venture, an unincorporated organization, or any other entity.
Profits, and Losses shall mean, for each fiscal year or other period, an
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amount equal to the Partnership's taxable income or loss for that 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 702 (a) (1) shall be included in taxable income or
loss).
Project shall mean that portion of the real property and improvements known
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as Marina City, Chicago, Illinois, which portion is depicted on the Site Plan
attached as Exhibit A-2 hereto, and which portion includes the Theatre Building,
the parking area portion of the two residential condominium towers, the building
anticipated to be redeveloped as a hotel, and the Common Areas as depicted
thereon and further defined in the RDOEA.
Reciprocal Development, Operating and Easement Agreement ("RDOEA") shall
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mean the Reciprocal Development, Operating and Basement Agreement pertaining to
the Project entered into among Niki as Developer, the Partnership as Landlord
and HOB as Tenant.
Regulations shall mean the Income Tax Regulations, including Temporary
-----------
Regulations, promulgated under the Code, as those regulations may be amended
from time to time (including corresponding provisions of succeeding
regulations).
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Terminating Capital Transaction shall mean the sale of substantially all of
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the assets of the Partnership as part of' the winding up under Section 10.3
below.
Theatre Building shall mean the real property and improvements described by
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metes and bounds in Exhibit A-1 hereto and depicted on the Site Plan attached
hereto as Exhibit A-2.
ARTICLE 11
THE PARTNERSHIP
Section 2.1 Formation. The General Partner and the Limited Partners
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hereby form a partnership pursuant to the Act for the purposes and upon the
terms and conditions set forth in this Agreement. Each Limited Partner shall be
admitted into the Partnership upon the execution hereof and, if later, the
General Partner's causing to be filed in the Office of the Secretary of State of
Delaware a Certificate of Limited Partnership that complies with the Act.
Section 2.2 Name. The name of the Partnership is HOB MARINA CITY
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PARTNERS, L.P. and all business of the Partnership shall be conducted in such
name, or in such other name or names as the General Partner may determine, with
the consent of the Limited Partners.
Section 2.3 Registered Agent. The registered agent of the Partnership for
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service of process shall be Corporation Service Company, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The General Partner shall give written notice to
each Limited Partner of any change in the Partnership's registered agent.
Section 2.4 Registered Office. The registered office of the Partnership
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where the books and records of the Partnership shall be kept shall be located at
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. The
Partnership may also have such other places of business as the General Partner
deems appropriate and of which it advises the Limited Partners in writing.
Section 2.5 Purposes and Powers. The purpose of the Partnership shall be
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to acquire and own the Leased Premises and to enter into the Lease and the RDOEA
and perform the obligations of the Landlord thereunder.
Subject to the limitations set forth in Section 5.7 below, in order to
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carry out the Partnership's purposes, the General Partner is empowered and
authorized to do any and all acts and things necessary, appropriate, proper,
advisable, incidental to or convenient for the furtherance and accomplishment of
its purposes and for the protection and benefit of the Partnership.
Section 2.6 Ownership of Partnership Property; Waiver of Partition.
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All Partnership property, both real and personal, presently owned or hereafter
acquired by the Partnership shall be owned by the Partnership and held in the
name of the Partnership. Each
5
Partner expressly waives any right it might individually have to require a
partition thereof or a dissolution of the Partnership, except as otherwise
specifically provided herein.
Section 2.7 Term of Partnership. The term of the Partnership commenced on
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the day and date first written above, and shall continue until September 30,
2045, unless sooner dissolved pursuant to Article X; provided, however, that in
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the event that the Lease is terminated prior to the Delivery Date as therein
defined, the Agreement shall terminate and be of no further force or effect and
none of the parties shall have any liability pursuant to Article III or
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otherwise with respect to obligations to be performed or payments to be made on
or after the Delivery Date.
ARTICLE III
CONTRIBUTIONS AND LIABILITIES
Section 3.1 General Partner's Contributions, Liabilities, Construction and
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Loans.
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(a) Contribution. The General Partner shall contribute, in cash, to
the Partnership the sun of $120,000.00, which contribution shall be made
contemporaneously with the initial Capital Contribution of HOB as set forth in
Section 3.2. The General Partner shall also execute on behalf of the
-----------
Partnership a Lease Agreement in the form attached as Exhibit A, simultaneous
with the execution of this Agreement and promptly after formation cause the
Landlord and the Tenant to execute the RDOEA.
(b) Construction Loan. On or before the later of (i) March 11, 1996,
or (ii) such later date as the Delivery Date occurs under the Lease, the General
Partner shall loan or cause an Affiliate or third party to loan to the
Partnership the sum of Six Million Dollars ($6,000,000.00) ("Construction Loan")
for purposes of the construction of improvements to the Leased Premises by the
Tenant. The principal amount of the Construction Loan shall include both hard
and soft costs in connection with such construction, including, but not limited
to, construction interest, an origination fee to the lender in the amount of one
percent (1%) of the principal amount of the Construction Loan, closing costs,
bonds, permits, and architectural and engineering fees. The Construction Loan
shall bear interest at the prime rate as quoted in the Wall Street Journal
throughout the term thereof (as the same fluctuates from time-to-time) plus one
percent (1%) per annum, and shall have a maturity date of forty (40) month
following the Delivery Date. The Construction Loan and any refinance of the
Construction Loan shall be nonrecourse to the Limited Partners. The General
Partner shall cause the Partnership to receive title insurance and appropriate
endorsements over new construction during the period from the Delivery Date as
defined in the Lease until the completion of Tenant's Work (as defined in the
Lease) so as to insure that the Leased Premises are free of liens arising from
Tenant's work. The General Partner shall document all improvements to the Leased
Premises funded by Landlord's Contribution as defined in the Lease and permit
the Limited Partner and their agents right to inspect all draws and supporting
documentation under the Construction Loan to assure compliance with the
foregoing. The Construction Loan shall be consistent with the terms and
provisions customary in similar loans from institutional lenders. The
Construction Loan shall not contain any prepayment penalties. The General
Partner shall have the right to refinance,
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renew or extend the Construction Loan without the consent of the Partners so
long as the monthly debt service based upon an amortization term of the
principal no greater than 20 years and providing for the full payment of current
interest (i.e., no accruals) and all other fees, charges and required payments
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which are scheduled and payable prior to maturity in connection therewith do not
exceed the monthly Minimum Rent payments and other payment obligations with
respect to insurance and taxes due by the Tenant under the Lease. In the event
of a forfeiture of the interest of the General Partner and HOB in the
Partnership pursuant to Sections 9.1(c) and 9.5 below at any time during which
the Construction Loan is outstanding to the General Partner or its Affiliate,
the General Partner and HOB shall cause the payment terms and maturity date of
the Construction Loan to be modified or extended, if necessary, to allow for the
Construction Loan to be fully amortized at its then stated interest rate in
monthly payments of principal and interest based upon the Minimum Rent due and
payable under the Lease immediately preceding its termination.
Section 3.2 Initial and Subsequent Mandatory Contributions of the Limited
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Partners. The Limited Partners shall contribute the following property and/or
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cash to the Partnership at the times hereinafter specified:
(a) Niki Contribution. On or before the later of (i) March 11, 1996,
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or (ii) such later date as the Delivery Date shall occur under the Lease, Niki
shall convey the Leased Premises to the Partnership by Special Warranty Deed,
free and clear of any and all liens, encumbrances, conditions, restrictions or
easements, other than (x) the RDOEA; (y) the Lease; and (z) such other easements
or encroachments as ROB shall have approved pursuant to the Lease. In addition,
at the time Niki contributes the Leased Promises to the Partnership,, Niki shall
provide the Partnership with an Owners Title Policy insuring good and marketable
fee simple title in the, Partnership subject to no exceptions other than those
set forth in clauses (x), (y) and (z) above, in the face amount of Five Million
Dollars ($5,000,000.00). For purposes of this Partnership, the value of the Niki
Capital Contribution pursuant to this paragraph shall be deemed to equal
$5,000,000.00, and Niki shall receive credit to its Capital Account in such
amount.
(b) Platinum Contribution. On or before the later of (i) March 11,
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1996, or (ii) such later date as the Delivery Date shall occur under the Lease,
Platinum shall deliver to the Partnership an unconditional irrevocable letter of
credit in the face amount of Five million Dollars ($5,000,000.00) with an
expiration date of no earlier than one (1) year following the Delivery Date.
The letter of credit shall be issued to the Partnership by a national bank with
offices in Chicago, Illinois having assets in excess of Five Billion Dollars
($5,000,000,000.00), and shall permit the General Partner to draw the entire
face amount thereof upon presentation to the bank of the original letter of
credit together with a written statement signed by the General Partner that
"Platinum Blues Chicago L.L.C. has failed to provide its initial capital
Contribution to the Partnership pursuant to Section 3.2 thereof." Platinum
agrees to allow the Partnership to pledge the letter of credit to the lender
under the Construction Loan and to execute such documents as may be reasonably
required by the lender to enable it to exercise the rights of the General
Partner with respect thereto. Upon request of Platinum and the approval of the
General Partner and Niki, Platinum may provide alternative financial security
for its initial Capital Contribution in lieu of the letter of credit as provided
herein. Within five (5) days following
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written notice from the General Partner to Platinum that the cost of
construction of improvements to the Leased Premises exceeds or is anticipated to
exceed within the next thirty (30) days the remaining funds available to the
Partnership under the Construction Loan, Platinum shall make its initial Capital
Contribution to the Partnership in the amount of Five Million Dollars
($5,000,000.00) cash. Upon the Partnership's timely receipt of such initial
Capital Contribution, the General Partner shall return the original letter of
credit described in this Section 3.2(b) to Platinum. If Platinum fails to make
its initial capital Contribution within the time period specified, the General
Partner shall present the letter of credit for payment.
(c) HOB Contribution. Substantially contemporaneously with the
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funding of Ten Million Dollars ($10,000,000.00) of Landlord's Contribution under
the Lease, from the proceeds of the Construction Loan and the Platinum
Contribution, HOB shall make its initial. Capital Contribution to the
Partnership in the amount of One Million Eight Hundred Eighty Thousand and
No/100 Dollars ($1,880,000.00) in cash.
Except for the Limited Partners' Initial Capital Contributions as
described above, the Limited Partners shall not be required to make any
additional contributions to the Partnership and the Limited Partners shall not
be personally liable for any of the debts and obligations of the Partnership.
Section 3.3 Additional Contributions. Provided that Tenant is not in
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default under the Lease, the General Partner or any Limited Partner, after a
resolution Approved by the Limited Partners, may call on the Partners to make
additional contributions to the capital of the Partnership if the Partnership
cash and reserves, in the reasonable opinion of the General Partner, are not
sufficient for the operation of the Partnership, but neither the General Partner
nor any Limited Partner shall have any obligation to make additional
contributions to the Partnership except as provided in Section 3.5(e) below.
These additional contributions shall be made in proportion to each Partner's
Percentage Interest. Each Partner shall have thirty (30) days from receiving
written notice of an additional contribution to make its pro rata share of the
requested contribution. If any Partner ("Non-Contributing Partner") fails or
refuses to make its entire additional contribution, the other Partners, or any
of them ("Contributing Partners") may loan to the Non-Contributing Partner the
amount required, and such loan shall bear interest from the date advanced until
paid at the prime rate of interest quoted in the Wall Street Journal (as the
same fluctuates from time-to-time) plus three percent (3%) per annum, which loan
shall be payable out of the next distributions payable to the Non-Contributing
Partner pursuant hereto on a pro rata basis with any other such loans
outstanding to the Non-Contributing Partner. Notwithstanding the foregoing,
none of the Partners shall be required or requested to make additional capital
contributions in connection with the construction of improvements to the Leased
Premises, it being the intent of the Partners that the cost of improvements to
the Leased Premises in excess of the sum of the Construction Loan, Platinum's
initial Capital Contribution and HOB's initial Capital Contribution shall be
paid by the Tenant under the Lease.
Section 3.4 Interest; Return of Contributions. Partners shall not be
---------------------------------
entitled to interest on their Capital contributions or to any return of their
Capital Contributions except as provided in this Agreement. No Partner shall
have the right to demand or (except as the Liquidator may determine pursuant to
Section 10.4) receive property other than cash in return for
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its Capital Contribution to the Partnership or have priority over any other
Partner, either as to the return of Capital Contributions by the Partnership or
as to distributions from the Partnership. Each Partner shall look solely to the
assets of the Partnership for the return of its Capital Contributions, and if
the assets of the Partnership are insufficient to return its Capital
Contributions, it shall have no recourse against any other Partner for that
purpose.
Section 3.3 Capital Accounts.
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(a) Separate Capital Accounts. Each Partner shall have a separate
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Capital Account which shall be increased and decreased in accordance with
Treasury Regulations (S)1.704-1(b)(2)(iv).
(b) Exempt income. The income of the Partnership which is exempt
-------------
from federal income tax and the amount of expenditures of the Partnership
described in Section 705 (a) (2) (B) of the Code shall be allocated to the
Partners as if such items were taxable income or deductible loss allocable
pursuant to Section 4.3 or 4.4, as the case may be.
------------------
(c) Return of Capital. To the extent any property which a Partner is
-----------------
entitled to receive pursuant to any other provision of this Agreement would
constitute a return of capital, each of the Partners consent to the withdrawal
of such capital.
(d) Loans Not Capital. Loans by the Partners to the Partnership (as
-----------------
permitted by this Agreement) shall not be considered Capital Contributions, nor
shall advances or payments on behalf of the Partnership for which the General
Partner is entitled to reimbursement hereunder be considered Capital
Contributions. No repayment of principal or interest on any such loans, or
reimbursement in respect to advances or other payments, or payments of fees to
the General Partner or its Affiliates which are made by the Partnership shall be
considered a return of capital or in any manner affect the General Partner's
Capital Account.
(e) Negative Balances. No Limited Partner with a negative balance in
-----------------
its Capital Account shall have any obligation to any other Partner or to any
other party to restore such negative balance. The General Partner shall
contribute, upon the dissolution and liquidation of the Partnership, an amount
equal to the lesser of (i) the deficit balance in its Capital Account, or (ii)
the excess of 1.01 percent of the total Capital Contributions of the Limited
Partners over the capital previously contributed by the General Partner.
(f) No obligations to Third Parties. No provision of this Agreement
-------------------------------
shall be construed to create an obligation of a Partner to contribute additional
capital to the Partnership for the benefit of any third party.
(g) Modification of Capital Accounts to Comply with the Code. The
--------------------------------------------------------
provisions of this Section 3.5 and other provisions contained in this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
section 1.704-1(b) of the Regulations,, and shall be interpreted and applied in
a manner consistent therewith. If the General Partner determines that it is
necessary or prudent to modify or adjust the manner in which the Capital
Accounts, or any debits or credits to the Capital Accounts, are computed in
9
order to comply with the Regulations, after obtaining the concurrence of tax
counsel of the other Partners, the General Partner shall make a modification or
adjustment, so long as it is not likely to have a material effect on the amounts
distributable to a Partner pursuant to Section 10.3 on the liquidation of the
------------
Partnership.
Section 3.6 Additional Limited Partners. With the prior written consent
---------------------------
of all of the Limited Partners, the Partnership is authorized to admit
additional Limited Partners at such prices and on such terms as shall be
determined by the General Partner and the Limited Partners. The General Partner
may admit as substituted Limited Partners those persons acquiring Percentage
Interests pursuant to Article, VIII below, and the name, residence address,
-------------
Percentage Interest and amount of Capital Contribution to the Partnership
attributable to each such person shall be reflected in an amendment to this
Agreement.
ARTICLE IV
CASE DISTRIBUTIONS; ALLOCATIONS OF INCOME AND LOSS
Section 4.1 Distributions of Net Cash Flow. The General Partner shall
------------------------------
make distributions of Net Cash Flow to the extent available, within a reasonable
time after the end of each fiscal quarter, to the Partners pro rata based upon
their relative Percentage Interests at the time of distribution.
Notwithstanding the foregoing, (a) Niki shall not be entitled to receive any
distributions of Net Cash Flow during any period following (i) the expiration of
three hundred (300) days following the Delivery Date that Landlord's
improvements to the Common Areas and Commercial Areas of the Project (other than
the Leased Premises) have not been substantially completed and/or the two
restaurants to be situated within the Project (other than in the Leased
Premises) have not opened as provided in the RDOEA, or (ii) the expiration of
five hundred forty-five (545) days following the Delivery Date that the hotel to
be situated within the Project has not been completed and opened for business as
provided in the RDOEA; and (b) HOB shall not be entitled to receive any
distributions of Not Cash Flow for the number of days, if any, commencing with
the opening of the Tenant's business that the period between the opening of the
Tenant's business and the Delivery Date under the Lease exceeds 300 days. The
interest of Niki and/or HOB in Net Cash Flow not distributed to them pursuant to
the preceding sentence (the "Diverted Cash Flow") shall be deemed to have been
forfeited by then for all purposes and the amount of such forfeited
distributions shall be divided among the other Partners on a pro rata basis in
accordance with their respective Percentage Interests as of the date of such
forfeiture(s).
Section 4.2 Allocation of Profits and Losses. Other than Profits and
--------------------------------
Losses attributable to a Terminating Capital Transaction, after taking into
account the special allocations set forth in this Article IV, the Profits and
Losses of the Partnership for each calendar year (or portion thereof), shall be
allocated among the Partners pro rata based upon their relative Percentage
interests. Profits and Losses attributable to a Terminating Capital Transaction
or liquidation event shall first be allocated among the Partners so that after
such allocations their respective Capital Account balances are in the same ratio
as their relative Percentage Interests, and thereafter Profits and Losses shall
be allocated among the Partners pro rata based upon their relative Percentage
Interests.
10
Section 4.3 Special Allocations. If the requisite stated conditions or
-------------------
facts are present, the following special allocations shall be made in the
following order:
(a) Qualified Income Offset. If a Limited Partner who is not also a
-----------------------
General Partner unexpectedly receives any adjustments, allocations or
distributions described in sections 1.704-1(b) (2) (ii) (d) (4), 1.704-
1(b)(2)(ii)(d)(5), or 1.704-1(b)(2)(ii)(d)(6) of the Regulations, then items of
Partnership income and gain shall be specially allocated to each such Limited
Partner in an amount and manner sufficient to eliminate, to the extent required
by the Regulations, the Adjusted Capital Account Deficit of the Limited Partner
as quickly as possible, provided that an allocation pursuant to this Section 4.3
(a) shall be made if and only to the extent that the Limited Partner would have
an Adjusted capital Account Deficit after all other allocations provided for in
this Article2 IV have been tentatively made without considering this Section
4.3(a).
(b) Gross Income Allocation. If a Limited Partner who is not also a
-----------------------
General Partner has a deficit Capital Account at the end of any Partnership
fiscal year that exceeds the sum of (i) the amount the Limited Partner is
obligated to restore, and (ii) the amount the Limited Partner is deemed to be
obligated to restore pursuant to the penultimate sentences of sections 1.704-2
(g) (1) and 1.704-2 (1) (5) of the Regulations, then each sum Limited Partner
shall be specially allocated item of Partnership income and gain in the amount
of the excess as quickly as possible, provided that an allocation pursuant to
this Section 4.3 (b) shall be made if and only to the extent that the Limited
Partner would have a deficit Capital Account in excess of that sum after all
other allocations provided for in this Article IV have been tentatively made
----------
without considering Section 4.3(a) or Section 4.3(b).
-------------- --------------
(c) Non-Recourse Deductions. Non-recourse Deductions for any fiscal
-----------------------
year or other period shall be allocated to the Partners pro rata based upon
their relative Percentage Interests.
(d) Section 754 Adjustments. To the extent an adjustment to the
-----------------------
adjusted tax basis of any Partnership asset under Code section 734(b) or Code
section 743(b) is required, pursuant to section 1.704-1(b)(2)(iv)(m) of the
Regulations, to be taken into account in determining Capital Accounts, the
amount of the adjustment to the Capital Accounts shall be treated as an item of
gain (if the adjustment increases the tax basis of the asset) or loss (if the
adjustment decreases the tax basis of the asset) and that gain or loss shall be
specially allocated to the Partners in a manner consistent with the manner in
which their Capital Accounts are required to be adjusted pursuant to that
Section of the Regulations.
(e) Diverted Cash Flow. Notwithstanding anything to the contrary in
------------------
this Agreement, Profits shall first be allocated to the Partners receiving any
Diverted Cash Flow in an aggregate amount equal to such Diverted Cash Flow
received by such Partner.
Section 4.4 Curative Allocations. The "Basic Regulatory Allocations"
--------------------
consist of allocations pursuant to Sections 4.3 (a) and 4.3 (b).
Notwithstanding any other provisions of this Agreement, the Basic Regulatory
Allocations shall be taken into account in allocating items of
11
income, gain, loss and deduction among the Partners so that, to the extent
possible, the net amount of the allocations of other items and the Basic
Regulatory Allocations to each Partner shall be equal to the net amount that
would have been allocated to each such Partner if the Basic Regulatory
Allocations had not occurred. For purposes of applying the foregoing sentence,
allocations pursuant to this Section 4.4 shall be made only with respect to
allocations pursuant to Section 4.3(d) to the extent that it can reasonably be
determined that those allocations will otherwise be inconsistent with the
economic agreement among the parties to this Agreement.
Section 4.5 Tax Allocations: - Code Section 704(c). In accordance with
--------------------------------------
Code sections 704(b) and (c) and the Regulations thereunder, income, gain, loss
and deduction with respect to property actually or constructively contributed to
the capital of the Partnership shall, solely for taxes purposes, be allocated
among the Partners so as to take account of any variation at the time of the
contribution between the adjusted basis of the property to the Partnership for
federal income tax purposes and its fair market value. If the fair market value
of a Partnership asset is adjusted pursuant to Section 3.5(a), then as provided
--------------
in the Regulations promulgated under Code section 704(b), subsequent allocations
of income, gain, loss and deduction with respect to that Partnership asset shall
take account of any variation between the adjusted basis of the asset for
federal income tax purposes and its fair market value in the same manner as
under Code section 704(c) and the Regulations thereunder. Any elections or
other decisions relating to those allocations shall be made by the General
Partner, after consulting with the Limited Partners and the Partnership's
accountant, in any manner that reasonably reflects the purposes and intent of
this Agreement. Allocations of income, gain, loss and deduction pursuant to
this Section 4.5 are solely for purposes of federal, state and local taxes and
-----------
shall not affect, or in any way be taken into account in computing, any
Partner's Capital Account or share of Profits, Losses or other tax items or
distributions pursuant to any provision of this Agreement.
Section 4.6 Allocation and Distributions Among Limited Partners. Unless
---------------------------------------------------
otherwise provided in this Agreement or in a written communication from the
Limited Partners to the General Partner, all allocations and distributions to
which the Limited Partners are entitled as a class shall be made among the
individual Limited Partners in the proportion that the total Capital
Contributions made by each Limited Partner bears to the total Capital
Contributions made by all the Limited Partners.
Section 4.7 Allocation Upon Transfer. If any interest in the Partnership
------------------------
is transferred, or is increased or decreased by reason of the admission of a new
Partner or otherwise, during any fiscal year of the Partnership, each item of
income, gain, loss, deduction, or credit of the Partnership for such fiscal year
shall be assigned pro rata to each day in the particular period of such fiscal
year to which such item is attributable (i.e., the day on or during which it is
accrued or otherwise incurred) and the amount of each such item so assigned to
any such day shall be allocated to the Partners based upon their respective
interests in the Partnership at the close of such day. For the purpose of
accounting convenience and simplicity, the Partnership shall treat a transfer
of, or an increase or decrease in, an interest in the Partnership which occurs
on or before the fifteenth day of a month as occurring on the first day of such
month. Admissions of Limited Partners and transfers of Interests occurring
between the sixteenth day of the month and the last day of the month shall be
treated as occurring on the first day of the succeeding month.
12
Section 4.8 Agreement to Make Changes Required by Law. The Partners
-----------------------------------------
acknowledge that Regulations issued under Code section 704(by require that
certain provisions be included in all partnership agreements as a condition to
having the allocations of tax items set forth in the agreements respected for
income tax purposes. The Partners hereby adopt those provisions of the
Regulations that are required to be included in a partnership agreement. The
Partners agree to exercise the utmost good faith in cooperating to amend this
Agreement to effect changes recommended by the Partnership's professional tax
advisers to cause compliance with those Regulations, with input from the tax
advisers of each Partner who desires to have any given in its behalf.
ARTICLE V
MANAGEMENT
Section 5.1 Participation in Management. Except as set forth in Section
---------------------------
5.7 and any other express provision of this Agreement, the Limited Partners
shall not otherwise participate in the management or control of the
Partnership's business nor shall they transact any business for the Partnership,
nor shall they have the power to act for or bind the Partnership, said powers
being vested exclusively in the General Partner. The Limited Partners are
authorized to consult with the General Partner regarding the business of the
Partnership.
Section 5.2 General Authority of General Partner. Subject to the
------------------------------------
limitations of Section 5.7 and any other express limitations of this Agreement,
the General Partner shall have all powers now or hereafter granted to a general
partner of a limited partnership under the Act or which are granted to it, as a
General Partner, under the provisions of this Agreement. Subject to Section 5.7
and any other express limitations of this Agreement, the General Partner shall
have overall responsibility for the affairs of the Partnership and for its
management and control and the General Partner shall have full power and
authority to do all things reasonably deemed necessary or desirable to conduct
the business of the Partnership, including, but not limited to, the following:
(a) to purchase or obtain contracts of liability, casualty, and
other insurance which the General Partner reasonably deems appropriate or
convenient for the protection of the assets and affairs of the Partnership or
for any other purpose beneficial to the Partnership;
(b) to pay any and all fees and expenses incurred in the
organization of the Partnership or the amending of this Agreement pursuant to
its provisions; and after full payment of Landlord's Contribution under the
Lease and payment of Debt Service under the Construction Loan to spend the
capital and income of the Partnership in the exercise of any rights or powers of
the General Partner;
(c) to execute, acknowledge, and deliver any and all instruments,
certificates, and agreements, and take such other steps as are necessary and
appropriate to effectuate the foregoing.
13
Any third party dealing with the General Partner in connection with
the Partnership shall be entitled to rely upon an affidavit of such General
Partner Approved by the Limited Partners to the effect that it has the authority
to engage in such dealings on behalf of the Partnership.
Section 5.3 Independent Activities. Except as provided below, the General
----------------------
Partner and each Limited Partner may, notwithstanding the existence of this
Agreement, engage in whatever activities they choose independent of the
Partnership or the other Partners, whether the same may be competitive with the
Partnership or otherwise without having or incurring any obligation to offer any
interest in such activities to the Partnership or any other Partner. Neither
this Agreement nor any activity undertaken pursuant hereto shall prevent the
General Partner from engaging in such activities, or require the General Partner
to permit the Partnership or any Limited Partner to participate in any such
activities, and as a material part of the consideration for the General
Partner's execution hereof and admission of such Limited Partner, each Limited
Partner hereby waives any such right or claim of participation ` Notwithstanding
the foregoing, throughout the term of this Partnership, neither the General
Partner nor any Affiliate of the General Partner shall directly or indirectly
operate a House of Blues restaurant and/or entertainment facility within a
twenty (20) mile radius of the Leased Premises without the written consent of
Niki and Platinum.
Section 5.4 Duties of the General Partner.
-----------------------------
(a) The General Partner shall use its reasonable efforts to carry
out the business of the Partnership. The General Partner shall devote itself to
the business of the Partnership to the extent that it reasonably may determine
to be necessary. Whenever reasonably requested by the Limited Partners, the
General Partner shall render a just and faithful account of all dealings and
transactions relating to the business of the Partnership.
(b) The General Partner, upon the Approval of the Limited Partners,,
shall cause the Partnership to perform all of its obligations under the Lease
and the RDOEA and to enforce the respective obligations of the Tenant under the
Lease and of the Developer under the RDOEA. If the Partners owning a majority of
the Percentage Interests in the Partnership determine in good faith that Tenant
should be served with a notice of default under the Lease, such Partners shall
notify the General Partner and in the event the General Partner fails to provide
a notice of default to the Tenant in accordance with the Lease and/or thereafter
fails to pursue the Landlord's remedies against the Tenant within the sooner of
(i) ninety (90) days following notice from such Partners requesting the General
Partner to pursue the Landlord's remedies, against the Tenant for default, or
(ii) such earlier period as may be required to cure a default under the
Construction Loan or a Renewal Loan (as defined in Section 5.7(b) (i)
------------------
resulting from the Tenant's default, the Partners owning a majority of the
Percentage Interests may designate an additional General Partner who may
exercise all rights of the General Partner under this subparagraph 5.4(b) or
elsewhere in this agreement relative to the Lease and the Leased Premises
including the right to collect all rentals, and enforce all provisions of the
Lease and to exercise control over any and all accounts of the Partnership;
provided that the Percentage Interest of the General Partner shall not be
reduced solely as a result thereof.
14
(c) It is hereby agreed by all Partners that the General Partner
shall be the "tax-matters partner" for the Partnership, as that term is defined
in Section 6231(a)(7) of the Code; provided, however, that prior to exercising
any tax election, the General Partner shall notify each of the Limited Partners
in writing of the General Partner's intent to make such tax elections and in the
event objected to in writing within 10 business days of written notice of such
election, such election will be made only with the approval of the Limited
Partners. All costs and expenses incurred by the tax matters partner, including
reasonably necessary overhead and administrative costs, in connection with the
performance of its duties and privileges as tax matters partner shall be
Partnership expenses.
(d) Upon the request of the Limited Partners, but not more
frequently than once each calendar year, the General Partner shall prepare a
detailed, pro forma line item budget of all costs and expenses anticipated to be
required to operate the Partnership for the period of time covered by the
budget, and shall submit the proposed budget to the Limited Partners. After
discussion and revision, as needed, the budget shall be finalized and on its
Approval by the Limited Partners, shall become the Approved Budget for the
period covered by it. It is understood that the Approved Budget shall reflect
item of income and expense for the Partnership and not the Leased Premises, it
being anticipated that an annual budget for the Leased Premises will be prepared
by the property manager and reviewed and approved by the General Partner on
behalf of the Partnership.
Section 5.5 Right of Third Parties to Rely on Authority of General
------------------------------------------------------
Partner.
-------
[Intentionally Omitted]
Section 5.6 Expenses of the Partnership. Except as otherwise specifically
---------------------------
provided by this Agreement, all reasonable expenses of the Partnership,
including, but not limited to, organization, offering, and operating expenses,
shall be borne by the Partnership. The General Partner and its Affiliates shall
be entitled to reimbursement from the Partnership for other out-of-pocket
expenses which are attributable to Partnership activities.
Section 5.7 Certain Limitations on General Partner Activities.
-------------------------------------------------
(a) The General Partner shall not do any of the following, without,
in each instance, obtaining the consent of each of the persons or entities who,
at the time in question, is a General Partner or Limited Partner:
(i) do any act in contravention of this Agreement;
(ii) do any act which would make it impossible to carry on
the ordinary business of the Partnership (except for a disposition of
Partnership assets approved pursuant to Section 5.7rbl);
(iii) confess a judgment against the Partnership;
(iv) possess Partnership assets, or assign the rights in
specific Partnership assets for other than a Partnership purpose;
15
(v) cause the Partnership to issue additional Percentage
Interests other than those issued pursuant to the initial offering of
Percentage Interests; or
(vi) do any other act which the Act specifically requires to
be approved by all Partners; provided, however, that to the extent the
provisions of the Act may be waived by agreement of the Partners, the
provisions of this Agreement providing for less than the unanimous approval
of the Partners shall be fully operative.
(b) Notwithstanding anything to the contrary herein contained, and
as a specific expressed limitation on the authority of the General Partner, the
General Partner shall not do any of the following, without, in each instance,
obtaining the written Approval of the Limited Partners, such Approval not to be
unreasonably withheld:
(i) incur any debt, whether as original financing or as
refinancing of existing debt, except for the Construction Loan from the
General Partner or its Affiliate or third parties (as defined in Section
-------
3.1(b), and any renewal, modification or refinancing thereof ("Renewal
------
Loan") provided that the monthly debt service payable in connection
therewith does not exceed the monthly Minimum Rent payments due by the
Tenant under the Lease; or
(ii) sell, lease, transfer, or otherwise dispose of any of
the Partnership's properties and/or assets with a value of greater than
$25,000.00, or consolidate with or merge into any other entity, or permit
any other entity to merge into or sell, lease, or transfer all or
substantially all of its assets to the Partnership;
(iii) expend funds of the Partnership for items not contained
in the Approved Budget, except in the event of an emergency;
(iv) acquire any land or interest other than the Leased
Premises;
(v) approve plans and specifications of the Leased Premises
on behalf of Landlord;
(vi) execute any guaranty, mortgage, or otherwise obligate
the partnership to any indebtedness in excess of $25,000 in the aggregate
not contemplated by the Approved Budget except for the Construction Loan or
Renewal Loan meeting the criteria of Section 3.1;
(vii) the execution of any agreement between the General
Partner and any Affiliate of the General Partner or between the General
Partner and any Limited Partner or any Affiliate of a Limited Partner not
set forth in the Annual Budget approved by a majority of the disinterested
Limited Partners;
(viii) the hypothecation or pledge of any Partnership asset
except in connection with the Construction Loan or a Renewal Loan;
16
(ix) the selection of architects, attorneys, accountants or
other professional advisors of the Partnership;
(x) the commencement of any litigation on behalf of the
Partnership or settlement of any actions, claims, and demands against the
Partnership not covered by the Tenant's liability insurance under the
Lease;
(xi) the execution of any agreement which is not cancelable
by the Partnership upon thirty days written notice or which obligates the
Partnership to any liability not set forth in the Approved Budget then in
effect;
(xii) the admission of a new general partner or the admission
of a new Limited Partner;
(xiii) the acquisition of any equity interest by the
Partnership in any other partnership, limited partnership, joint venture,
limited liability company, corporation or other business entity;
(xiv) the making of any loan by the Partnership to any person;
(xv) the establishment of any reserves not contained in the
Annual Budget and the failure to distribute Net Cash Flow in accordance
with this Agreement; and
(xvi) any other act which would divert rentals received by the
Partnership for a purpose other than the payment of the Construction Loan
or any Renewal Loan, the proportionate distribution of Net Cash Flow to the
Partners; or the payment of Partnership expenses contemplated by the
Approved Budget then in effect.
Section 5.8 Exculpation. The General Partner and its authorized
-----------
representatives shall not be liable, responsible, `or accountable in damages or
otherwise to the Partnership or any Partner for any Action taken or failure to
act on behalf of the Partnership if:
(a) The General Partner representatives acted in good faith;
(b) The action or failure to act did not constitute a breach of a
provision of this Agreement;
(c) Reasonably believed:
(i) in the case of conduct in the person's official capacity
as a General Partner, that the person's conduct was in the Partnership's
best interest; and
(ii) in all other cases, that the person's conduct was at
least not opposed to the Partnership's best interests; and
17
(d) In the case of a criminal proceeding, had no reasonable cause to
believe that the person's conduct was unlawful.
Notwithstanding the foregoing, the General Partner may not be indemnified with
respect to a proceeding in which:
(w) the General Partner fails to obtain the Approval of the Limited
Partners when required and under Section 5.7;
(x) the General Partner has been found liable for willful or
intentional misconduct in the performance of the person's duty to the
Partnership or Limited Partners;
(y) the General Partner is found liable on the basis that the
General Partner or its Affiliates received personal benefit, whether or not the
benefit resulted from an action taken in the General Partner's official
capacity; or
(z) the General Partner is found liable to the Partnership or
Limited Partners.
Section 5.9 Standard of Care. The General Partner shall perform its
----------------
duties under this Agreement with ordinary prudence and in a manner
characteristic of a businessman in similar circumstances, and consistent with
its fiduciary duty to the Limited Partners.
Section 5.10 Indemnity. The General Partner and its authorized
---------
representatives shall be indemnified by the Partnership against any losses,
judgments, liabilities, expenses, penalties, fines, taxes and amounts paid in
settlement of any claims sustained by him or it in connection with the
Partnership, including but not limited to any judgment, award, settlement,
reasonable attorneys' fees, and other costs or expenses incurred in connection
with the defense or settlement of any actual or threatened action, proceeding or
claim, provided that the General Partner or its authorized representative has
met the standard of care contained in Section 5.9 and is entitled to exculpation
-----------
under the criteria set forth in Section 5.8. Anything to the contrary in this
-----------
Section 5.10 notwithstanding, the Partnership shall not be required to
------------
indemnify the General Partner for any liability incurred by the General Partner
without the Approval of the Limited Partners to the extent such liability arose
from an act, transaction or agreement requiring such Approval under this
Agreement or from any liability arising from a breach by the General Partner of
its duties hereunder or incurred by the Partnership as a result of the breach by
the Tenant under the Lease.
Section 5.11 Limitation on Liability. Except for the initial Capital
-----------------------
Contributions of the Limited Partners described in Section 3.2 above, unless
-----------
they otherwise agree in a separate writing with a third party creditor of the
Partnership, the Limited Partners have no personal liability whatever, whether
to the Partnership, the General Partner or any creditor of the Partnership, for
the debts, expenses, liabilities, or obligations of the Partnership.
ARTICLE VI
TRANSACTIONS INVOLVING THE GENERAL PARTNER
18
Subject to the provisions of Section 5.7, the General Partner shall be
-----------
entitled to contract with Affiliates of the General' Partner for management,
construction, leasing, brokerage, janitorial and like services, provided that
such services are provided at an arms-length price which is reflective of and
consistent with market conditions related to comparable properties in the
Chicago, Illinois area.
ARTICLE VII
ACCOUNTING, REPORTING, BEING, AND TAX MATTERS
Section 7.1 Books of Account. The General Partner shall maintain the
----------------
Partnership's books and records and this Agreement at the principal office of
the Partnership, and each Partner shall have access thereto for the purposes of
examination and inspection at reasonable times and on reasonable notice. The
Limited Partners shall have access to and the right to have professional
auditors audit the underlying business and financial records of the Partnership
including the right to review all underlying accounts, checks, invoices. The
cost of such audit shall be borne by the Limited Partners requesting it, unless
the results of the audit indicate an understatement of income or an
overstatement of expenses in excess of three percent (3%) of the amount
reported, in which event the General Partner shall bear the expense of such
audit. The books and records shall be kept in accordance with applicable tax
accounting rules and regulations, applied in a consistent manner, shall reflect
all Partnership transactions, and shall be appropriate and adequate for the
Partnership's business.
Section 7.2 Reports. The General Partner shall cause to be prepared, at
-------
the reasonable expense of the Partnership, the following reports:
(a) within thirty (30) days after the end of each calendar quarter a
quarterly report which shall include a balance sheet together with a profit and
loss statement for the quarter, and for the current year-to-date;
(b) within sixty (60) days after the end of each fiscal year, an
annual report which shall include (i) a balance sheet as of the end of such
fiscal year, together with a profit and loss statement, a statement of source
and application of funds and a statement of changes in Partners' capital for
such year; (ii) a report of the activities of the Partnership for such year; and
(iii) a report on distributions to the Limited Partners for such period,
separately identifying distributions of Net Cash Flow, financing proceeds and
reserves. Such annual report shall also include such other information as is
deemed reasonably necessary by the General Partner to advise the Limited
Partners of the affairs of the Partnership; and (c) within sixty (60) days after
the end of the fiscal year, all Partnership information necessary for the
preparation of the Limited Partners' federal income tax returns.
Section 7.3 Fiscal Year. The fiscal year of the Partnership shall be the
-----------
calendar year.
Section 7.4 Banking. All funds of the Partnership shall be deposited in a
-------
separate account or accounts, not commingled with those of any other person, in
a commercial or other
19
financial institution insured by an agency of the federal government of the
United States as the General Partner shall determine. All Partnership funds
shall at all times be held in fully-insured accounts. All checks drawn upon said
account or accounts shall be drawn only for Partnership purposes and shall be
signed by the General Partner or an authorized representative of the General
Partner or the Partnership.
Section 7.5 Tax Election for Basis Adjustment. Upon the transfer of
---------------------------------
Percentage Interests or in the event of a distribution of assets of the
Partnership, at the request of the transferee, the Partnership shall elect
pursuant to Section 754 of the Code to adjust the basis of the Partnership's
property as allowed by Section 734(b). Any such election shall be filed with
the Partnership return for the first taxable year to which the election applied.
Section 7.6 Partnership Returns. The General Partner shall for each
-------------------
fiscal year, file, on behalf of the Partnership, a Partnership return and any
other necessary tax returns no less than thirty (30) days before the time
prescribed by law (including extensions) for such filing. The General Partner
shall use reasonable efforts to cause all Partnership tax returns to be prepared
in a timely manner so as to avoid the necessity of the Limited Partners having
to obtain extensions for the filing of their individual tax returns.
Section 7.7 Information. Upon reasonable request, the Partnership will
-----------
supply promptly to any Limited Partner the names and addresses of all Limited
Partners as such information is at the time of request reflected in the records
of the Partnership, and shall further release such information concerning
Partnership operations as shall be required by law or regulation, or order of
any regulatory body having jurisdiction.
ARTICLE VIII
TRANSFER 0F PARTNERSHIP INTERESTS
Section 8.1 In General. A Partner may not sell, transfer, or
----------
encumber (or subject to any lien or security interest) its interest in the
Partnership or any part thereof (including, but not limited to, its right to
receive distributions pursuant to this Agreement), except as permitted in this
Article VIII, and any act in violation of this Article shall be null and void ab
------------
initio
Section 8.2 Transfers.
---------
(a) Except as set forth in Section 8.2(b) below, no Partner shall
have the right, without the Approval of the Limited Partners (not to be
unreasonably withheld), to transfer all or any part of its interest in the
Partnership.
(b) Without the Approval of the Limited Partners or the General
Partner, a Limited Partner may transfer its interest in the Partnership to an
Affiliate of the Limited Partner.
(c) Each transferee of any interest in the Partnership shall derive
its interest from the interest in the Partnership of the Partner making such
transfer and, for the purposes of this Agreement, shall be deemed to have a
community of interests and obligations with the
20
Partner making such transfer. Unless the remaining Partners unanimously agree to
release the transferring Partner from further obligations hereunder, the Partner
making the transfer shall remain liable for its obligations hereunder,
notwithstanding such transfer. No change in ownership of any interest in the
Partnership or rights under this Agreement shall be binding upon any other party
hereto until a copy of all instruments executed and delivered pursuant to or in
connection with such transfer shall have been delivered to the other parties
hereto.
Section 8.3 Additional Conditions to Transfer of Percentage Interests. In
---------------------------------------------------------
addition to the other conditions contained in this Article VIII, a Limited
------------
Partner may sell, transfer, assign or subject to security interest any or all of
the Limited Partner's Percentage Interests owned by him, subject to the
following conditions:
(a) an assignee or transferee of, or holder of a security interest
in, the Percentage Interests of the Limited Partners shall not become a
substituted Limited Partner without the consent of the General Partner, which
may be unreasonably withheld;
(b) such sale, transfer, or assignment may not be made if it would
impair the ability of the Partnership to be taxed as a partnership or if it
would result in a "termination" of the Partnership pursuant to Section 708 of
the Code, as determined by the General Partner in its sole discretion;
(c) such sale, transfer or assignment may not be made if it would
cause the Partnership to register as an investment company under the Investment
Company Act of 1940;
(d) such Partner and its purchaser, transferee, or assignee execute,
acknowledge and deliver to the General Partner such instruments of transfer and
assignment with respect to such transaction as are in form and substance
reasonably satisfactory to the General Partner, including, without limitation,
with respect to a person seeking admission as a substituted Limited Partner, a
written notice delivered to the General Partner requesting such admission and
the written acceptance and adoption by such person of the provisions of this
Agreement;
(e) upon request of the General Partner, such Partner furnishes an
opinion of counsel, the expense of obtaining said opinion to be borne solely by
such Partner, reasonably satisfactory in form and substance to the Partnership's
counsel, to the effect that:
(i) such sale, transfer or assignment will not impair the
ability of the Partnership to be taxed as a Partnership, will not result in
a "termination" of this Partnership pursuant to Section 708 of the Code or
otherwise impair its treatment for federal tax purposes; and
(ii) such sale, transfer or assignment will not violate any
applicable federal or state securities laws, or cause the Partnership to
have to register under the Investment Company Act of 1940;
(f) such Partner pays the Partnership all reasonable expenses of the
Partnership in connection with such transaction; and
21
(g) the purchaser, transferee, or assignee represents in writing, in
form and substance satisfactory to the General Partner, that it is
acquiring the Limited Partnership interest for its own account for
investment and not with a view to distribution thereof.
If the foregoing conditions are satisfied and all other conditions to
transfer as required by this Agreement are satisfied, and admission as a
substituted Limited Partner has been requested, this Agreement shall be amended
and all other steps shall be taken which, in the opinion of the General Partner,
are reasonably necessary to admit such person as a substituted Limited Partner.
Section 8.4 Death of a Limited Partner or Spouse of a Limited Partner.
---------------------------------------------------------
The death or dissolution of any Limited Partner shall not have the effect of
dissolving the Partnership. Upon the death or dissolution of a Limited Partner,
its estate, devisees, heirs and/or successors shall succeed to its Limited
Partnership interest (as an assignee, not as a substituted Limited Partner) and
shall be bound by the terms and provisions of this Agreement.
Section 8.5 Purchase of Limited Partnership Interest by General Partner.
-----------------------------------------------------------
The General Partner may (but shall not be obligated to) acquire Limited
Partnership interests from any Limited Partner and shall enjoy all rights and be
subject to all of the obligations and duties of a Limited Partner or an
assignee, as the case may be.
Section 8.6 Transfer of General Partners Interests; Designation of
------------------------------------------------------
Additional General Partners. The General Partner may not assign, transfer,
---------------------------
sell, give, pledge, encumber, or otherwise dispose of its interest as General
Partner in the Partnership, unless required or permitted to do so by the terms
of Article IX below or this Article. With the consent of all Limited Partners,
----------
or without such consent if necessary to preserve the status of the Partnership
as a partnership for federal income tax purposes, the General Partner may at any
time designate one or more persons to be admitted as additional General
Partners, with such participation in the General Partner's Partnership interests
as the General Partner and the additional General Partners may agree upon,
provided that the interests of the Limited Partners shall not be affected
thereby.
Section 8.7 Consent to Admission of Now Partners. Each Limited Partner
------------------------------------
agrees, by its execution hereof that the consent by the General Partner to (a)
the admission of any assignee or transferee of a Limited Partner's Partnership
interest or interests as a substituted Limited Partner whose admission has been
approved in accordance with Section 8.3(a); (b) the characterization of the
--------------
interest of a former General Partner as a Converted Limited Partner's interest
pursuant to, Article IX and the execution and filing of documents to reflect
----------
such status; and (c) the admission of an assignee of a General Partner's entire
interest as a substitute General Partner pursuant to Article X shall constitute
---------
the consent of such Limited Partner to such admission.
ARTICLE IX
RESIGNATION OR REMOVAL OF THE GENERAL PARTNER;
22
FORFEITURE BY BOB; FORFEITURE BY NIKI
Section 9.1 Resignation or Removal of the General Partner.
---------------------------------------------
(a) The General Partner may resign from the Partnership by
delivering its written notice of resignation to the Limited Partners. Such
resignation shall not be effective earlier than ninety (90) days after the date
the resigning General Partner delivers its written notice of resignation;
subject to the foregoing and upon the effective date specified in such notice of
resignation, or an earlier date specified by the Approval of the Limited
Partners, a resigning General Partner shall cease to be a General Partner of the
Partnership. A General Partner having resigned shall have no liability to the
Partnership or its creditors or Partners for liabilities and obligations created
after the effective date of the resignation, and the Limited Partners hereby
grant to the General Partner, the full right and authority to execute and file
on behalf of the Partnership and the Limited Partners any documents necessary to
effect the resignation of the General Partner in compliance with this section.
(b) On a vote of a majority-in-interest of the Limited Partners
communicated in writing to the General Partner, the Limited Partners may remove
the General Partner for cause. For purposes hereof, "cause" shall mean either
(i) a persistent and material breach of this Agreement by the General Partner
which is not cured within thirty (30) days following written notice to the
General Partner (or such longer period of time as may be reasonable if such
breach cannot reasonably be cured within thirty (30) days and the General
Partner is diligently pursuing such cure); or (ii) the forfeiture of the Limited
Partnership interest of HOB pursuant to Section 9.5 below; or (iii) the
-----------
dissolution of the General Partner. Upon the effective date of such removal as
specified in the notice to the General Partner, the removed General Partner
shall cease to be a General Partner of the Partnership. A General Partner
having been so removed shall have no liability to the Partnership or its
creditors or partners for liabilities and obligations created after the
effective date of such removal.
(c) Upon the resignation or removal of the General Partner as
provided above, if the Limited Partners elect to continue the business of the
Partnership, the interest of the General Partner shall be divided among the
remaining Limited Partners on a pro rata basis calculated based upon their
respective Percentage Interests, and all interest of the General Partner in the
Partnership shall be deemed to have been forfeited to such remaining Limited
Partners, and a proper amendment to this Agreement shall be made to reflect such
change.
Section 9.2 Bankruptcy or Dissolution of the General Partner.
------------------------------------------------
(a) On a Bankruptcy or dissolution of the General Partner, it shall
cease to be a General Partner of the Partnership.
(b) Upon the occurrence of any of the events specified in Section
-------
9.2(a), if the Limited Partners elect to continue the business of the
------
Partnership, the interest of the General Partner shall be automatically (as of
the date of occurrence of such event) subject to Section 9.4. A proper amendment
-----------
to this Agreement shall forthwith be made to reflect such status.
23
Section 9.3 Liability of General Partner after Resignation or Removal;
----------------------------------------------------------
Payment of Partnership Indebtedness. If the General Partner resigns or is
-----------------------------------
removed in accordance with the provisions of this Partnership Agreement, its
liability as a General Partner for obligations created after that event and
which do not relate to winding up shall cease in accordance with applicable law.
A removed or resigning General Partner (or its legal representative) shall
execute and deliver all instruments and take all other actions as shall be
necessary and appropriate to install its successor as a General Partner.
Section 9.4 Bankruptcy Provisions.
---------------------
(a) Status of Trustee. On the Bankruptcy of a General Partner, the
-----------------
trustee or debtor- in-possession (collectively, the "trustee") automatically
has the status of an assignee of that General Partner's Partnership Interest
under Section ____ of the Delaware Revised Limited Partnership Act. Therefore,
the trustee would own the Partnership Interest of that General Partner in
Bankruptcy, but would not have any rights with respect to specific property of
the Partnership and would not have any rights with respect to the management of
the Partnership's business or property. Furthermore, that General Partner in
Bankruptcy would have no further rights to participate in the management of the
Partnership or its property, and those managerial rights and duties shall be
vested solely in the General Partner who is not in Bankruptcy (or if none, the
successors of the Partners in Bankruptcy, if the Partnership is reconstituted).
Unless otherwise required by applicable law, it is the intent of the Partners
that a voluntary filing of a case under Chapter 11 of the Bankruptcy Code, 11
U.S.C. (S)101 et seq. by the Partnership or a General Partner not be considered
-- ---
to effect an automatic dissolution of the Partnership under the Act. Rather,
that determination of whether or not to dissolve the Partnership should be made
by the General Partner, subject to Approval of the Partners, on a filing by the
Partnership, and by the Approval of the Limited Partners on a filing by a
General Partner.
(b) Assumption of Obligations. Any entity to which a Partner's
-------------------------
rights are assigned pursuant to the provisions of the Bankruptcy Code, shall be
deemed without further act to have assumed all of the obligations arising under
this Agreement on or after the effective date of the assignment. On demand, any
such assignee shall execute and deliver to each other party to this Agreement an
instrument confirming that assumption. A failure to deliver the assumption
agreement is a default under this Agreement by the assignee.
Section 9.5 Forfeiture of HOB Percentage Interest. Upon the termination
-------------------------------------
of the Lease due to either (i) the Tenant's cessation of operations as provided
in paragraph 6.c.iii thereof, or (ii) the Tenant's desire to assign or sublease
as provided in paragraph 6.f. of the Lease; or (iii) an Event of Default by
Tenant under the Lease which causes the Landlord to terminate Tenant's right to
possession of the Leased Premises, the interest of HOB in and to this
Partnership shall be forfeited to the remaining Limited Partners, in which event
the interest of HOB shall be divided among the remaining Limited Partners on a
pro rata basis calculated based upon their respective Percentage Interests
immediately preceding such forfeiture. The General Partner shall not enter into
any agreement or engage in any other business activity other than the
performance of its obligations under this Partnership Agreement and the General
Partner shall not incur any other indebtedness to third parties. The General
Partner shall not lien or encumber its interest in the Partnership. HOB and the
General Partner acknowledge that the forfeiture of
24
their interest as set forth herein was in consideration for various other
concessions made by the other Limited Partners and the disproportionate profit
and loss participations which were provided on the expectation by the Limited
Partners that the Tenant would continue to operate the Leased Premises as a
House of Blues themed operation.
Section 2.6 Forfeiture of Niki Percentage Interest. In the event HOB, as
--------------------------------------
Tenant under the RDOEA, elects to perform improvements to the Common Area due to
the failure by Niki to commence the Common Area and Commercial/Retail Area
improvements within one hundred twenty (120) days following the Delivery Date or
to thereafter diligently pursue the completion thereof as provided in the
Inducement Agreement entered into between Niki, ROB and others contemporaneously
herewith, and Niki fails to reimburse HOB for the full amount paid by HOB
together with interest thereon at the Default Rate specified in the Lease ("HOB
Common Area Costs") prior to the date HOB opens its business in the Leased
Premises, the Percentage Interest of Niki shall be reduced and the Percentage
Interest of HOB shall be increased by the pro rata portion of Niki's Percentage
Interest equal to the ratio that the HOB Common Area Costs bears to $5 million.
For example, if the HOB Common Area Costs are $1 million and Niki fails to
reimburse HOB for such amount by the date HOB opens for business in the Leased
Premises, the Percentage Interest of Niki shall be reduced by twenty percent
(20%) to twenty-eight percent (28%) and the Percentage Interest of HOB shall be
increased accordingly to thirty-seven percent (37%). Upon such adjustment, Niki
shall have no further obligation to pay to HOB the HOB Common Area Costs.
ARTICLE X
DISSOLUTION AND WINDING UP OF PARTNERSHIP
Section 10.1 Dissolution. The Partnership shall be dissolved upon the
-----------
first to occur of any of the following events:
(a) the resignation, removal, bankruptcy or dissolution of the
General Partner, pursuant to Article IX;
----------
(b) the sale of substantially all of the assets of the Partnership
and conversion into cash of all proceeds thereof received in a non-cash
form or medium; or
(c) the expiration of the term of the Partnership as stated in
Section 2.7 above.
Section 10.2 Election to Continue. Upon the occurrence of an event
--------------------
causing dissolution of the Partnership pursuant to Section 10.1(a) , 10.1(b) or
----------------------------
10.1(c), the General Partner (or former General Partner), shall promptly give
-------
notice of dissolution to the Limited Partners, and shall call for a vote of the
Limited Partners to continue the business of the Partnership or to wind up the
Partnership pursuant to Section 11.3 below. If the Limited Partners (exclusive
------------
of any Partner that is an Affiliate of the General Partner) do not, within sixty
(60) days after any such dissolution, unanimously elect to continue the business
of the Partnership, the Partnership shall be wound up pursuant to Section 10.3
------------
of this Agreement. If the Limited Partners elect to
25
continue the business of the Partnership, and there is then no General Partner,
a substitute General Partner shall be elected on the written Approval of the
Limited Partners, but if no substitute General Partner shall be elected and
commence to serve as such within thirty (30) days after the effective date of
the election to continue, the Partnership shall be wound up under Section 10.3,
------------
notwithstanding the election to continue.
Section 10.3 Winding Up. Upon failure of Limited Partners to elect
----------
to continue the business of the Partnership pursuant to Section 10.2 above, or
------------
upon any other dissolution of the Partnership pursuant to Section 10.1 when
continuation is not provided for, the General Partner or, if the General Partner
has resigned or been removed, a liquidator or liquidating committee elected by
Limited Partners holding a majority of the Percentage Interests of the Limited
Partners outstanding and entitled to be voted (the party or parties conducting
the liquidation are herein called the "Liquidator"), shall take full account of
the Partnership's assets and liabilities, and the assets shall be liquidated as
promptly as is consistent with obtaining the fair market value thereof, and the
proceeds therefrom to the extent sufficient therefor shall be applied and
distributed in the following order:
(a) to the payment and discharge of, or to the making of reasonable
provision for payment of, all of the Partnership's debts and liabilities to
persons other than Partners or former Partners and of the expenses of
liquidation;
(b) to the establishment of any reserves which the Liquidator may
deem reasonably necessary for any contingent or unforeseen liabilities or
obligations of the partnership or of the General partner arising out of or in
connection with the Partnership. Such reserves shall be paid to an escrow agent
to be held for the purpose of disbursing such reserves in payment of any of the
aforementioned contingencies, and, at the expiration of such period as shall be
specified in the instructions to such escrow agent by the Liquidator, to
distribute any balance then remaining as provided below;
(c) to the repayment of any loans or advances that may have been
made by any of the Partners to the Partnership, but if the amount available for
such repayment shall be insufficient, then pro rata (in accordance with the
principal amounts owing) on account thereof;
(d) to all Partners in proportion to the positive balances of their
Capital Accounts; and
(e) to all Partners in accordance with their respective Percentage
Interests.
The Partners' Capital Account balances shall be appropriately adjusted
before any liquidating distributions (i) to reflect sales or other dispositions
of assets, or any other ▇▇▇▇▇ giving rise to a Capital Account adjustment and
(ii) to reflect the fair market value at liquidation of any assets to be
distributed in kind to the Partners as if such assets had been sold.
Section 10.4 Liquidator. A Liquidator elected as herein provided shall
receive such compensation for liquidation services as may be agreed by the
Liquidator and Limited Partners holding a majority of the Percentage Interests
of the Limited Partners outstanding and entitled to
26
be voted, and may be removed at any time by written notice of removal signed by
Limited Partners holding a majority of the Percentage Interests of the Limited
Partners outstanding and entitled to be voted. Upon the death, removal or
resignation of the Liquidator, a successor and substitute Liquidator (who shall
have and succeed to all the rights, powers, and duties of the original
Liquidator) will, within thirty (30) days thereafter, be appointed by vote of a
majority in interest of the Limited Partners evidenced by written appointment
and acceptance. The right to appoint a successor or substitute Liquidator in the
manner provided herein shall be recurring and continuing for so long as the
functions and services of the "Liquidators" are authorized to continue under the
provisions hereof, and every reference herein to the "Liquidator" will be deemed
to refer also to any such successor or substitute Liquidator appointed in the
manner herein provided. Except as expressly provided in this Article X, the
---------
Liquidator appointed in the manner provided herein shall have and may exercise,
without further authorization or consent of any of the parties hereto or their
legal representatives or successors in interest, all of the powers conferred
upon the General Partner under the terms of this Agreement to the extent
necessary or desirable in the good faith judgment of the Liquidator to carry out
the duties and functions of the Liquidator hereunder for and during such period
of time as shall be reasonably required in the good faith judgment of the
Liquidator to complete the liquidation and dissolution of the Partnership as
provided for herein, including, without limiting the generality of the
foregoing, the following specific powers: (i) the power to continue to manage
and operate any business of the Partnership during the period of such
liquidation or dissolution proceedings; (ii) the power to make sales and,
incident thereto, to make deeds, bills of sale, assignments and transfers of
assets; provided, that the Liquidator may not impose personal liability upon any
of the Partners under any warranty of title contained in any such instrument;
(iii) the power to borrow funds as may, in the good faith judgment of the
Liquidator, be reasonable to pay debts and obligations of the Partnership or
operating expenses, and to grant deeds of trust, mortgages, security agreements,
pledges, and collateral assignments upon and encumbering any of the assets as
security for repayment of such loans or as security for payment of any other
indebtedness of the Partnership; provided, that the Liquidator shall not have
the power to create any personal obligation on any of the Partners to repay such
loans or indebtedness other than out of available proceeds of foreclosure or
sales of the property or assets as to which a lien or liens are granted as
security for payment thereof; (iv) the power to settle, compromise or adjust any
claims asserted to be owing by or to the Partnership; and the right to file,
prosecute or defend lawsuits and legal proceedings in connection with any such
matters; (v) the power to make deeds, bills of sale, assignments and transfers
to the respective Partners and their successors in interest incident to final
distribution of the remaining assets (if any) as provided for herein; provided,
the Liquidator may not impose personal liability upon any of the Partners or
their successors in interest under any warranty of title contained in any such
instrument.
If within thirty (30) days following the date of dissolution or other
time period provided in Section 10.1 a Liquidator or successor Liquidator has
not been appointed in the manner provided therein, any interested party shall
have the right to make application to the Senior Judge of the United States
District Court of the District in which the City of Chicago, Illinois is then
situated for appointment of such Liquidator or successor Liquidator, and the
said Judge, acting as an individual and not in his judicial capacity, shall be
fully authorized and' empowered to appoint and designate such Liquidator, or
successor Liquidator who shall have all the powers, duties, rights and
authorities of the Liquidator herein provided.
27
Section 10.5 Liquidation Statements. Each of the Partners shall be
----------------------
furnished with a statement prepared or caused to be prepared by the Liquidator
which shall set forth the disposition of assets and the discharge of liabilities
of the Partnership pursuant to liquidation. A certification canceling this
Agreement shall be filed reflecting termination of the Partnership.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Notices. Any notice, demand, offer, or communication
-------
required or permitted to be given by any provision of this Agreement shall be
deemed to have been delivered and given for all purposes:
(a) if delivered personally or by courier to the party or to an
officer of the party to whom the same is directed; or
(b) whether or not the same is actually received, if sent by
registered or certified mail or by nationally recognized delivery service such
as Federal Express, postage and charges prepaid, addressed as follows: If to
the General Partner, at the Partnership's respective office or to such other
address as such General Partner may from time to time specify by written notice
to the Limited Partners; and if to a Limited Partner, at such Limited Partner's
address set forth on Schedule A, or to such other address as such Limited
Partner may from time to time specify by written notice to the General Partner.
Any such notice shall be deemed to be given (i) as of the date so delivered, if
delivered personally or by courier to the party, or (ii) as of the second
business day following date on which the same was deposited in a regularly
maintained receptacle for the deposit of United States mail, addressed and sent
as aforesaid, or (iii) the next business day following prepaid delivery, with
paid receipt, to a nationally recognized delivery service such as Federal
Express for next business day delivery and sent as aforesaid.
Section 11.2 Law Governing. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
Section 11.3 Severability. If any provision of this Agreement is held to
------------
be illegal, invalid, or unenforceable under present or future laws effective
during the term hereof, the legality, validity, and enforceability of the
remaining provisions of this Agreement shall not be affected thereby, and in
lieu of each such illegal, invalid, or unenforceable provisions, there shall be
added automatically as a part of this Agreement a provision as similar in terms
to such illegal, invalid, or unenforceable provision as may be legal, valid and
enforceable.
Section 11.4 Section Headings and Captions. Section and other headings
-----------------------------
and captions contained in this Agreement are for reference purposes only and are
in no way intended to describe, interpret, define, amplify, or limit the scope,
extent, or intent of this Agreement or any provision hereof.
28
Section 11.5 Amendments.
----------
(a) Amendments to this Agreement may be proposed (i) by the General
Partner or (ii) by Limited Partners who are the record holders of more than
fifty percent (50%) of the Percentage Interests of the Limited Partners
outstanding. Any such amendment shall be proposed by submitting to the General
Partner and all of the Limited Partners in writing the proposed amendment and
the written recommendation of the Partner or Partners proposing the amendment.
Subject to the provisions of Sections 11.6 and 11.7 and Subsections (b) and (c)
---------------------- -----------------------
of this Section 11.5, any such amendment shall become effective only upon
------------
affirmative vote or written consent of Limited Partners who are the record
holders of 50% or more of the Percentage Interests of the Limited Partners
outstanding and entitled to be voted and the written consent of the General
Partner.
(b) No amendment (other than one entered into in connection with the
resignation, or removal of a General Partner, or the conversion of a General
Partner's interest to that of a Converted Limited Partner, as shall conform to
the provisions of this Agreement) may be made without the affirmative vote or
written consent of the General Partner affected. No amendment which changes the
limited liability status or participation in income, losses, and distributions
of any Limited Partner may be made without the affirmative vote or written
consent of such Limited Partner. In addition, no amendment shall extend the
term of the partnership beyond January 1, 2050, or shall change the Partnership
from a limited partnership to a general partnership.
Section 11.6 Meetings and Means of Voting. Meetings of the partners may
----------------------------
be called by the General Partner and shall be called upon the written request of
Limited Partners who hold at least 25% of the Percentage Interests of the
Limited Partners outstanding and entitled to be voted. The call shall state the
nature of the business to be transacted. Partners may vote in person or by
proxy at any such meeting, and shall be given written notice in the manner
proscribed in Section 11.1 hereof at least ten (10) days prior to such meeting.
------------
Any Partner may waive notice of or attendance at any meeting of the partners,
and may attend by telephone or any other electronic communication device or may
execute a signed written consent to agree to or effect any action which may be
taken at a meeting.
Section 11.7 Binding Nature of Certain Procedures. By execution of this
------------------------------------
Agreement, or by authorizing its execution on its behalf, each Limited Partner
acknowledges the binding nature of the procedures set forth herein as to the
amendment of this Agreement, dissolution of the Partnership, removal of the
General Partner or successor General Partners (and any additional General
Partners), the election of new General Partners, and sale of all or
substantially all the assets of the Partnership, and further agrees to execute
and deliver all necessary and appropriate instruments and documents and take all
necessary actions, as shall be required to effectuate the vote of the Limited
Partners amending this Agreement, dissolving the Partnership, removing such
General Partner(s), electing such General Partners, or approving the sale of
such assets in each such circumstance, regardless of the manner in which the
Percentage Interests of the Limited Partners held of record by him shall have
been voted in the consideration of such matter(s) by the Limited Partners.
29
Section 11.8 Right to Rely Upon Authority. If a Limited Partner is a
----------------------------
person other than a natural person, the Partnership and the General Partner: (a)
shall not be required to determine the authority of the person signing this
Agreement, or any amendment hereto, or make any commitment bearing upon the
existence of this authority; (b) shall not be required to see to the application
or distribution of revenues or proceeds paid or credited to the person signing
this Agreement or any amendment hereto on behalf of such entity; (c) shall be
entitled to rely on the authority of the one signing this Agreement or any
amendment hereto with respect to the voting of the interest of such entity and
with respect to the giving of consent on behalf of such entity in connection
with any matter for which consent is permissible or required hereunder; and (d)
shall be entitled to rely upon the authority of any general partner, joint
venturer, co-trustee or successor trustee, or officer (as the case may be) of
any such entity in the same manner as if such person were the person originally
signing this Agreement or any amendment hereto on behalf of such person.
Section 11.9 Successors and Assigns. This Agreement and all the terms and
----------------------
provisions hereof shall be binding upon and (subject to the provisions of
Article VIII of this Agreement) inure to the benefit of the Partners and their
------------
respective legal representatives, heirs, successors, and assigns.
Section 11.10 Counterparts. This Agreement may be executed in multiple
------------
counterparts, each of which shall be an original, but all of which shall
constitute one instrument.
Section 11.11 Modification to be in Writing. This Agreement constitutes
-----------------------------
the entire understanding of the parties hereto with respect to the subject
matter hereof and no amendment, modification, or alteration of the terms hereof
shall be binding unless the same is Section 11.5 hereof.
------------
Section 11.12 Integrated Agreement. This Agreement constitutes the entire
--------------------
understanding and agreement among the parties hereto with respect to the subject
matter hereof, and there are no agreements, understandings, restrictions,
representations or warranties among the parties other than those set forth
herein or herein provided for.
ARTICLE XII
VARIOUS ADDITIONAL RIGHTS OF THE PARTNERS
Section 12.1 Option of Niki and Platinum to Put Their Interests. In the
--------------------------------------------------
event that at any time following the Delivery Date HOB Entertainment, Inc. or
its voting equity holders (i) sells all or substantially all of its assets to
unrelated third parties; (ii) completes an Initial Public offering; or (iii)
enters into any transaction or series of transactions with a third party or a
third party group acting in concert which transfers voting control of HOB
Entertainment, Inc. or its assets to such third party or such third party group
acting in concert, the General Partner shall notify Niki and Platinum within
five (5) business days of the entry of any agreement implementing such transfers
or offerings together with any prospectus relating to the Initial Public
Offering and provide the Limited Partners with copies of all material agreements
related thereto and any and all information relative to the financial condition
and identity of the
30
transferees and such other documents as the Limited Partners may reasonably
request ("Inspection Documents"). Niki and Platinum shall, together and not
independently, have ninety (90) days from receipt of the Inspection Documents to
exercise the right to put their respective Limited Partnership interests to the
General Partner (who may designate the transferee) at a price equal to the sum
of:
(a) The amount (or deemed value, with respect to Niki) of their
respective initial Capital Contributions made to the Partnership pursuant to
Sections 3.2(a) and (b), plus any additional amounts contributed by Niki or
-----------------------
Platinum, respectively. For purposes of this Article XII, all references herein
-----------
to the amount of Niki's initial Capital Contribution to the Partnership shall be
deemed to mean $5,000,000.00 less the amount, if any, that Niki fails to
reimburse HOB for HOB Common Area Costs resulting in a forfeiture of a portion
of Niki's Percentage Interest in accordance with Section 9.6 hereof; and
(b) the greater of:
(i) the amount necessary to provide them with an internal
rate of return of twelve percent (12%) per annum on their respective
initial Capital Contributions made to the Partnership based upon quarterly
payments from the date of their initial Capital Contribution to the date of
payment; or
(ii) An amount equal to thirty-six percent (36%) of their
respective initial Capital Contributions made to the Partnership.
The option price shall be paid respectively to Niki and .Platinum within
thirty (30) days of the written election by Niki and Platinum to collectively
put their respective Limited Partnership interests to the General Partner in
accordance herewith.
Section 12.2 Option of General Partner to Purchase the Interests of Niki
-----------------------------------------------------------
and Platinum.
------------
(a) Prior to Initial Public Offering. At any time during the Term of
--------------------------------
this Partnership following the Delivery Date and prior to the completion of an
Initial Public offering by HOB Entertainment, Inc., the General Partner (or a
designee of the General Partner) shall have the option to purchase the Limited
Partnership interests of both Niki and Platinum, but only in whole, for a
purchase price as to the respective interests equal to the sum of (1) the amount
(or deemed value, with respect to Niki) of their respective initial Capital
Contributions made to the Partnership pursuant to Section 3.2(a) and (b) plus
any additional amounts contributed by Niki or Platinum to the Partnership,
respectively, And (2):
(x) with respect to Niki, the greater of:
(i) the amount necessary to provide it with an
internal rate of return of twenty-five percent (25%) per annum based upon
quarterly payments from the date of its initial Capital Contribution and
subsequent Capital Contributions, if any, to the date of payment; or
31
(ii) an amount equal to seventy-five percent (75%) of
its initial Capital Contribution made to the Partnership; or
(y) with respect to Platinum, the greater of:
(i) the amount necessary to provide it with an
internal rate of return of fifteen percent (15%) per annum based upon
quarterly payments from the date of its initial Capital Contribution and
subsequent Capital Contributions, if any, to the date of payment; or
(ii) an amount equal to forty-five percent (45%) of its
initial Capital Contribution made to the Partnership; or
(b) After Initial Public Offering. At any time during the Term of
-----------------------------
this Partnership following the Delivery Date and following the completion of an
Initial Public offering of HOB Entertainment, Inc., the General Partner (or a
designee of the General Partner) shall have the option to purchase the Limited
Partnership interests of both Niki and Platinum, but only in whole, for a
purchase price as to their respective interests equal to the greater of (1) the
price that would have been payable to Niki and Platinum had the option been
exercised and the price calculated pursuant to Section 12.2(a) above, or (2):
(x) with respect to Niki, the lesser of:
I
(i) the deemed value of its initial Capital Contribution
made to the Partnership pursuant to Section 3.2(a) plus any additional
amounts contributed by Niki to the Partnership and plus the amount
necessary to provide it with an internal rate of return of fifty percent
(50%) per annum based upon quarterly payments from the date of its initial
capital Contribution and subsequent Capital Contributions, if any, to the
date of payment; or
(ii) the trailing twelve-month Minimum and Percentage Rents
due from Tenant (annualized if less than one year from opening) multiplied
times sixty-five percent (65%) of the multiple of HOB Entertainment, Inc.
trailing annual income used to determine the initial offering price of the
publicly traded shares;
(y) with respect to Platinum, the lesser of:
(i) the amount of its initial Capital Contribution made to
the Partnership pursuant to Section 3.2(b) plus any additional amounts
--------------
contributed by Platinum to the Partnership and plus the amount necessary to
provide it with an internal rate of return of fifteen percent (15%) per
annum based upon quarterly payments from the date of its initial Capital
Contribution and subsequent Capital Contributions, if any, to the date of
payment; or
32
(ii) the trailing twelve-month Minimum and Percentage Rents
due from Tenant (annualized if less than one year from opening) multiplied
times sixty-five percent (65%) of the multiple of HOB Entertainment, Inc.
trailing annual income used to determine the initial offering price of the
publicly traded shares;
The option price to be paid pursuant to Sections 12.2 (a) or (b) shall
be paid within sixty (60) days of the written election %by the General Partner
(or its designee) to purchase the Limited Partnership interests of both Niki and
Platinum in accordance herewith. In the event that within the twelve-month
period immediately following the acquisition of the Limited Partnership
interests of Niki and Platinum pursuant to Section 12.2 (a), HOB Entertainment,
Inc. completes an Initial Public offering of its shares, then the General
Partner shall pay to Platinum and Niki, respectively, the excess, if any, of the
option price that would have been payable to Platinum and Niki as of the date of
the transfer of their Partnership interests to the General Partner had the
General Partner purchased their respective Partnership interests pursuant to
Section 12.2(b), over the option price paid to Niki and Platinum pursuant to
---------------
Section 12.2(a).
---------------
Section 12.3 Other Acts Relative to the Options. The parties agree to
----------------------------------
execute such additional documents, transfers and otherwise fully cooperate in
the transactions contemplated by the options granted herein. The parties
further agree to execute reasonable confidentiality agreements necessary to
permit the exchange of information, contemplated by this agreement. The parties
further agree not to engage in any transaction or series of transactions
designed to circumvent the options granted herein.
GENERAL PARTNER:
HOB MARINA CITY, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its: Senior Vice President
--------------------------
LIMITED PARTNERS:
NIKI DEVELOPMENT CORP., an Illinois
corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------
Its: President
--------------------------
33
PLATINUM BLUES CHICAGO L.L.C., an Illinois limited
liability company
By:
---------------------------
Name:
-------------------------
Its:
--------------------------
HOB CHICAGO, INC., a Delaware
corporation
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------
Its: Senior Vice President
--------------------------
Attachments:
Schedule A - Partners' Initial Capital Contribution
Exhibit A-1 - Property Description
Exhibit A-2 - Site Plan
Exhibit A-3 - Description of Personal Property
34
PLATINUM BLUES CHICAGO L.L.C., an Illinois limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Its: Manager
---------------------------
HOB CHICAGO, INC., a Delaware
corporation
By:
----------------------------
Name:
--------------------------
Its:
---------------------------
Attachments:
Schedule A - Partners' Initial Capital Contribution
Exhibit A-1 - Property Description
Exhibit A-2 - Site Plan
Exhibit A-3 - Description of Personal Property
35
