UCV, L.P.,
a California limited partnership
FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP
This FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP (the "First
Amendment") is entered into to be effective as of February 27, 2001 (the "First
Amendment Date"), by and between:
(a) UCVGP, INC., a California corporation ("UCVGP"), as the withdrawing
Managing General Partner;
(b) UCVNV, INC., a Nevada corporation ("UCVNV"), as the substitute Managing
General Partner admitted to replace UCVGP;
(c) BRANDY PROPERTIES, INC., a Missouri corporation ("BPI"), as the withdrawing
General Partner;
(d) PAS MANAGEMENT, INC., a Nevada corporation ("PAS"), as a substitute General
Partner admitted to replace BPI;
(e) SPORTS ARENAS PROPERTIES, INC., a California corporation ("SAPI"), as an
original Limited Partner holding Units; and
(f) PATRICIA A. SHENKER, a married woman as her sole and separate property
("Shenker"), as an original Limited Partner holding Units
all of whom desire to amend the existing AGREEMENT OF LIMITED PARTNERSHIP (the
"Original Instrument") of UCV, L.P., a California limited partnership (the
"Partnership") dated to be effective as of June 9, 1994 as follows:
1. Rules of Construction
1.1 Certain words and phrases in this First Amendment have their initial
letters capitalized (each a "Capitalized Term"). If the definition of a
Capitalized Term appears in the Original Instrument, such definition shall apply
to the Capitalized Term in this First Amendment unless a different definition
for such Capitalized Term is provided in this First Amendment, in which case the
definition provided in this First Amendment shall control. As set forth in
Exhibit A to the Original Instrument, the terms "Agreement", "Partnership
Agreement" and "Limited Partnership Agreement" shall include the Original
Instrument as amended by this First Amendment.
1.2 If any term or provision of this First Amendment conflicts with any
term or provision of the Original Instrument, this First Amendment shall
control.
1.3 Except as otherwise modified by this First Amendment, each term and
provision of the Original Instrument shall remain in full force and effect and
is hereby ratified and confirmed by the Partners.
2. Recitals
2.1 As of the First Amendment Date:
(a) the Partnership is intending to borrow money from CDC MORTGAGE
CAPITAL INC., a New York corporation ("CDC");
(b) to secure such borrowing, the Partnership intends to grant real
and personal property security interests to CDC; and
(c) the Partnership and CDC were negotiating the terms and provisions
of a certain draft LOAN AGREEMENT dated February 14, 2001, a copy of which
is attached hereto as Exhibit 2.2 (the "Draft Loan Agreement"), and other
documents to evidence the Partnership's rights and obligations in
connection with such borrowing.
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2.2 This First Amendment is intended to evidence, among other things:
(a) UCVGP's assignment of its interest in the Partnership to UCVNV,
UCVNV's admission as a substitute Managing General Partner and UCVGP's
withdrawal as a Managing General Partner;
(b) BPI's assignment of its interest in the Partnership to PAS, PAS's
admission as a substitute General Partner and BPI's withdrawal as a General
Partner; and
(c) the adoption of various rights, privileges, preferences and
limitations required by CDC to facilitate its proposed extension of credit
to the Partnership.
3. Substitution of UCVNV for UCVGP
-------------------------------
3.1 Immediately prior to the First Amendment Date, UCVGP assigned all of
its Partnership Interest and all of its interest in Partnership Allocations to
UCVNV in accordance with this Partnership Agreement and with the consent of all
Partners.
3.2 Effective as of the First Amendment Date, UCVGP shall be deemed to have
withdrawn from the Partnership and UCVNV shall be deemed to have been admitted
as a substitute Managing General Partner in the place and stead of UCVGP, all
with the consent of all Partners.
4. Substitution of PAS for BPI
---------------------------
4.1 Immediately prior to the First Amendment Date, BPI assigned all of its
Partnership Interest and all of its interest in Partnership Allocations to PAS
in accordance with this Partnership Agreement and with the consent of all
Partners.
4.2 Effective as of the First Amendment Date, BPI shall be deemed to have
withdrawn from the Partnership and PAS shall be deemed to have been admitted as
a substitute General Partner in the place and stead of BPI, all with the consent
of all Partners.
5. Special Purpose Bankruptcy Remote Entity Provisions
5.1 For purposes of this Article 4 of this First Amendment only, in
addition to other Capitalized Terms set forth in the Partnership Agreement,
Capitalized Terms that are defined in the Draft Loan Agreement shall have the
same respective meanings herein as set forth in the Draft Loan Agreement. If a
Capitalized Term is defined in both this Partnership Agreement and the Draft
Loan Agreement, the definition set forth in the Draft Loan Agreement shall
control.
5.2 This Article 4 of this First Amendment shall be automatically void and
without force or effect unless the Partnership consummates the transaction
contemplated under the Draft Loan Agreement on or before March 15, 2001.
5.3 Notwithstanding any other provisions of this Partnership Agreement, the
General Partners and the Partnership shall take all actions necessary to cause
the Partnership and General Partners to comply with, and will refrain from
taking any actions in violation of, the defined term "Special Purpose Bankruptcy
Remote Entity." Any substitute General Partner permitted under this Agreement
shall be required to comply with this Article 4 of this First Amendment. As used
in this Agreement, a "Special Purpose Bankruptcy Remote Entity" means a
corporation, limited partnership or limited liability company which at all times
since the First Amendment Date and at all times thereafter:
(a) was and will be organized solely for the purpose of: (1) owning the
Property which is subject to any lien or security interest securing
the Debt; or (2) acting as a general partner of the limited
partnership that owns the Property or member of the limited liability
company that owns the Property;
(b) has not engaged and will not engage in any business unrelated to: (1)
the ownership of the Property; (2) acting as general partner of the
limited partnership that owns the Property; or (3) acting as a member
of the limited liability company that owns the Property, as
applicable;
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(c) has not had and will not have any assets other than those related to
the Property or its partnership or member interest in the limited
partnership or limited liability company that owns the Property, as
applicable;
(d) has not engaged, sought or consented to and will not engage in, seek
or consent to any dissolution, winding up, liquidation, consolidation,
merger, asset sale (except as expressly permitted by the Loan
Agreement), transfer of partnership or membership interests or the
like, or amendment of its limited partnership agreement, articles of
incorporation, articles of organization, certificate of formation or
operating agreement, as applicable (except with respect to the
admission of PAS as a substitute General Partner for BPI in the
Partnership);
(e) if such entity is a limited partnership, has and will have, as its
only general partners, Special Purpose Bankruptcy Remote Entities that
are corporations;
(f) if such entity is a corporation, has and will have at least one
Independent Director (as hereinafter defined), and has not caused or
allowed and will not cause or allow the board of directors of such
entity to take any action requiring the unanimous affirmative vote of
100% of the members of its board of directors unless all of the
directors and all Independent Directors shall have participated in
such vote (the Capitalized Term "Independent Director" shall mean for
purposes of this Article 4 only an individual selected by the
Corporation and reasonably satisfactory to Lender who shall not have
been at the time of such individual's appointment as a director, does
not thereafter become and shall not have been at any time during the
preceding five years: (1) a shareholder/partner/member of, or an
officer or employee of the Corporation or any of its shareholders,
subsidiaries or Affiliates; (2) a director of any shareholder,
subsidiary or Affiliate of the Corporation other than the General
Partner; (3) a customer of, or supplier to, the Corporation or any of
its shareholders, subsidiaries or Affiliates; (4) a Person who
Controls any such shareholder, supplier or customer; or (e) a member
of the immediate family of any such
shareholder/director/partner/member, officer, employee, supplier or
customer or of any other director of the General Partner);
(g) if such entity is a limited liability company, has and will have as
its least one member that has been and will be a Special Purpose
Bankruptcy Remote Entity that has been and will be a corporation and
such corporation is the managing member of such limited liability
company;
(h) if such entity is a limited liability company, has and will have
articles of organization, a certificate of formation and/or an
operating agreement, as applicable, providing that: (1) such entity
will dissolve only upon the bankruptcy of the managing member; (2) the
vote of a majority-in-interest of the remaining members is sufficient
to continue the life of the limited liability company in the event of
such bankruptcy of the managing member; and (3) if the vote of a
majority-in-interest of the remaining members to continue the life of
the limited liability company following the bankruptcy of the managing
member is not obtained, the limited liability company may not
liquidate the Property without the consent of the applicable Rating
Agencies for as long as the Loan is outstanding;
(i) has not, and without the unanimous consent of all of its partners,
directors or members (including all Independent Directors), as
applicable, will not, with respect to itself or to any other entity in
which it has a direct or indirect legal or beneficial ownership
interest: (1) file a bankruptcy, insolvency or reorganization petition
or otherwise institute insolvency proceedings or otherwise seek any
relief under any laws relating to the relief from debts or the
protection of debtors generally; (2) seek or consent to the
appointment of a receiver, liquidator, assignee, trustee,
sequestrator, custodian or any similar official for such entity or for
all or any portion of such entity's properties; (3) make any
assignment for the benefit of such entity's creditors; or (4) take any
action that might cause such entity to become insolvent;
(j) has remained and will remain solvent and has maintained and will
maintain adequate capital in light of its contemplated business
operations;
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(k) has not failed and will not fail to correct any known misunderstanding
regarding the separate identity of such entity;
(l) has maintained and will maintain its accounts, books and records
separate from any other Person and will file its own tax returns;
(m) has maintained and will maintain its books, records, resolutions and
agreements as official records;
(n) has not commingled and will not commingle its funds or assets with
those of any other Person;
(o) has held and will hold its assets in its own name;
(p) has conducted and will conduct its business in its name;
(q) has maintained and will maintain its financial statements, accounting
records and other entity documents separate from any other Person;
(r) has paid and will pay its own liabilities, including the salaries of
its own employees, out of its own funds and assets;
(s) has observed and will observe all partnership, corporate or limited
liability company formalities, as applicable;
(t) has maintained and will maintain an arm's-length relationship with its
Affiliates;
(u) if such entity owns the Property, has and will have no indebtedness
other than the Loan and unsecured trade payables in the ordinary
course of business relating to the ownership and operation of Property
which:
(1) do not exceed, at any time, a maximum amount of one percent (1%)
of the original amount of the Principal and are paid within
thirty (30) days of the date incurred;
(2) if such entity acts as the general partner of a limited
partnership which owns the Property, has and will have no
indebtedness other than unsecured trade payables in the ordinary
course of business relating to acting as general partner of the
limited partnership which owns the Property which do not exceed,
at any time, $10,000.00 and are paid within thirty (30) days of
the date incurred; or
(3) if such entity acts as a managing member of a limited liability
company which owns the Property, has and will have no
indebtedness other than unsecured trade payables in the ordinary
course of business relating to acting as a member of the limited
liability company which owns the Property which do not exceed, at
any time, $10,000.00 and are paid within thirty (30) days of the
date incurred;
(v) has not and will not assume or guarantee or become obligated for the
debts of any other Person or hold out its credit as being available to
satisfy the obligations of any other Person except for the Loan;
(w) has not and will not acquire obligations or securities of its
partners, members or shareholders;
(x) has allocated and will allocate fairly and reasonably shared expenses,
including shared office space, and uses separate stationery, invoices
and checks;
(y) except in connection with the Loan, has not pledged and will not
pledge its assets for the benefit of any other Person;
(z) has held itself out and identified itself and will hold itself out and
identify itself as a separate and distinct entity under its own name
and not as a division or part of any other Person;
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(aa) has maintained and will maintain its assets in such a manner that it
will not be costly or difficult to segregate, ascertain or identify
its individual assets from those of any other Person;
(bb) has not made and will not make loans to any Person;
(cc) has not identified and will not identify its partners, members or
shareholders, or any Affiliate of any of them, as a division or part
of it;
(dd) has not entered into or been a party to, and will not enter into or be
a party to, any transaction with its partners, members, shareholders
or Affiliates except in the ordinary course of its business and on
terms which are intrinsically fair and are no less favorable to it
than would be obtained in a comparable arm's-length transaction with
an unrelated third party;
(ee) has and will have no obligation to indemnify its partners, officers,
directors or members, as the case may be, or has such an obligation
that is fully subordinated to the Debt and will not constitute a claim
against it in the event that cash flow in excess of the amount
required to pay the Debt is insufficient to pay such obligation; and
(ff) will consider the interests of its creditors in connection with all
corporate, partnership or limited liability actions, as applicable.
5.4 Notwithstanding any other provisions of this Agreement, so long as the
Loan is outstanding, neither the Partnership nor the General Partners shall
permit any Transfer other than a Permitted Transfer.
6. Consent to Counsel Representation
In negotiating and preparing this First Amendment, DION-KINDEM & CROCKETT
("D-K&C") represented Shenker, BPI and PAS and CRAMER & EGAN, A Professional
Corporation ("C&E") represented SAPI, UCVGP and UCVNV. Currently and in the past
both D-K&C and C&E have served as special and limited counsel to the
Partnership, the Partners or their Affiliates and may represent the Partnership,
any of the Partners or any Affiliate thereof in the future. Some or all of these
clients have interests which actually or potentially conflict with the interests
of the others. By executing and delivering this First Amendment, each Partner:
(a) acknowledges D-K&C and C&E have advised such Partner of the relevant
circumstances and the reasonably foreseeable adverse consequences of such
current and prior multiple client representation; and (b) grants such Partner's
informed written consent after disclosure to D-K&C's and C&E's representation of
their respective Partner clients in connection with this First Amendment, the
Partnership and its business.
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This FIRST AMENDMENT TO AGREEMENT OF LIMITED PARTNERSHIP is executed to be
effective as of the First Amendment Date set forth above.
SUBSTITUTED GENERAL PARTNERS:
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UCVNV: UCVNV, INC., a Nevada corporation
BY: /s/HAROLD S ELKAN
-------------------------
Harold S. Elkan, President
PAS: PAS MANAGEMENT, INC., a Nevada corporation
BY: /S/ PATRICIA A. SHENKER
-----------------------------
Patricia A. Shenker, President
WITHDRAWING GENERAL PARTNERS
UCVGP: UCVGP, INC., a California corporation
BY: /S/ HAROLD S. ELKAN
------------------------------
Harold S. Elkan, President
BPI: BRANDY PROPERTIES, INC., a Missouri corporation
BY: /S/ PATRICIA A. SHENKER
----------------------------
Patricia A. Shenker, President
LIMITED PARTNERS:
SAPI: SPORTS ARENAS PROPERTIES, INC., a California
corporation
BY: /S/ HAROLD S. ELKAN
------------------------------
Harold S. Elkan, President
Shenker: /S/ PATRICIA A. SHENKER
-------------------------
PATRICIA A. SHENKER, a married woman
as her sole and separate
property
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