EXHIBIT 10.133
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
CUTTHROAT PRODUCTIONS L.P.,
A CALIFORNI LIMITED PARTNERSHIP
This AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (the
"Agreement") is entered into and shall be effective as of the 18th day of
December, 1994, by and between Cutthroat Management Inc., a California
corporation or its Permitted Assigns ("CMI") as the General Partner, and Tele-
Communications, Inc., a Delaware corporation or its Permitted Assigns ("TCI")
and LSC+ Investments Inc., a California corporation or its Permitted Assigns
("LSC+") as the Limited Partners, pursuant to the provisions of the California
Revised Uniform Limited Partnership Act.
WHEREAS, CMI, as the general partner, and Carolco Pictures Inc. ("CPI"), a
Delaware corporation, as the limited partner, formed a limited partnership (the
"Partnership") by filing a Certificate of Limited Partnership with the
Secretary of State of the State of California on Septemberr 22, 1994; and,
WHEREAS, CPI is withdrawing as a Limited Partner of the Partnership and
TCI and LSC+ are being admittd to the Partnership as Limited Partners;
NOW, THEREFORE, the parties hereto and CPI agree as follows:
Section 1
THE PARTNERSHIP
1.1 Formation. The Partnershp has been formed as a limited
partnership pursuant to the provisions of the Act and upon the terms and
conditions set forth iin this Agreement.
1.2 Name. The name of the Partnership shall be Cutthroat
Productions L.P., and all business of the Partnership shall be conducted in
such name or, in the discretion of the General Partner, under any other name,
provided that the General Partner may change the name of the Partnership only
Business Days advance written notice to the Limited Partners.
1.3 Purpose. This Partnership has been formed in accordance with
the Co-Production Agreemen as defined in Section 1.11 for the purpose of (a)
engaging in the business of financing, producing and exploiting the Qualifyiing
Film, (b) managing, protecting and conserving the assets of the Partnership,
(c) making such additional investments and engaging in such additional business
endeavors as the Partners may unanimously agree, and (d) engaging in any and
all activities related or incidental thereto.
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1.4 Withdrawal of CPI. Upon the execution hereof, CPI, as the
original LimitedPartner, shall withdraw from the Partnership and shall,
concurrently therewith, receive a return of its capital contribution too the
Partnership in the amount of $100.
1.5 Principal Executive Offices. The principal executive offices of
th Partnership shall be at 8800 Sunset Boulevard, Los Angeles, California
90069. The General Partner may change the principal executive offices of the
Partnership to any other place within or without the State of California upon
ten (10) Business Days addvance written notice to the Limited Partners;
provided, however, that changing the principal executive offices of the
Partnership to a place outside the United States of America shall require the
consent of the Limited Partners, which consent shall notplace outside the
United States of America shall require the consent of the Limited Partners,
which consent shall not be unreasonably withheld.
1.6 Term. The term of the Partnership shall commence on the date
the certificate of limited partnership described in Section 15621 of the Act
(the te of California in accordance with the Act and shall continue until the
winding up and liquidation of the Partnership and its business is completed
following a liquidating event, as provided in Section 12.1 hereof. Prior to
the time that the Certificate is filed, no Person shall represent to third
parties the existence of the Partnership or hold itself out as a Partner.
Nothstanding anything to the contrary contained herein, neither the
bankruptcy, insolvency, dissolution or cessation of existence of the Limited
Partners or any of them, nor the occurrence of any of the events set forth in
California Corporations Code Section 15642(c) and 15642(d) shall result in the
dissolution of the Partnership prior to the Completion Date (as defined
below).
1.7 Filings; Agent for Service of Process.
(a) The General Partner shall cause the Certificate to be
filed in the office of the Secretary of State of California in accordance with
the provisions of the Act. The General Partner shall take any and all other
actions reasonably necessary to perfect and maintain the status of the
Partnership as a limited partnership under the laws of California. The
General Partner shall cause amendments to the Certificate to be filed
whenever required by the Act. Such amendments may be executed by the
General Partner or by any Person designated in the amendment as a new
General Partner.
(b) The General Partner shall execute and cause to be filed
original or amended Certificates and shall take any and all other actions as
may be reasonably necessary to perfect and maintain the status of the
Partnership as a limited partnership or similar type of entity under the
laws of any other states or jurisdictions in which the Partnership engages
in business.
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(c) The registered agent for service of process on the
Partnership shall be Cutthroat Management Inc. or any successor as appointed by
the General Partner in accordance with the Act. The registered office of the
Partnership in the state of California is located at 8800 Sunset Boulevard, Los
Angeles, California 90069.
(d) Upon the dissolution of the Partnership, the General
Partner (or, in the event there is no remaining General Partner, any Person
elected pursuant to Section 12.2 hereof) shall promptly execute and cause to be
filed certificates of dissolution in accordance with the Act and the laws of
any other states or jurisdictions in which the Partnership has filed
certificates.
1.8 Title to Property. All real and personal property owned by the
Partnership shall be owned by the Partnership as an entity and no Partner shall
have any ownership interest in such property in its individual name or right,
and each Partner's interest in the Partnership shall be personal property for
all purposes. The Partnership shall hold all of its real and personal
property, including, without limitation, the copyright in and to the Qualifying
Film and the screenplay for the Qualifying Film, in the name of the Partnership
and not in the name of any Partner.
1.9 Payments of Partner Obligations. The Partnership's credit and
assets shall be used solely for the benefit of the Partnership, and no asset of
the Partnership shall be transferred or encumbered for or in payment of any
individual obligation of any Partner.
1.10 Independent Activities; Transactions with Affiliates.
(a) The General Partner and any of its Affiliates (other than
the Limited Partners) shall be required to devote such time to the affairs of
the Partnership as may be reasonably necessary or appropriate to fulfil the
purposes of the Partnership and manage and operate the Partnership, and each
such Person, to the extent not otherwise directed by the General Partner, shall
be free to serve any other Person or enterprise in any capacity that it may deem
appropriate in its discretion.
(b) Insofar as permitted by applicable law, the General Partner
(acting on its own behalf) and the Limited Partners (each acting on its own
behalf) and each of their Affiliates may, notwithstanding this Agreement, engage
in whatever activities they choose, whether the same are competitive with the
Partnership or otherwise, without having or incurring any obligation to offer
any interest in such activities to the Partnship or any Partner and neither this
Agreement nor any activity undertaken pursuant hereto shall prevent any Partner
or its Affiliates from engaging in such activities, or require any Partner to
permit the Partnership or any Partner or its Affiliates to participate in any
such activities, and as a material part of the consideration for the execution
of this Agreement by each Partner, each Partner hereby waives,
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relinquishes, and renounces any such right or claim of participation.
(c) To the extent permitted by applicable law and except as
otherwise provided in this Agreement, the General Partner, when acting on behalf
of the Partnership, is hereby authorized to purchase property from, sell
property to, or otherwise deal with any Partner, acting on its own behalf, or
any Affiliate of any Partner, provided that all Partners consent thereto. The
Partners hereby expressly agree that the agreements listed on Exhibit D hereto
meet the terms set forth in this clause (c).
1.11 Definitions. In this Agreement and the recitals hereto the
following expressions shall have the meanings set opposite them. Terms not
defined herein shall have the meaning set forth in the Co-Production Agreement
(defined below).
ACT shall mean the California Revised Uniform Limited Partnership Act, as
it may be amended from time to time.
ADDITIONAL CAPITAL CONTRIBUTION shall mean, with respect to a Partner, any
contributions made by such Partner which are agreed to be credited to its
Capital Account as additional capital contributions pursuant to Section 2.3
hereof.
ADJUSTED CAPITAL ACCOUNT DEFICIT shall mean, with respect to any Limited
Partner, the balance, if any, in such Limited Partner's Capital Account as of
the end of the relevant fiscal year, after giving effect to the following
adjustments:
(i) Credit to such Capital Account any amounts which such Limited
Partner is obligated to restore pursuant to any provision of this Agreement or
is deemed to be obligated to restore pursuant to the penultimate sentences of
Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5); and
(ii) Debit to such Capital Account the items described in Regulations
Sections 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)(ii)(d)(5), and 1.704-
1(b)(2)(ii)(d)(6).
The foregoing definition of Adjusted Capital Account Deficit is intended
to comply with the provisions of Regulations Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
ADJUSTED INITIAL CAPITAL CONTRIBUTION shall mean, with respect to a
Limited Partner, the amount of such Limited Partner's Initial Capital
Contribution, reduced by the cumulative amount of distributions made to such
Limited Partner pursuant to Section 4.1(d) hereof and increased by the
amount of any return of such
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distributions required to be made by the Limited Partners pursuant to
Section 4.4 hereof, if any.
AFFILIATE shall have the meaning given to such term in Rule 12b-2 under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the United States Securities and Exchange Commission (or any successor
organization) promulgated thereunder; provided, however, that, for the purposes
of this Agreement Credit Lyonnais Bank Nederland N.V. and Credit Lyonnais S.A.
shall not be deemed to be "Affiliates" of the Partnership or any Partners.
AGREEMENT shall mean this Limited Partnership Agreement. by the
Partnership, including, without limitation, any insurance recoveries with
respect to the Qualifying Film. Available C Cash shall not be reduced by
depreciation, amortization, cost recovery deductions, or similar allowances, but
shall be increased by any reductions of reserves previously established.
BUDGETED NEGATIVE COST shall have the meaning set forth in the
Co-Production Agreement.
BUSINESS DAY shall mean any day other than Saturday, Sunday or any day
other than a day on ich commercial banks in Los Angeles, California are
authorized by law to be closed for business.
CAPITAL ACCOUNT shall mean, with respect to any Partner, the Capital
Account maintained for such Partner in accordance with the following provisions:
(i) To each Partner's Capital Account there shall be credited such
Partner's Capital Contributions, such Partner's distributive share of Profits
and any items in the nature of income or gain which are specially allocated
pursuant to Section 3.3 or Section 3.4 hereof, and the amount of any Partnership
liabilities assumed by such Partner or which are secured by any property
distributed to such Partner.
(ii) To each Partner's Capital Account there shall be debited
the amount of cash and the Gross Asset Value of any property distributed to such
Partner pursuant to any provision of this Agreement (except for Sections 4.1(e)
and (f)), such Partner's distributive share of Losses and any items in the
nature of expenses or losses which are specially allocated pursuant to Section
3.3 or Section 3.4 hereof, and the amount of any liabilities of such Partner
assumed by the Partnership or which are secured by any property contributed by
such Partner to the Partnership.
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(iii) In the event all or a portion of a Partnership interest is
transferred in accordance with the terms of this Agreement, the transferee shall
succeed to the Capital Account of the transferor to the extent it relates to the
transferred Partnership interest.
(iv) In determining the amount of any liability for purposes of
subsection (i) and (ii) immediately above, there shall be taken into account
Code Section 752(c) and any other applicable provisions of such Code and
Regulations issued thereunder.
The foregoing provisions and the other provisions of this Agreement
relating to the maintenance of Capital Accounts are intended to comply with
Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner