Exhibit 3.3
PHOENIX ASSOCIATES
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AMENDMENT TO GENERAL PARTNERSHIP AGREEMENT
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Amendment dated as of February 20, 1978 to the General Partnership
Agreement dated as of January 1, 1978 (the "Partnership Agreement") of Phoenix
Associates, a Florida partnership, among Barry Silverstein, Dennis J.
McGillicuddy and D. Stevens McVoy.
W I T N E S S E T H:
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WHEREAS, the parties hereto constitute all the General Partners of and
signatories to the Partnership Agreement; and
WHEREAS, the parties heretofore orally agreed to amend the Partnership
Agreement on February 20, 1978.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
1. ARTICLE IX of the Partnership Agreement is hereby amended in its
entirety to read as follows:
"Profit and Loss
---------------
The net profits of the PARTNERSHIP shall be divided and the net
losses shall be borne for each fiscal year according to the percentage
set forth next to each partner's name as follows:
Barry Silverstein 67.5%
Dennis J. McGillicuddy 22.5%
D. Stevens McVoy 10.0%
These percentages shall be adjusted in accordance with any proper
assignment of interest in the PARTNERSHIP."
2. In all other respects, the Partnership Agreement shall remain in full
force and effect
IN WITNESS WHEREOF, the parties hereto have signed this Amendment as of
the day and year first above written.
/s/ Barry Silverstein
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Barry Silverstein
/s/ Dennis J. McGillicuddy
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Dennis J. McGillicuddy
/s/ D. Stevens McVoy
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D. Stevens McVoy
PHOENIX ASSOCIATES
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GENERAL PARTNERSHIP AGREEMENT
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THIS GENERAL PARTNERSHIP AGREEMENT is dated as of the _____ day of January,
1978, and made, and entered into, by and between Barry Silverstein, Dennis J.
McGillicuddy and D. Stevens McVoy (as general partners),
WITNESSETH THAT:
WHEREAS, the parties hereto desire to enter into a general partnership for
the purposes hereinafter set forth; and
WHEREAS, the parties hereto desire to set forth their agreement herein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
agreements, covenants, promises, representations, warranties hereinafter set
forth, and of other good and valuable consideration, the receipt and sufficiency
of which, prior to the execution of these presents, is hereby acknowledged, the
persons intending to be legally bound hereby, agree, covenant, promise,
represent and warrant as follows:
ARTICLE I
Formation
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The parties hereto agree and do hereby form a general partnership under the
laws of the State of Florida and upon the terms and conditions hereinafter set
forth.
ARTICLE II
Name
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The name of the general partnership shall be PHOENIX ASSOCIATES
(hereinafter referred to as the "PARTNERSHIP").
ARTICLE III
Purposes
--------
The purposes of the PARTNERSHIP are (1) to purchase and otherwise acquire
promissory notes, mortgages, deeds of trust,
security agreements, conditional sales contracts, options, stock, bonds, debt
securities, and other types of securities of any kind or nature whatsoever; (2)
to purchase and otherwise acquire rights in any loan agreements or other
documents relating to the securities of the kind described above; (3) to operate
certain businesses in the communications field; (4) to engage in and carry out
the transaction, and all matters related or incidental thereto, described in
Exhibit A; and (5) to engage in any other activity not prohibited by law or this
Agreement which the majority in interest of the general partners shall deem
advisable.
ARTICLE IV
Place of Business
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The principal place of business of the PARTNERSHIP shall be located at
5111 Ocean Boulevard, Sarasota, Florida. The principal place of business and
any branch offices of the PARTNERSHIP may be located at such other places as the
PARTNERSHIP from time to time may designate.
ARTICLE V
Term
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The PARTNERSHIP shall commence on the day and year first above written
and shall continue until terminated as provided in this Agreement or by
operation of law.
ARTICLE VI
Capital Contributions
---------------------
The original capital of the PARTNERSHIP shall consist of Five Hundred
Dollars ($500.00) contributed by the partners as follows:
Barry Silverstein $400.00
Dennis J. McGillicuddy $ 50.00
D. Stevens McVoy $ 50.00
Each partner shall have his own capital account. No partner shall have
the right to withdraw or reduce his contribution to the capital of the
PARTNERSHIP except upon the consent of all of the partners, upon the voluntary
dissolution of the PARTNERSHIP in association with ARTICLE XIII hereof or upon
his withdrawal in
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accordance with ARTICLE XIV hereof. Contributions to the capital of the
PARTNERSHIP shall not bear interest.
ARTICLE VII
Management
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Decisions relating to the management and business of the PARTNERSHIP
shall be made by the majority in interest as set forth below, of the general
partners. Each general partner shall have a vote in making decisions that is
directly proportional to the percentage of the profit and loss of the
PARTNERSHIP to which he is entitled under ARTICLE IX hereof. Any decision
reached or agreement executed by the general partner or general partners
representing such a majority shall be binding, in all respects, upon all of the
other general partners. No partner shall do any act, or bind the PARTNERSHIP to
do any act, that is contrary to the Uniform Partnership Act of Florida of this
Agreement. Each of the partners shall devote such time to the business of the
PARTNERSHIP as he may deem, in his sole discretion, to be necessary.
ARTICLE VIII
Restriction on Sale of Partnership Interest
-------------------------------------------
No partner, without the consent of all other general partners, shall
sell or assign to any person not a partner herein, or create a security interest
in, pledge, hypothecate, or otherwise transfer by operation of law his
partnership interest, except on account of his withdrawal from the PARTNERSHIP
in accordance with ARTICLE XIV hereof or on account of his death, bankruptcy, or
incompetency in accordance with ARTICLE XV hereof.
ARTICLE IX
Profit and Loss
---------------
The net profits of the PARTNERSHIP shall be divided and the net losses
shall be borne for each fiscal year according to the percentage set forth next
to each partner's name as follows:
Barry Silverstein 80%
Dennis J. McGillicuddy 10%
D. Stevens McVoy 10%
These percentages shall be adjusted in accordance with any proper assignment of
interest in the PARTNERSHIP.
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ARTICLE X
Income Accounts
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In addition to a capital account, there shall be maintained for each
partner an income account, which shall be credited or charged with the net
profits and/or net losses of the PARTNERSHIP.
ARTICLE XI
Books
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The PARTNERSHIP shall keep, or cause to be kept, accurate books of account
in which all transactions of the PARTNERSHIP shall be entered. Any partner, or
his duly authorized representative, shall have the right to inspect and examine
said books and records during reasonable business hours for a reasonable period
of time.
ARTICLE XII
Bank Accounts
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All funds of the PARTNERSHIP shall be deposited in the name of the
PARTNERSHIP in such bank account or accounts as the PARTNERSHIP shall determine
from time to time. Funds may be withdrawn from any such bank account or accounts
upon such signature or signatures as the PARTNERSHIP shall designate from time
to time.
ARTICLE XIII
Voluntary Dissolution and Termination
-------------------------------------
The PARTNERSHIP may be dissolved and terminated only upon approval of all
the partners. In the event of such election to dissolve and terminate, all
partners shall be given notice thereof and the partners (or a liquidating
partner selected and authorized by them) shall proceed with reasonable
promptness to wind up the business of the PARTNERSHIP. The method of winding up
the business of the PARTNERSHIP shall be either to sell the assets of the
PARTNERSHIP, in whole or in part, or to distribute the assets in kind. The
method of winding up the business of the PARTNERSHIP and the terms of such sale
or distribution shall be only as determined by all the partners. The assets of
the PARTNERSHIP, or the money or other property resulting from the sale of such
assets, shall be distributed in the following
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order: (1) to the creditors of the PARTNERSHIP, including any partner who is a
creditor of the PARTNERSHIP; (2) to the partners, in respect of their capital
contribution; (3) to the partners in respect of their share of any undistributed
profits in their income accounts; and (4) to the partners in accordance with
their percentages of profit and loss for the fiscal year in which such
distribution occurs in respect of any remaining funds.
ARTICLE XIV
Withdrawal
----------
If any one or more but less than all of the partners desire to terminate or
withdraw from the PARTNERSHIP, they shall give notice of such desire to the
remaining partners. The partner or partners giving such notice are hereinafter
referred to as the "withdrawing partner". The withdrawing partner shall deliver
to the non-withdrawing partner or partners an offer (herein called the "Offer")
in writing stating the price at which the withdrawing partner is willing to
purchase all of the assets of the PARTNERSHIP and the terms and conditions upon
which such price shall be payable. The non-withdrawing partners shall within
sixty (60) days after receipt of such Offer elect to either: (1) purchase the
interest of the withdrawing partner at a price computed by multiplying the price
set forth in the Offer by the percentage of interest in the PARTNERSHIP of the
withdrawing partner (any down-payments and deferred payments provided for in the
Offer shall be reduced in the same proportion as the reduction of the purchase
price provided for in the preceding sentence, but otherwise the purchase price
shall be on the same terms and conditions as contained in the Offer); or (2) the
PARTNERSHIP shall sell to the withdrawing partner and the withdrawing partner
shall purchase all of the assets of the PARTNERSHIP at a price and on the terms
and conditions set forth in the Offer; or (3) if less than all of the non-
withdrawing partners elect to purchase the interest of the withdrawing partner
pursuant to subparagraph (1) above, then the non-withdrawing partners who do not
elect to purchase shall be deemed to be withdrawing partners and the offer to
sell made by the first withdrawing partner shall be deemed to have been adopted
by said non-withdrawal
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partners who have not elected to purchase. If a non-withdrawing partner fails to
give the withdrawing partner notice of its election within the time hereinabove
provided for, it shall be conclusively presumed that the non-withdrawing partner
who has failed to give such notice has elected to sell to the withdrawing
partner pursuant to subparagraph (2) above. The closing of the purchase shall be
held in a mutually convenient place in Sarasota County, Florida, at a time
agreed upon by the partners, but not more than one hundred twenty (120) days
after the receipt of the Offer by the non-withdrawing partner. The PARTNERSHIP
of the partners, as the case may be, shall convey the property or their interest
in the PARTNERSHIP by appropriate instruments to the purchasing party free and
clear of all encumbrances save those to which the purchasing party has agreed
shall continue. The purchase or sale of the assets of the PARTNERSHIP or
PARTNERSHIP interest pursuant to this paragraph shall not terminate the
PARTNERSHIP and the partner or partners acquiring said assets or interest may
continue the PARTNERSHIP or wind up its business. If either the withdrawing
partner or non-withdrawing partner pursuant to the election provided above are
to purchase the assets or interest of the other but thereafter such partner
fails to close such purchase, then the non-defaulting partner may continue the
PARTNERSHIP and/or purchase the interest in the PARTNERSHIP of the defaulting
partner at the price set forth in the Offer multiplied by the percentage of
interest in the PARTNERSHIP of the defaulting partner in the manner and in
accordance with the time schedule set forth above.
ARTICLE XV
Death, Bankruptcy, Incompetency
-------------------------------
The death, bankruptcy or incompetency of a general partner shall not
terminate the PARTNERSHIP and shall have no effect upon the continuing of the
business of the PARTNERSHIP. In the event of death or incompetency of a partner
having less than a majority in interest in the PARTNERSHIP, then the guardian
or personal representative, as the case may be, of such partner shall become a
partner in the PARTNERSHIP with the same interest
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in the profits, losses and capital of the PARTNERSHIP as possessed by the
deceased or incompetent partner at the time of death or incompetency and with
the same rights and privileges as though originally named as a partner herein.
In the event of the death, bankruptcy or incompetency of a partner having a
majority in interest in the PARTNERSHIP, then the interest of such partner shall
immediately be transferred to Dennis J. McGillicuddy to be held by him in trust
for said partner in the case of incompetency or bankruptcy of said partner or
for the party who was to receive said interest in the event of the death of said
partner. During the period that said interest is so held in trust, the affairs
of the PARTNERSHIP shall continue to be conducted in accordance with the terms
of this PARTNERSHIP, and the authority and control attendant with the majority
in interest shall be exercised by Dennis J. McGillicuddy. The conflict arising
by virtue of Dennis J. McGillicuddy holding partnership interests both for
himself and in trust is hereby acknowledged by the partners, and such conflict
shall not be grounds for disqualification of Dennis J. McGillicuddy, who shall
be subject to removal only upon proof of actual breach of his fiduciary duties.
As trustee, Dennis J. McGillicuddy shall use his best efforts to liquidate the
interest held in trust upon such terms as are fair, reasonable and proper under
the circumstances within five (5) years from the date that such interest
commenced to be so held in trust. In the event that Dennis J. McGillicuddy is
unwilling or unable to hold such interest in trust, such interest shall be
transferred in trust to such party as shall be determined by the majority of
Dennis J. McGillicuddy, Martin Thaler and Michael McGillicuddy, or by a majority
of such of them as shall then be living. The party holding said interest in
trust shall have the same powers and duties as granted herein to Dennis J.
McGillicuddy and the party holding said interest in trust, including Dennis J.
McGillicuddy, may receive compensation for services rendered to the PARTNERSHIP
or for services rendered in behalf of the interest held in trust.
ARTICLE XVI
Power of Attorney
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The general partners, by the execution hereof, jointly and
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severally, hereby irrevocably constitute and appoint those general partners that
have the authority to bind the PARTNERSHIP (in accordance with ARTICLE VII
hereof), with full power of substitution, their true and lawful
attorney-in-fact, in their name, place and stead, to make, execute, sign,
acknowledge, record and file on behalf of each of them and on behalf of the
PARTNERSHIP and and all instruments as may be deemed desirable by such general
partners authorized to bind the PARTNERSHIP (in accordance with ARTICLE VII
hereof) to carry out fully and completely the provisions of this AGREEMENT. The
grant of authority set forth above: (1) is a Special Power of Attorney coupled
with an interest; (2) is irrevocable and shall survive the death, bankruptcy,
incompetency or withdrawal of the general partner granting the power; (3) may be
exercised by any of the general partners who form part of the majority of the
general partners authorized to bind the PARTNERSHIP (in accordance with ARTICLE
VII hereof) by using a facsimile signature or by listing all of the general
partners executing any instrument with a single signature as attorney-in-fact
for all of them; and (4) shall survive any transfer of a partner's interest in
the PARTNERSHIP (whether by operation of law or otherwise).
ARTICLE XVII
Liability of the Partners
-------------------------
The partners shall not be liable, responsible or accountable, in damages or
otherwise to the PARTNERSHIP or any partner for any act, or failure to act, on
behalf of the PARTNERSHIP that is within the scope of the authority conferred on
such general partners by this Agreement or by the Uniform Partnership Act of
Florida or otherwise, unless such act or omission was performed or omitted
fraudulently or in bad faith or constituted wanton and willful misconduct or
gross negligence.
ARTICLE XVIII
Indemnification
---------------
The PARTNERSHIP shall indemnify and hold harmless any and all partners and
their agents from and against any loss, expense, damage or injury suffered or
sustained by him by reason of any
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act, omission or alleged act or omission arising out of his activities on
behalf of the PARTNERSHIP or in furtherance of the interests of the PARTNERSHIP
including, but not limited to, any judgement, award, settlement, reasonable
attorneys' fees, and other costs or expenses incurred in connection with the
defense of any actual or threatened action, proceeding, or claim and including
any payments made by any or all of the general partners to any of his attorneys
or agents; provided that the act or omission upon which such actual or
threatened action, proceeding or claim is based is not judicially determined to
have been performed or omitted fraudulently or in bad faith or as a result of
wanton and willful misconduct or gross negligence by any or all of the general
partners or their agents.
ARTICLE XIX
Fiscal Year
-----------
The fiscal year of the PARTNERSHIP shall be the calendar year.
ARTICLE XX
Miscellaneous Provisions
------------------------
(A) Any notice which is to be given in connection with the business of
the PARTNERSHIP shall be duly given if it shall be in writing and shall be
deliverable personally to the person to whom it is to be given, or if it shall
be sent by mail or telegraph, to the address of the person on whom it is to be
served or to such other address as such partner to whom it is to be given
designates.
(B) If any term or provision in this Agreement or portion thereof is
deemed to be illegal or in any way contrary to law, then such term or provision
only, or portion thereof, shall be held for naught as though such term or
provision were not contained in this Agreement, and the remaining terms and
provisions of this Agreement shall remain operative and be given full force and
effect.
(C) This Agreement shall be governed by the laws of the State of Florida.
(D) This Agreement shall be binding upon, and shall inure to the benefit
of, the partners and their executors, administrators, heirs, devisees,
successors, assigns, and other legal representatives (whether by operation of
law or otherwise).
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(E) The captions contained in this Agreement are included herein solely
for the convenience of the parties hereto and shall not be used to construe
or interpret this Agreement, or any provision thereof, in any manner whatsoever.
(F) The singular number shall include, where appropriate, the plural
number and the masculine gender shall include the feminine and neuter genders.
(G) This Agreement may be executed in any number of counterparts, each
counterpart constituting an original but all together constituting one and the
same GENERAL PARTNERSHIP AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals on
the day and year first above written.
WITNESS:
[SIGNATURE APPEARS HERE] /s/ Barry Silverstein (Seal)
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Barry Silverstein
WITNESS:
[SIGNATURE APPEARS HERE] /s/ Dennis J. McGillicuddy (Seal)
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Dennis J. McGillicuddy
WITNESS:
[SIGNATURE APPEARS HERE] /s/ D. Stevens McVoy (Seal)
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D. Stevens McVoy
STATE OF Florida
COUNTY OF Sarasota
In order that this Agreement be effective with respect to any provisions
that could be deemed trust or testamentary provisions, I hereby acknowledge that
the signature of Barry Silverstein was witnessed by each of the witnesses listed
above and that Barry Silverstein acknowledged his signature before me this
3rd day February, 1978.
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My Commission Expires: [SIGNATURE APPEARS HERE]
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Notary Public
NOTARY PUBLIC, State of Florida at Large
My Commission Expires July 29, 1978
Bonded by Auto Owners Insurance
EXHIBIT A
In December of 1977, the principals of Phoenix Associates, as well as other
parties and entities, commenced negotiations with Aetna Business Credit, Inc.,
hereinafter referred to as Aetna, for the purpose of obtaining a loan from Aetna
(and Huntington National Bank of Columbus as a participating lender) in the
amount of $4,550,000.00. It is contemplated that this loan will be closed in
February of 1978 pursuant to the terms of a General Loan and Security Agreement
to be entered into between Phoenix Associates, Aetna, Broadband Financial
Corporation, Coaxial Communications, Inc., various corporations that are
subsidiaries or affiliates of Coaxial Communications, Inc., Coaxial Associates
of Columbus I, Coaxial Associates of Columbus II, and Coaxial Communications of
Reynoldsburg, Inc. The collateral securing the contemplated loan will be, among
other things, the goods, inventory, contract rights, accounts, documents,
franchises, permits and leasehold interests owned by the Coaxial entities
indicated above and the instruments of indebtedness owned by CNA Financial
Corporation, or its subsidiaries, and Donald I. Grauer, which are secured by,
among other things, the CATV system located in and about Columbus, Ohio, and
owned by some of the Coaxial entities indicated above. Phoenix Associates is to
become the owner of the aforementioned CNA and Grauer instruments of
indebtedness pursuant to a Memorandum of Agreement to be entered into
immediately prior to or simultaneously with the closing of the aforementioned
General Loan and Security Agreement. This Memorandum of Agreement will provide
for the dismissal of litigations, the transfer of various assets to Phoenix
Associates, including, the CNA and Graver indebtedness, the payment of
$3,400,000.00 to CNA, and various other promises, representations, warranties
and agreements.