EXHIBIT 3.62
LIMITED PARTNERSHIP AGREEMENT
OF
RADIO ONE OF TEXAS, L.P.
.
.
.
CONTENTS
Page
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ARTICLE ONE
NAME OF PARTNERSHIP, PLACE,
CHARACTER OF BUSINESS AND INTEREST
1.01. Name .................................................................. 1
1.02. Registered Office and Place of Business ............................... 1
1.03. Character of Business ................................................. 1
1.04. Interest in Partnership ............................................... 2
ARTICLE TWO
TERM OF PARTNERSHIP
2.01. Term of Partnership ................................................... 2
2.02. Wind-up ............................................................... 2
ARTICLE THREE
CAPITAL CONTRIBUTIONS AND CAPITAL UNITS
3.01. Partnership Capital ................................................... 2
3.02. Capital Contributions ................................................. 2
3.03. Liability of Partners ................................................. 3
3.04. Return of Contribution ................................................ 3
3.05. Capital Accounts ...................................................... 3
3.06. Capital Account Restatement ........................................... 4
3.07. Deficit Capital Accounts .............................................. 4
ARTICLE FOUR
ALLOCATION OF INCOME, GAIN, LOSS, DEDUCTION AND CREDIT
4.01. Net Income and Net Loss ............................................... 5
4.02. Allocation of Net Income and Net Loss ................................. 6
4.03. Special Allocations ................................................... 6
i
4.04. Curative Allocations .................................................. 9
4.05. Effects of Varying General and Limited Partnership Interests During a
Partnership Year .................................................... 11
4.06. Allocation of Income, Gain, Loss and Deduction; Section 704(c) ........ 11
4.07. Allocation of Tax Items ............................................... 11
4.08. Interest, Salaries or Fees Paid to Partners ........................... 11
4.09. Definitions ........................................................... 11
4.10. Certain Interests of General Partners ................................. 12
ARTICLE FIVE
DISTRIBUTIONS
ARTICLE SIX
MANAGEMENT AND PARTNERS' DUTIES
6.01. Management of Partnership ............................................. 13
6.02. Operation of Partnership Business ..................................... 13
6.03. Control of the Business by Limited Partners ........................... 15
6.04. Limitations of General Partners ....................................... 15
6.05. Liability of the General Partners ..................................... 16
ARTICLE SEVEN
BANK ACCOUNTS, FISCAL YEAR, BOOKS, ACCOUNTING
AND ELECTIONS
7.01. Tax Elections ......................................................... 17
7.02. Other Tax Matters ..................................................... 17
7.03. Required Records ...................................................... 17
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ARTICLE EIGHT
TERMINATION AND DISSOLUTION
8.01. Priority of Dissolution ............................................... 17
8.02. Events Causing Dissolution ............................................ 18
8.03. Agreement in Event of Dissolution by Act or Event Relating to Less Than
All Partners ........................................................ 18
8.04. Designation of a General Partner ...................................... 19
8.05. Bankruptcy, Incompetency or Death of a Limited Partner ................ 19
8.06. Time to Dissolve ...................................................... 19
8.07. Date of Termination ................................................... 19
8.08. Contingent Liabilities ................................................ 20
ARTICLE NINE
AMENDMENT AND ENTIRE AGREEMENT
ARTICLE TEN
DEALINGS WITH THE PARTNERSHIP
10.01. Dealings With the Partnership ......................................... 20
10.02. Dealings Outside the Partnership ...................................... 20
10.03. Partners' Salary ...................................................... 21
10.04. Management Fee ........................................................ 21
10.05. Fiduciary Obligations ................................................. 21
ARTICLE ELEVEN
POWER OF ATTORNEY
11.01. Power of Attorney ..................................................... 21
11.02. Appointment Irrevocable ............................................... 21
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ARTICLE TWELVE
GENERAL
12.01. Notices and Registered Agent .......................................... 22
12.02. Partnership Action .................................................... 23
12.03. Certificate of Limited Partnership .................................... 23
12.04. Execution in Counterparts ............................................. 23
12.05. Titles ................................................................ 23
12.06. Applicable Law ........................................................ 23
12.07. Time of Essence ....................................................... 23
12.08. Partial Invalidity .................................................... 23
12.09. Singular and Plural ................................................... 23
12.10. General and Limited Partners .......................................... 24
12.11. Further Action ........................................................ 24
12.12. Pronouns .............................................................. 24
12.13. Partnership Obligations Binding ....................................... 24
12.14. Partition ............................................................. 24
12.15. Signatory Requirements ................................................ 24
12.16. Statutory Accountings, Etc ............................................ 24
12.17. Book Value ............................................................ 25
**********
Exhibit "3.02" List of Property and Value Thereof
Exhibit "11.01" Special Power of Attorney
iv
LIMITED PARTNERSHIP AGREEMENT
OF
RADIO ONE OF TEXAS, L.P.
THIS LIMITED PARTNERSHIP AGREEMENT (the "Agreement"), is hereby made and entered
into effective the 17th day of December, 2001, by:
1. Radio One of Texas I, LLC, a Delaware limited liability company
(hereinafter referred to as the "General Partner"); and
2. Radio One of Texas II, LLC, a Delaware limited liability company,
and those limited partners who sign a "Limited Partner Signature
Page" to this Agreement (hereinafter referred to collectively as the
"Limited Partners" and separately as a "Limited Partner").
All General Partners and Limited Partners (hereinafter referred to collectively
as the "Partners" and separately as a "Partner"), desiring to form a limited
partnership under the provisions and conditions of Delaware State Law ("Delaware
Law"), hereby state, confirm and agree as follows:
WITNESSETH:
ARTICLE ONE
NAME OF PARTNERSHIP, PLACE,
CHARACTER OF BUSINESS AND INTEREST
Section 1.01. Name. The name of the partnership shall be RADIO ONE OF
TEXAS, L.P. (hereinafter referred to as the "Partnership").
Section 1.02. Registered Office and Place of Business. The registered
office shall be: 24 Greenway Plaza, Suite 1508, Houston, Texas 77046, or at such
other place within or without the State of Texas as may from time to time be
determined by Partnership Action as defined in Section 12.02 below. The place of
business of the Partnership shall be at the registered office, or at such other
place or places within or without the State of Texas as may from time to time be
determined by Partnership Action.
Section 1.03. Character of Business. The Partnership is formed for the
principal purpose of owning and operating radio stations and any activities that
are incidental or related to that business. To those ends, the Partnership may
acquire, finance or otherwise deal with real and personal property or the
proceeds thereof. In addition, this Partnership may undertake any other lawful
act or engage in any other business or venture permitted under the Act as may
from time
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to time be determined by partnership Action.
Section 1.04. Interest in Partnership. The units of Partnership capital
held by either General or Limited Partners of the Partnership shall be personal
property for all purposes. All property owned by the Partnership, including, but
not limited to, real and personal property and tangible and intangible property,
shall be deemed to be owned by the Partnership as an entity, and no Partner,
individually or otherwise, shall have any ownership interest in such property.
ARTICLE TWO
TERM OF PARTNERSHIP
Section 2.01. Term of Partnership. The Partnership shall be formed at the
time of the filing of the initial Certificate of Limited Partnership of the
Partnership in the office of the Secretary of State of the State of Delaware (or
at any later time specified in the initial Certificate of Limited Partnership),
and shall continue until dissolved pursuant to the provisions of Article Eight
below.
Section 2.02. Wind-Up. Upon dissolution of the Partnership, the business
shall be wound up and the remaining property of the Partnership shall be
distributed and applied as provided in Article Eight below.
CAPITAL CONTRIBUTIONS AND CAPITAL UNITS
Section 3.01. Partnership Capital. The capital of the Partnership shall
consist of 100 partnership units. A Partner may be both a General Partner and a
Limited Partner of the Partnership. Although accounts shall be maintained
separately for each General Partner and for each Limited Partner, the combined
accounts of any Partner shall constitute his single capital account maintained
as required under Treas. Reg. Section 1.704-1(b).
Section 3.02. Capital Contributions. Each of the Partners shall contribute
to the initial capital of the Partnership and the initial capital accounts of
each Partner shall equal the amount specified opposite the Partner's name in
cash or the fair market value of property (net of liabilities securing such
contributed property that the Partnership is considered to assume or take
subject to under Section 752 of the Internal Revenue Code of 1986, as amended
(the "Code")). For each One Hundred Dollars ($100.00) of value contributed to
the Partnership upon its formation, each Partner shall be allocated one (1)
Partnership unit. Each of the Partners shall be allocated the number of units of
Partnership capital specified below:
2
Ownership
Contribution Units Percentage
------------ ----- ------------
GENERAL PARTNERS
Radio One of Texas I, LLC $ 100.00 1 1%
LIMITED PARTNERS
Radio One of Texas II, LLC $ 9,900.00 99 99%
------------ -----
TOTALS $ 10,000.00 100 100%
============ ===== ===
The initial capital accounts of such Partners shall be credited accordingly. A
list of all property which is contributed pursuant to this Section 3.02 and
value thereof shall be shown on Exhibit "3.02" which is attached hereto and
incorporated herein by reference.
Section 3.03. Liability of Partners. In addition to a Partner's capital
contribution, each General Partner shall be personally liable for the
obligations of the Partnership. Such liability as between General Partners shall
be in the proportion which the number of capital units held by each General
Partner bears to the total number of capital units held by all General Partners
at that time. Except as otherwise provided in this Agreement, a Limited
Partner's liability for the obligations of the Partnership shall be limited to
the aggregate amount of the Limited Partner's agreed upon contribution to the
Partnership.
Section 3.04. Return of Contribution. No Partner General or Limited, shall
have any right to the return or withdrawal of said Partner's capital
contributions, until termination of the Partnership, unless such withdrawal is
consented to by all other Partners or otherwise provided for herein or by law.
Except as otherwise provided in this Agreement, the General Partners shall not
be personally liable for the return of all or any portion of the contributions
of the Limited Partners, it being understood and agreed that any such return
shall be made solely from Partnership assets.
Section 3.05. Capital Accounts. The appropriate capital account of each
Partner shall be determined and maintained in accordance with the rules of
Treas. Reg. Section 1.704-1(b)(2)(iv) and the appropriate initial capital
account of each Partner shall be increased by (a) the amount of each Partner's
additional cash capital contribution, (b) the fair market value of any
additional property contributed by the Partner to the Partnership (net of
liabilities securing such contributed property that the Partnership is
considered to assume or take subject to under Section 752 of the Code) and (c)
allocations to the Partner of Partnership income and gain (or items thereof,
including income and gain exempt from tax and income and gain described in
Treas. Reg. Section
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1.704-1(b)(2)(iv)(g), but excluding income and gain described in Treas. Reg.
Section 1.704-1(b)(4)(i); and decreased by (d) the amount of cash distributed to
the Partner by the Partnership, (e) the fair market value of property
distributed to the Partner by the Partnership (net of liabilities securing such
distributed property that such Partner is considered to assume or take subject
to under Section 752 of the Code), (f) allocations to the Partner of
expenditures of the Partnership described in Section 705(a)(2)(B) of the Code,
and (g) allocations of Partnership loss and deduction (or item thereof),
including loss and deduction described in Treas. Reg. Section
1.704-1(b)(2)(iv)(g), but excluding items described in subparagraph (f) of this
Section and loss or deduction described in Treas. Reg. Section 1.704-1(b)(4)(i)
or (iii); provided, however, that each Partner's capital account shall be
otherwise adjusted as required by Treas. Reg. Section 1.704-1(b)(2)(iv). Each
Partner who has more than one interest in the Partnership shall have a single
capital account that reflects all such interests as required by Treas. Reg.
Section 1.704-1(b).
Section 3.06. Capital Account Restatement. The appropriate capital
accounts of the Partners shall be restated in the event that additional
contributions are made to the Partnership, Partnership property is distributed
to a Partner, a new Partner is admitted to the Partnership, a Partner withdraws
from the Partnership, the Partnership is dissolved or in any other event as the
General Partners deem appropriate; provided, however, that a capital account
restatement shall be effected in such manner and at such time as required by
Section 704(b) of the Code. The appropriate capital accounts shall be restated
by (a) determining the fair market value of all Partnership assets (taking
Section 7701(g) of the Code into account) as of the date of such restatement,
(b) allocating any unrealized income, gain, loss or deduction inherent in such
assets (that has not been reflected previously in the capital accounts) among
the Partners as if there were a taxable disposition of such assets for their
fair market value as of the date of such restatement, (c) making any adjustment
required in accordance with Treas. Reg. Section 1.704-1(b)(2)(iv)(g) for
allocations to the Partners of depreciation, depletion, amortization and gain or
loss, as computed for book purposes, with respect to such assets, and (d)
determining the Partner's distributive share of depreciation, depletion
amortization, and gain or loss, as computed for tax purposes, with respect to
such assets so as to take into account the variation between the adjusted tax
basis and Book Value (as defined in Section 12.17) of such property in the same
manner as required by Section 704(c) of the Code.
Section 3.07. Deficit Capital Accounts. A deficit in the capital account
of a General Partner (but not a Limited Partner) shall be deemed to create a
debt from such General Partner to the Partnership in the event of the
dissolution of the Partnership as provided in Article Eight below.
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ARTICLE FOUR
ALLOCATION OF INCOME, GAIN, LOSS, DEDUCTION AND CREDIT
Section 4.01. Net Income and Net Loss. The terms "Net Income" or "Net
Loss," as the case may be, of the Partnership shall mean the Partnership's
taxable income or taxable loss for Federal income taxation purposes as
determined by the accountants then employed by the Partnership in accordance
with Section 703(a) of the Code, with the items required to be separately stated
by Section 703(a)(1) of the Code combined into a single net amount; provided,
however, that in the event the taxable income or taxable loss of the Partnership
for such fiscal year is later adjusted in any manner, as a result of an audit by
the Internal Revenue Service (the "Service") or otherwise, then the taxable
income or taxable loss of the Partnership shall be adjusted to the same extent.
"Net Income" and "Net Loss" shall be further adjusted as follows:
a. "Net Income" and "Net Loss," as the case may be, shall be adjusted
to treat items of tax-exempt income described in Section
705(a)(1)(B) of the Code as items of gross income, and to treat as
deductible items all non-deductible, non-capital expenditures
described in Section 705(a)(2)(B) of the Code, including any items
treated under Treas. Reg. Section 1.704-1(b)(2)(iv) as items
described in Section 705(a)(2)(B) of the Code.
b. In lieu of depreciation, depletion, cost recovery and amortization
deductions allowable for Federal income taxation purposes to the
Partnership with respect to property contributed to the Partnership
by a Partner, there shall be taken into account an amount equal to
the product derived by multiplying the Book Value (as defined in
Section 12.17) of such property at the beginning of such fiscal year
by a fraction, the numerator of which is the amount of depreciation,
depletion, cost recovery or amortization deductions allowable with
respect to such property for Federal income taxation purposes and
the denominator of which is the adjusted basis for Federal income
taxation purposes of such property at the beginning of such fiscal
year.
c. In lieu of actual gain or loss recognized by the Partnership for
Federal income taxation purposes as a result of the sale or other
disposition of property of the Partnership, there shall be taken
into account the gain or loss that would have been recognized by the
Partnership for Federal income taxation purposes if the Book Value
(as defined in Section 12.17) of such property as of the date sold
or otherwise disposed of by the Partnership were its adjusted basis
for Federal income taxation purposes.
5
Section 4.02. Allocation of Net Income and Net Loss. After giving effect
to the special allocations set forth in Sections 4.03, 4.04 and 4.06 hereof:
a. Net Income. Net Income for the fiscal year shall be allocated in the
following order of priority:
i. First, one hundred percent (100%) to the General Partners, in
proportion to which the number of capital units held by each
General Partner bears to the total number of capital units
held by all General Partners, until aggregate Net Income
allocated to the General Partners under this Section
4.02(a)(i) for such fiscal year and all previous fiscal years
is equal to the aggregate losses allocated to the General
Partners pursuant to Section 4.02(b)(ii) for all prior fiscal
years; and
ii. Second, the balance, if any, to all Partners, in proportion to
which the number of capital units held by each Partner bears
to the total number of capital units held by all Partners.
b. Net Loss. Net Loss for the fiscal year shall be allocated in the
following order of priority:
i. First, one hundred percent (100%) shall be allocated among all
the Partners, in proportion to which the number of capital
units held by each Partner bears to the total number of
capital units held by all Partners, to the extent that such
allocation would not cause the Limited Partners to have
Adjusted Capital Account Deficits at the end of such fiscal
year; and
ii. Second, the balance, if any, shall be allocated among all the
General Partners, in proportion to which the number of capital
units held by each General Partner bears to the total number
of capital units held by all General Partners.
Section 4.03. Special Allocations. The following special allocations shall
be made in the following order:
a. Minimum Gain Chargeback. Notwithstanding any other provision of this
Article Four, if there is a net decrease in Partnership Minimum Gain
during any Partnership fiscal year, each General Partner, Limited
Partner and assignee or transferee of a partnership interest shall
be specially allocated items of Partnership income and gain for such
fiscal year (and, if necessary, subsequent years) in an amount equal
to the greater of (i) the portion of such General Partner's, Limited
Partner's or assignee's or transferee's share of the net decrease in
Partnership Minimum Gain, determined in accordance with Treas. Reg.
Section
6
1.704-2(g)(1) that is allocable to the disposition of Partnership
property subject to nonrecourse liabilities (as defined in Treas.
Reg. Section 1.704-2(b)(3)), determined in accordance with Treas.
Reg. Section 1.704-2(d), or (ii) if such General Partner, Limited
Partner or assignee or transferee of a partnership interest would
otherwise have an Adjusted Capital Account Deficit at the end of
such year, an amount sufficient to eliminate such Adjusted Capital
Account Deficit. Allocations pursuant to the previous sentence shall
be made in proportion to the respective amounts required to be
allocated to each General Partner, Limited Partner and assignee or
transferee of a partnership interest pursuant thereto. The items to
be so allocated shall be determined in accordance with Treas. Reg.
Section 1.704-2(f). This Section 4.03(a) is intended to comply with
the minimum gain chargeback requirement in such Section of the
Regulations and shall be interpreted consistently therewith. To the
extent permitted by such Section and only for the purposes of this
Section 4.03(a), each General Partner's, Limited Partner's and
assignee's or transferee's Adjusted Capital Account Deficit shall be
determined prior to any other allocations pursuant to this Article
Four with respect to such fiscal year and without regard to any net
decrease in Partner Minimum Gain during such fiscal year.
b. Partner Minimum Gain Chargeback. Notwithstanding any other provision
of this Article Four except Section 4.03(a), if there is a net
decrease in Partner Minimum Gain attributable to a Partner
Nonrecourse Debt during any Partnership fiscal year, each General
Partner, Limited Partner or assignee or transferee of a partnership
interest who has a share of the Partner Minimum Gain attributable to
such Partner Nonrecourse Debt, determined in accordance with Treas.
Reg. Section 1.704-2(i)(5), shall be specially allocated items of
Partnership income and gain for such year (and, if necessary,
subsequent years) in an amount equal to the greater of (i) the
portion of such General Partner's, Limited Partner's or assignee's
or transferee's share of the net decrease in Partner Minimum Gain
attributable to such Partner Nonrecourse Debt, determined in
accordance with Treas. Reg. Section 1.704-2(i)(5), that is allocable
to the disposition of Partnership property subject to such Partner
Nonrecourse Debt, determined in accordance with Treas. Reg. Section
1.704-2(i)(4), or (ii) if such General Partner, Limited Partner or
assignee or transferee of a partnership interest would otherwise
have an Adjusted Capital Account Deficit at the end of such year, an
amount sufficient to eliminate such Adjusted Capital Account
Deficit. Allocations pursuant to the previous sentence shall be made
in proportion to the respective amounts required to be allocated to
each General Partner, Limited Partner and assignee or transferee of
a partnership interest pursuant thereto. The items to be so
allocated shall be determined in accordance with Treas. Reg. Section
1.704-2(i)(4). This Section 4.03(b) is intended to comply with the
minimum gain chargeback requirement in such Section and shall be
interpreted consistently therewith. Solely for the purposes of this
Section 4.03(b), each General Partner's, Limited Partner's,
assignee's or transferee's Adjusted Capital Account Deficit shall be
determined prior to any other allocations pursuant to this Article
Four with respect to such fiscal year, other
7
than allocations pursuant to Section 4.03(a) hereof.
c. Qualified Income Offset. In the event any Limited Partner or
assignee or transferee of a limited partnership interest
unexpectedly receives any adjustments, allocations, or distributions
described in Treas. Reg. Section 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), items of
Partnership income and gain shall be specially allocated to each
such Limited Partner or assignee or transferee of a limited
partnership interest in an amount and manner sufficient to
eliminate, to the extent required by Treas. Reg. Section
1.704-1(b)(2)(ii)(d), the Adjusted Capital Account Deficit of such
Limited Partner or assignee or transferee of a limited partnership
interest as quickly as possible, provided that an allocation
pursuant to this Section 4.03(c) shall be made only if and to the
extent that such Limited Partner or assignee or transferee of a
limited partnership interest would have an Adjusted Capital Account
Deficit after all other allocations provided for in this Article
Four have been tentatively made as if this Section 4.03(c) were not
in the Agreement.
d. Gross Income Allocation. In the event any Limited Partner or
assignee or transferee of a limited partnership interest has a
deficit capital account at the end of any Partnership fiscal year
which is in excess of the sum of (i) the amount such Limited Partner
or assignee or transferee of a limited partnership interest is
obligated to restore pursuant to any provision of this Agreement,
and (ii) the amount such Limited Partner or assignee or transferee
of a limited partnership interest is deemed to be obligated to
restore pursuant to the penultimate sentences of Treas. Regs.
Sections 1.704 2(g)(1) and 1.704-2(i)(5), each such Limited Partner
or assignee or transferee of a limited partnership interest shall be
specially allocated items of Partnership income and gain in the
amount of such excess as quickly as possible, provided that an
allocation pursuant to this Section 4.03(d) shall be made only if
and to the extent that such Limited Partner or assignee or
transferee of a limited partnership interest would have a deficit
capital account in excess of such sum after all other allocations
provided for in this Article Four have been tentatively made as if
Section 4.03(c) above and this Section 4.03(d) were not in the
Agreement.
e. Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year
or other period shall be specially allocated as provided in Section
4.02(a)(ii) above,
f. Partner Loan Nonrecourse Deductions. Any Partner Loan Nonrecourse
Deductions for any fiscal year or other period shall be specially
allocated to the Partner or assignee or transferee of a partnership
interest who bears the economic risk of loss with respect to the
Partner Nonrecourse Debt to which such Partner Loan Nonrecourse
Deductions are attributable in accordance with Treas. Reg. Section
1.704-2(i).
8
g. Section 754 Adjustments. To the extent Treas. Reg. Section
1.704 -(b)(2)(iv)(m) requires an adjustment to the adjusted tax
basis of any Partnership asset pursuant to Code Section 734(b) or
Code Section 743(b) to be taken into account in determining capital
accounts, the amount of such adjustment to the capital accounts
shall be treated as an item of gain (if the adjustment increases the
basis of the asset) or loss (if the adjustment decreases such basis)
and such gain or loss shall be specially allocated to the Partners
and assignees or transferees of a partnership interest in a manner
consistent with the manner in which their capital accounts are
required to be adjusted pursuant to such Section of the Regulations.
Section 4.04. Curative Allocations
a. The "Regulatory Allocations" consist of the "Basic Regulatory
Allocations," as defined in Section 4.04(b) hereof, the "Nonrecourse
Regulatory Allocations," as defined in Section 4.04(c) hereof, and
the "Partner Nonrecourse Regulatory Allocations," as defined in
Section 4.04(d) hereof.
b. The "Basic Regulatory Allocations" consist of (i) allocations
pursuant to Section 4.02(b)(ii) hereof, and (ii) allocations
pursuant to Sections 4.03(c), 4.03(d), and 4.03(g) hereof.
Notwithstanding any other provision of this Agreement, other than
the Regulatory Allocations, the Basic Regulatory Allocations shall
be taken into account in allocating items of income, gain, loss and
deduction among the General Partners, Limited Partners and assignees
or transferees of a partnership interest so that, to the extent
possible, the net amount of such allocations of other items and the
Basic Regulatory Allocations to each General Partner, Limited
Partner and assignee or transferee of a partnership interest shall
be equal to the net amount that would have been allocated to each
such General Partner, Limited Partner and assignee or transferee of
a partnership interest if the Basic Regulatory Allocations had not
occurred. For purposes of applying the foregoing sentence,
allocations pursuant to this Section 4.04(b) shall only be made with
respect to allocations pursuant to Section 4.03(g) hereof to the
extent the General Partner or General Partners reasonably determine
that such allocations will otherwise be inconsistent with the
economic agreement among the parties to this Agreement.
c. The "Nonrecourse Regulatory Allocations" consist of all allocations
pursuant to Sections 4.03(a) and 4.03(e) hereof. Notwithstanding any
other provision of this Agreement, other than the Regulatory
Allocations, the Nonrecourse Regulatory Allocations shall be taken
into account in allocating items of income, gain, loss and deduction
among the General Partners, Limited Partners and assignees or
transferees of a partnership interest so that, to the extent
possible, the net amount of such allocations of other items and the
Nonrecourse Regulatory Allocations to each General Partner, Limited
Partner and assignee or transferee of a partnership interest shall
be equal to the net amount that would have been allocated to each
such General Partner, Limited Partner and assignee or transferee of
a partnership
9
interest if the Nonrecourse Regulatory Allocations had not occurred.
For purposes of applying the foregoing sentence (i) no allocations
pursuant to this Section 4.04(c) shall be made prior to the
Partnership fiscal year during which there is a net decrease in
Partnership Minimum Gain, and then only to the extent necessary to
avoid any potential economic distortions caused by such net decrease
in Partnership Minimum Gain, and (ii) allocations pursuant to this
Section 4.04(c) shall be deferred with respect to allocations
pursuant to Section 4.03(e) hereof to the extent the General Partner
or General Partners reasonably determine that such allocations are
likely to be offset by subsequent allocations pursuant to Section
4.03(a) hereof.
d. The "Partner Nonrecourse Regulatory Allocations" consist of all
allocations pursuant to Sections 4.03(b) and 4.03(f) hereof.
Notwithstanding any other provision of this Agreement, other than
the Regulatory Allocations, the Partner Nonrecourse Regulatory
Allocations shall be taken into account in allocating items of
income, gain, loss and deduction among the General Partners, Limited
Partners and assignees or transferees of a partnership interest so
that, to the extent possible, the net amount of such allocations of
other items and the Partner Nonrecourse Regulatory Allocations to
each General Partner, Limited Partner and assignee or transferee of
a partnership interest shall be equal to the net amount that would
have been allocated to each such General Partner, Limited Partner
and assignee or transferee of a partnership interest if the Partner
Nonrecourse Regulatory Allocation had not occurred. For purposes of
applying the foregoing sentence (i) no allocations pursuant to this
Section 4.04(d) shall be made with respect to allocations pursuant
to Section 4.03(f) relating to a particular Partner Nonrecourse Debt
prior to the Partnership fiscal year during which there is a net
decrease in Partner Minimum Gain attributable to such Partner
Nonrecourse Debt, and then only to the extent necessary to avoid any
potential economic distortions caused by such net decrease in
Partner Minimum Gain, and (ii) allocations pursuant to this Section
4.04(d) shall be deferred with respect to allocations pursuant to
Section 4.03(f) hereof relating to a particular Partner Nonrecourse
Debt to the extent the General Partner or General Partners
reasonably determine that such allocations are likely to be offset
by subsequent allocations pursuant to Section 4.03(b) hereof.
e. The General Partner or General Partners shall have reasonable
discretion, with respect to each Partnership fiscal year, to (i)
apply the provisions of Sections 4.04(b), 4.04(c) and 4.04(d) hereof
in whatever order is likely to minimize the economic distortions
that might otherwise result from the Regulatory Allocations, and
(ii) divide all allocations pursuant to Section 4.04(b), 4.04(c) and
4.04(d) hereof among the Partners in a manner that is likely to
minimize such economic distortions.
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Section 4.05. Effects of Varying General and Limited Partnership Interests
During a Partnership Year. In the event a Partner's interest as a General or
Limited Partner varies during any fiscal year of the Partnership (whether by
reason of withdrawal, additional capital contributions or otherwise), Net Income
and Net Loss shall be computed and allocated in accordance with this Agreement
as if periods between such variations were each a separate fiscal year of the
Partnership.
Section 4.06. Allocation of Income, Gain, Loss and Deduction; Section
704(c). Upon the sale of any property contributed by any Partner, the gain or
loss represented by the difference between the adjusted basis for Federal income
taxation purposes and Book Value of the property to the Partnership shall be
allocated to the Partner who contributed such property, and the gain or loss in
excess of that so allocated shall be allocated among the Partners as provided in
Sections 4.01, 4.02, 4.03 and 4.04 above. In addition, any other item of income,
gain, loss or deduction with respect to such property shall be allocated in a
manner consistent with the requirements of Section 704(c) of the Code and Treas.
Reg. Section 1.704-1(b)(2)(iv)(g), as amended from time to time.
Section 4.07. Allocation of Tax Items. All items of depreciation, gain,
loss, deduction or credit that are taken into account in determining Net Income
or Net Loss, shall be allocated among the Partners in the same proportion as is
provided in this Article Four.
Section 4.08. Interest, Salaries or Fees Paid to Partners. Any interest
paid on loans made by Partners to the Partnership pursuant to the terms of this
Agreement and all salaries and fees paid to any Partner, if any, shall be
deducted from gross income for Partnership book and tax purposes.
Section 4.09. Definitions. Capitalized words and phrases used in this
Article Four have the following meanings:
a. Adjusted Capital Account Deficit means, with respect to any Limited
Partner, the deficit 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 sentence of Treas. Reg. Section
1.704-2(g)(1) or would be deemed obligated to restore if
Partner Loan Nonrecourse Deductions were treated as
Nonrecourse Deductions; and
ii. Debit to such capital account the items described in Treas.
Reg. Section 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 Treas. Reg. Section
1.704-1(b)(2) (ii)(d) and shall be interpreted consistently
therewith.
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b. Nonrecourse Deductions has the meaning set forth in Treas. Reg.
Section 1.704-2(c). The amount of Nonrecourse Deductions for a
Partnership fiscal year equals the net increase, if any, in the
amount of Partnership Minimum Gain during that fiscal year,
determined according to the provisions of Treas. Reg. Section
1.704-2(c).
c. Partner Loan Nonrecourse Deductions has the meaning set forth in
Treas. Reg. Section 1.704-2(i)(2). The amount of Partner Loan
Nonrecourse Deductions with respect to a Partner Nonrecourse Debt
for a Partnership fiscal year equals the excess, if any, of the net
increase, if any, in the amount of Partner Minimum Gain attributable
to such Partner Nonrecourse Debt during that fiscal year over the
aggregate amount of any distributions during that fiscal year to the
General Partners, Limited Partners, or assignees or transferees of a
partnership interest that bear the economic risk of loss for such
Partner Nonrecourse Debt to the extent such distributions are from
the proceeds of such Partner Nonrecourse Debt and are allocable to
an increase in Partner Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with Treas. Reg. Section
1.704-2(i)(2).
d. Partner Minimum Gain means an amount, with respect to each Partner
Nonrecourse Debt, equal to the Partnership Minimum Gain that would
result if such Partner Nonrecourse Debt were treated as a
nonrecourse liability (as defined in Treas. Reg. Section
1.704-2(b)(3)), determined in accordance with Treas. Reg. Section
1.704-2(i).
e. Partner Nonrecourse Debt has the meaning set forth in Treas. Reg.
Section 1.704-2(b)(4).
f. Partnership Minimum Gain has the meaning set forth in Treas. Reg.
Section 1.704-2(d).
g. Regulations means the regulations promulgated under the Code, as
such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
h. Service means the Internal Revenue Service.
Section 4.10. Certain Interests of General Partners. Notwithstanding
anything to the contrary that may be expressed or implied in this Agreement, the
interests of all General Partners, taken together, in each material item of
Partnership income, gain, loss, deduction or credit is equal to at least one
percent (1%) of each such item at all times during the existence of the
Partnership. In determining the General Partners' interests in such items, both
the limited and general partnership units owned by the General Partners may be
taken into account.
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ARTICLE FIVE
DISTRIBUTIONS
Distributions by the Partnership to the Partners shall be made when and as
determined by the General Partner.
ARTICLE SIX
MANAGEMENT AND PARTNERS' DUTIES
Section 6.01. Management of Partnership. The General Partners shall be
responsible for conducting the business and operations of the Partnership and
each General Partner shall devote so much attention, skill and energies to the
business and operations of the Partnership as may be reasonable and/or necessary
to promote adequately the interests of the Partnership and the mutual interest
of all Partners.
Section 6.02. Operation of Partnership Business. All decisions and
determinations respecting the operation of the Partnership, its business or
properties shall be made or taken by Partnership Action and the General Partners
shall have the exclusive right and authority to manage, conduct and operate the
business of the Partnership. Specifically, but not by way of limitation, upon
authorization by Partnership Action, the General Partners and the Partnership
shall have the right, power and authority to do or cause to be done any and all
acts deemed by the General Partners to be necessary or appropriate including,
without limitation, the right, power and authority:
a. To borrow money for the Partnership and to issue notes, debentures
and any other debt securities of the Partnership, to mortgage, or
subject to any other security instrument or lien, any or all of the
property of the Partnership, and to repay, refinance, modify,
consolidate or extend any loan and any mortgage or other security
instrument or lien;
b. To acquire or enter into any contract of insurance for the
protection of the Partnership, for the conservation of Partnership
assets, or for any other purpose convenient or beneficial to the
Partnership;
c. To pay, either directly or by reimbursement, the General Partners or
others, for all operating costs and general administrative expenses;
d. To settle, compromise, arbitrate or otherwise adjust claims in favor
of or against the Partnership, on such terms and in such manner as
the General Partners may determine, and similarly to prosecute,
settle or defend litigation with respect to the Partners, the
Partnership or any assets of the Partnership;
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e. To execute, acknowledge, swear to and deliver any contract, note,
deed, mortgage, assignment, lease, agreement, check, draft, bill of
sale or other document or instrument which the General Partners deem
necessary to effectuate and exercise the rights and powers
possessed;
f. To invest any excess funds of the Partnership in savings accounts,
in federally insured financial institutions, in certificates of
deposit issued by federally insured financial institutions, in short
term interest bearing obligations of publicly held corporations,
state and local governments and the United States, and money market
funds;
g. To make any and all elections required or permitted to be made by
the Partnership under the Code and take such action, execute and
deliver such documents and to perform such acts as provided in
Section 7.02 below;
h. To admit a person as an additional or substitute Limited Partner or
as an additional or substitute General Partner as otherwise provided
by this Agreement;
i. To obligate the Partnership to incur debts in the ordinary course of
the business of the Partnership;
j. To enter into any agreement for the sharing of profits or any joint
venture with any person or entity;
k. To manage, lease, sell and otherwise deal with and use Partnership
assets at such price, rental or amount, in the form of cash,
securities, or other property, and upon such terms and conditions,
as the General Partners may determine;
l. To let or lease all or any portion of any of the assets of the
Partnership, whether or not the terms of said leases extend beyond
the termination date of the Partnership and whether or not any
portion of the assets so leased are to be occupied by the lessee,
or, in turn, subleased in whole or part to others for such
consideration and on such terms as the General Partners may
determine;
m. To sell, assign, convey or otherwise dispose of for such
consideration and upon such terms and conditions as the General
Partners may determine, all or any part of the property of the
Partnership, and in connection therewith to execute and deliver such
instruments as the General Partners may determine;
n. To employ on behalf of the Partnership agents, employees,
accountants, lawyers, consultants, real estate managers, brokers and
such other persons, as the General Partners may deem necessary or
appropriate, and to pay therefor such remuneration to pay therefor
such remuneration as the General Partners may deem reasonable and
appropriate;
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o. To purchase, lease, acquire or obtain the use of machinery,
equipment, tools, materials and all other kinds and types of real or
personal property that may in any way be deemed necessary or
appropriate for the conduct of the business of the Partnership;
p. To designate from among themselves a Managing Partner who shall
exercise such rights and powers and undertake such duties as may be
delegated to the Managing Partner by the General Partners or as are
specified in this Agreement; and
q. To take such other action, execute and deliver such other documents
and perform such other acts as may be necessary or appropriate for
the conduct of the business and affairs of the Partnership and to
possess and enjoy all of the rights and powers of a general partner
as provided by the Act.
Section 6.03. Control of the Business by Limited Partners. In no event
shall a Limited Partner (except one who may also be a General Partner, and then
only in his capacity as a General Partner and within the scope of his authority
under this Agreement) be permitted to participate in the control of the business
of the Partnership. For this purpose, a Limited Partner does not participate in
the control of the business of the Partnership solely by doing one (1) or more
of the enumerated powers set forth under Delaware State Law. In addition, the
reference to the enumeration of the powers set forth under Delaware State Law is
not intended, and shall not be construed, to create any greater liability for
the obligations of the Partnership than is imposed upon a Limited Partner by
Delaware State Law.
Section 6.04. Limitations of General Partners. The General Partners shall
not have any right, power or authority without the prior written consent of all
Partners:
a. To do any act in contravention or violation of this Agreement or the
Certificate of Limited Partnership;
b. To do any act which would make it impossible to carry on the
business of the Partnership;
c. To confess a judgment against the Partnership;
d. To possess any Partnership property, or assign the rights of the
Partners in the specific Partnership property, for other than a
Partnership purpose;
e. To assign the Partnership property or assets in trust for creditors
or on the basis of an assignee's promise or undertaking to pay the
debts or obligations of the Partnership; or
f. To cause the Partnership to make loans to the General Partners or to
commingle Partnership funds with the funds of others.
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Section 6.05. Liability of the General Partners. As among the Partners,
and except for losses caused by the fraud of the General Partners, no personal
liability shall be imposed upon the General Partners with respect to any of the
obligations and duties imposed upon them by the terms of this Agreement, or with
respect to the liabilities of the Partnership. The liabilities of the General
Partners arising from their performance of those obligations and duties imposed
upon them by the terms of this Agreement and the liabilities of the Partnership
shall be enforced and satisfied only out of the assets of the Partnership. The
Partnership shall indemnify and save harmless the General Partners from any loss
or damage incurred by reason of any act performed by them for and on behalf of
the Partnership and in furtherance of its interests unless such act constituted
gross negligence, willful or wanton misconduct, or intentional malfeasance.
ARTICLE SEVEN
BANK ACCOUNTS, FISCAL YEAR, BOOKS, ACCOUNTING
AND ELECTIONS
Section 7.01. Tax Elections. All elections required or permitted by the
Partnership under the terms of the Code shall be made by Partnership Action in
such manner as will be most advantageous to all Partners and the Partnership. In
the event of the distribution of property by the Partnership within the meaning
of Section 734 of the Code, or the transfer of an interest in the Partnership
within the meaning of Section 743 of the Code, the General Partners, in their
sole discretion, may elect to adjust the basis of the Partnership property
pursuant to Sections 734, 743 and 754 of the Code. Any Partners affected by such
election shall supply the information as may be required to make, or give effect
to, such elections by the Partnership.
Section 7.02. Other Tax Matters. The General Partners shall make such
elections and shall take such other action as the General Partners believe
necessary (a) to extend the statute of limitations for assessment of tax
deficiencies against the Limited Partners with respect to any adjustment to the
Partnership's federal and state income tax returns; (b) to cause the Partnership
and the Limited Partners to be represented before the Service, any other taxing
authorities or any courts in matters affecting the Partnership and the Limited
Partners; and (c) to cause to be executed any agreements or other documents that
bind the Limited Partners with respect to such tax matters or otherwise affect
the rights of the Partnership or the Limited Partners. The General Partners are
specifically authorized to act as the "Tax Matters Partners" under the Code and
in any similar matter under state law.
Section 7.03. Required Records. The General Partners shall continuously
maintain the following documents at the Partnership's registered office:
a. A current list of the full name and last known mailing address of
each Partner (specifying separately the General and Limited
Partners) in alphabetical order;
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b. A copy of the Certificate of Limited Partnership and all
certificates of amendment thereto, together with executed copies of
any powers of attorney pursuant to which any certificate has been
executed;
c. Copies of the Partnership's federal, state and local tax returns and
reports, if any, for the three (3) most recent years;
d. Copies of this Agreement, any amendments to this Agreement and any
amended and restated partnership agreements;
e. Copies of any financial statements of the Partnership for the three
(3) most recent years; and
f. A current list showing the amounts of cash and a description and a
statement of and the value of other property and services which each
Partner agreed to contribute to the Partnership and actually
contributed to the Partnership.
The General Partners shall make these documents available during normal business
hours for inspection and copying, at the reasonable request of and at the
expense of any Partner. The General Partners shall not be required to deliver or
to mail to each Limited Partner a copy of the Certificate of Limited
Partnership, or any amendments thereto, upon the return of either the
certificate or any amendments from the Secretary of State of the State of
Delaware.
ARTICLE EIGHT
TERMINATION AND DISSOLUTION
Section 8.01. Priority of Dissolution. Upon the occurrence of any of the
events set forth in Section 8.02 below, the Partnership shall be dissolved, the
affairs of the Partnership wound up and the property of the Partnership
distributed and applied in the following order of priority:
a. First, to the payments of any debts and liabilities of the
Partnership owing to persons other than any of the Partners;
b. Second, to the payment of any debts and liabilities of the
Partnership owing to any Partner, but in the event the amount
available for such payment is insufficient to satisfy all such debts
and liabilities, then to such Partners in the proportion which their
respective claims bear to the claims of all such Partners; and
c. Last, to the Partners in the proportion which the positive balance
in each Partner's positive capital account bears to the aggregate
capital account balance of all Partners at that time.
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No Partner shall have a priority over any other Partner with respect to the
distribution under subparagraph (c) above. Distributions made in accordance with
this Section 8.01 shall be in full satisfaction of the Partner's claim against
the Partnership for distribution and liquidation. A General Partner (but not a
Limited Partner) shall be liable to restore to the Partnership any negative
balance standing in such Partner's capital account, following the distributions
required under this Section 8.01, which amount shall, when paid to the
Partnership, be distributed by the Partners to the creditors of the Partnership,
or to the other Partners in accordance with this Section 8.01. The Partner
restoring any such negative balance shall be required to do so at a time not
later than the latest permissible time permitted under Treas. Reg. Section
1.704-1(b)(2)(ii). In making distributions to the Partners, the positive capital
account balances of the Partners shall be determined after taking into account
all capital account adjustments required by Treas. Reg. Section 1.704-1(b)(2).
Section 8.02. Events Causing Dissolution. The following events shall cause
the dissolution of the Partnership:
a. Upon the mutual consent in writing executed by all Partners;
b. Upon the occurrence of an event specified under the laws of the
State of Delaware as one effecting dissolution (except to the extent
as may be otherwise provided in this Agreement);
c. Upon the withdrawal of a General Partner at a time when there is no
other General Partner (except to the extent as may be otherwise
provided in this Agreement);
d. Upon the entry of a decree of judicial dissolution under the Act; or
e. Upon the failure of a new General Partner to qualify under the
provisions of Section 8.04 below.
Section 8.03. Agreement in Event of Dissolution by Act or Event Relating
to Less Than All Partners. If the act of, or an event relating to, less than all
Partners (the "Dissolving Partners"), including, without limitation, the
withdrawal of a General Partner, shall for any purpose be considered an event of
dissolution of the Partnership, then the remaining Partners shall enter into a
new partnership upon the terms and conditions set forth above and upon the same
terms and conditions governing the present Partnership, and each party to this
Agreement hereby agrees for himself, his executor, administrator, heirs and
assigns to enter into such new partnership and to execute any and all
instruments necessary therefor. The act or event relating to the Dissolving
Partners shall be treated as a notice of withdrawal by the Dissolving Partners
of the entire capital account or capital accounts of the Dissolving Partners.
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Section 8.04. Designation of a General Partner. Upon the withdrawal of
Radio One of Texas I, LLC as a General Partner or upon the withdrawal of the
last General Partner who may have been designated in accordance with the
provisions of this Section 8.04, the Partnership shall continue for a period not
exceeding ninety (90) days immediately following the withdrawal of the last
General Partner. During such time, the Partners holding more than fifty percent
(50%) of the total number of capital units held by all Partners at that time
shall designate a person or other legal entity as a new General Partner and such
designee shall become a new General Partner by accepting such designation in
writing and assuming the obligations of the last General Partner under this
Agreement. In the event a new General Partner is not qualified within the time
prescribed, then at the expiration of such period the Partnership shall dissolve
and the affairs of the Partnership wound up and the property of the Partnership
distributed as provided in this Article Eight. Except as provided in the
immediately preceding sentence, if the withdrawal of any General Partner shall
for any purpose be considered as a dissolution of the Partnership, then the
provisions set forth in this Section 8.04 shall be construed as an agreement to
enter into a new partnership upon the terms and conditions set forth in this
Agreement and each party to this Agreement hereby agrees for himself, his
executor, administrator, heirs and assigns to enter into such new partnership
and to execute any and all instruments necessary therefor.
Section 8.05. Bankruptcy, Incompetency or Death of a Limited Partner. Upon
the bankruptcy of a Limited Partner, then the trustee of such bankrupt Limited
Partner shall be considered an assignee of such Limited Partner's interest in
this Partnership and such trustee shall be entitled only to the rights and
benefits not inconsistent with this Agreement as are presently provided under
Delaware State Law for a creditor of a person having a partnership interest.
Section 8.06. Time to Dissolve. A reasonable time shall be allowed for the
orderly liquidation of the assets of the Partnership and the discharge of
liabilities to creditors so as to minimize the normal losses attendant upon such
liquidation. Each of the Partners during the course of winding up the
Partnership affairs and dissolution shall be furnished with a statement prepared
by the General Partners which shall set forth the assets and liabilities of the
Partnership as of the date of the termination of the Partnership.
Section 8.07. Date of Termination. The Partnership shall be terminated
when all of its assets have been applied and distributed in accordance with the
provisions of Section 8.01 above. The establishment of any reserves for the
payment of any contingent or unforeseen liabilities or obligations of the
Partnership shall not have the effect of extending the term of the Partnership,
and such reserve shall be applied and distributed in the manner otherwise
provided in Section 8.01 above upon the expiration of the period of such
reserve. Upon the termination of the Partnership, there shall be recorded a
Certificate of Cancellation of the Partnership.
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Section 8.08. Contingent Liabilities. Notwithstanding any of the
provisions of this Agreement, upon the dissolution of the Partnership each
General Partner shall continue to be personally liable for the liabilities of
the Partnership (absolute, contingent or otherwise, and whether or not known at
the time of dissolution) which become payable subsequent to the date of
dissolution arising out of events occurring prior to the date of dissolution.
Each General Partner shall be responsible for the proportion of such liability
as such General Partner was liable prior to the dissolution of the Partnership
in accordance with Section 3.03 above. Each General Partner shall, if necessary,
pay to the other General Partners any amounts as are necessary to insure that
the terms of this Section are made fully effective.
ARTICLE NINE
AMENDMENT AND ENTIRE AGREEMENT
This Agreement shall not be amended, altered, changed or added to except
by a written instrument executed by all Partners as of the time of such
alteration or amendment. This instrument contains the entire understanding and
agreement of the Partners with respect to all matters referred to herein and all
prior negotiations and understandings are hereby merged into this Agreement.
ARTICLE TEN
DEALINGS WITH THE PARTNERSHIP
Section 10.01. Dealings With the Partnership. Any Partner may deal with
the Partnership as an independent contractor or as an agent for others, and may
receive from such others or the Partnership normal profits, compensation,
commissions or other income incident to such dealings.
Section 10.02. Dealings Outside the Partnership. During the continuance of
the Partnership, the General Partners individually or collectively shall, at any
time and from time to time, devote such time and effort to the Partnership
business as may be necessary to promote adequately the interests of the
Partnership and the mutual interests of the Partners. Except as otherwise
provided by agreement with one or more of the General Partners, the General
Partners shall not be required to devote full time to Partnership business.
During the continuance of the Partnership, the Partners individually or
collectively may, at any time and from time to time, engage in and possess an
interest in other business ventures of any and every type and description,
independently or with others, and neither the Partnership nor any Partner shall
by virtue of this Agreement have any right, title or interest in or to such
independent ventures of the Partners.
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Section 10.03. Partners' Salary. No Partner shall receive a regular salary
or fees for services rendered in management or operation of the Partnership
business or property unless specifically agreed to by Partnership Action and
such agreement is evidenced by a written agreement specifying such salary;
provided, however, that no Partner shall be required to contribute any materials
or services for the business or operations of the Partnership and, to the extent
any Partner provides such services or the use of any equipment to the
Partnership which the Partnership would otherwise have been required to obtain
by contract, the Partner or Partners providing such services or equipment shall
be paid by the Partnership at the customary or prevailing rates for such service
or equipment in the locale where they were provided.
Section 10.04. Management Fee. Any Partner may, by agreement of the
Partners, be compensated for performance of its duties and responsibilities as a
Partner. Any such compensation shall be considered guaranteed payments within
the meaning of Section 707(c) of the Code.
Section 10.05. Fiduciary Obligations. The General Partners shall have a
fiduciary responsibility to all Partners, both General and Limited, and shall
exercise the General Partners' rights and powers in such manner as will best
serve the interests of all Partners, including the safekeeping and use of all
funds and assets of the Partnership, whether or not in their immediate
possession or control. The General Partners shall not employ, or permit another
to employ, such funds or assets in any manner except for the exclusive benefit
of the Partnership.
ARTICLE ELEVEN
POWER OF ATTORNEY
Section 11.01. Power of Attorney. Each Limited Partner does hereby
nominate, constitute and appoint the General Partners as said Limited Partner's
true and lawful agent and attorney-in-fact, in said Limited Partner's name,
place and stead, to make, execute, acknowledge, swear to and file:
a. Any certificate or other instrument which may be required to be
filed by the Partnership under the laws of any state or of the
United States; and
b. Any and all amendments, modifications, or cancellations of such
certificate or instrument, including any amendment to the
Certificate of Limited Partnership required in accordance with the
provisions of this Agreement and the Special Power of Attorney which
is attached hereto as Exhibit "13.01" and incorporated herein by
reference.
Section 11.02. Appointment Irrevocable. This power of attorney granted
herein being coupled with an interest is irrevocable and shall not be affected
by death or incompetence of the principal and, in addition, shall be effective
to the fullest extent permitted under Delaware State Law.
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ARTICLE TWELVE
GENERAL
Section 12.01. Notices and Registered Agent. The registered agent of the
Partnership shall be as follows:
REGISTERED AGENT: Corporation Service Company
2711 Centerville Road, Suite 400
Wilmington, DE 19808
or at such other address as may hereafter be designated in accordance with the
Act. All notices, demands, offers or other communication which any party hereto
is required or may desire to give to any other party hereto may be delivered in
person or may be mailed by certified or registered mail, postage prepaid,
addressed to the other party as follows:
PARTNERSHIP: Radio One of Texas, L.P.
24 Greenway Plaza
Suite 1508
Houston, TX 77046
Attention: General Manager
GENERAL
PARTNER: Radio One of Texas I, LLC
5900 Princess Garden Pkwy.
8th Floor
Lanham,MD 20706
LIMITED
PARTNERS: Radio One of Texas II, LLC
5900 Princess Garden Pkwy.
8th Floor
Lanham,MD 20706
or at such other address as any Partner may hereafter specify in writing to the
Partnership and the other Partners. Any notice or demand pursuant to this
Agreement shall be deemed given and received immediately if delivered in person
or if delivered by mail then forty-eight (48) hours after deposit in United
States mail postage prepaid.
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Section 12.02. Partnership Action. As used in this Agreement, the term
"Partnership Action" shall mean authorization by a majority of the General
Partners at that time.
Section 12.03. Certificate of Limited Partnership. As soon as practicable
after the execution of this Agreement, the Partnership shall cause to be filed
with the Secretary of State of the State of Delaware a Certificate of Limited
Partnership meeting the requirements of the Act. In addition, the Partnership
shall cause to be filed any amendment to the Certificate of Limited Partnership
as required by under Delaware State Law or as the General Partners deem
advisable and permitted by Delaware State Law.
Section 12.04. Execution in Counterparts. This Agreement may be executed
in one or more counterparts, each of which may be executed by one of the parties
hereto, with the same force and effect as though all the parties executing such
counterparts had executed but one instrument.
Section 12.05. Titles. The titles and headings in this Agreement are for
convenience only and shall in no way affect, limit or control the meaning or
application of any article or section hereof.
Section 12.06. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Delaware.
Section 12.07. Time of Essence. Time is of the essence in this Agreement
and all the terms and provisions hereof. This Agreement and all the terms and
provisions hereof shall, except as herein otherwise provided, inure to the
benefit of and shall be binding upon the heirs, personal representatives,
successors and assigns of the parties hereto.
Section 12.08. Partial Invalidity. If any of the terms and provisions of
this Agreement are determined to be invalid, such invalid term or provision
shall not affect or impair the remainder of this Agreement, but such remainder
shall continue in full force and effect to the same extent as though such
invalid term or provision were not contained herein.
Section 12.09. Singular and Plural. In this Agreement, whenever the
context so requires, the singular includes the plural and the plural includes
the singular.
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Section 12.10. General and Limited Partners. As provided in Section 3.01
above, capital units may be held by either General and Limited Partners of the
Partnership and a Partner may be both a General and Limited Partner of the
Partnership. For purposes of determining a Partner's rights and obligations
under this Agreement, a Partner who is both a General and Limited Partner shall
have such Partner's rights and obligations determined independently as though
such Partner held only a General or Limited Partnership interest.
Section 12.11. Further Action. The Partners shall execute and deliver all
documents, provide all information and take or forebear from all such action as
may be necessary or appropriate to achieve the purposes of this Agreement.
Section 12.12. Pronouns. All pronouns and variations thereof shall be
deemed to refer to the masculine, feminine and neuter as the identity of the
person or persons may require.
Section 12.13. Partnership Obligations Binding. Each Partner agrees that
the promises, covenants and conditions contained herein are given individually
and as a Partner and inure to and are binding upon his successors, assigns and
estate.
Section 12.14. Partition. The Partners hereby agree that no Partner, nor
any successor in interest to any Partner, shall have the right while this
Agreement remains in effect to have the Partnership property partitioned, or to
file a complaint or institute any proceeding at law or in equity to have the
property partitioned, and each Partner on behalf of himself, his successors,
successors in title and assigns, hereby waives any such right.
Section 12.15. Signatory Requirements. Each Limited Partner or additional
or substitute Limited Partner may become a signatory hereof by signing a Limited
Partner Signature Page to this Agreement and such other instruments as the
General Partners shall determine. By so signing, each Limited Partner or
additional or substitute Limited Partner shall be deemed to have adopted and
agreed to be bound by all the provisions of this Agreement, as amended from time
to time in accordance with the provisions of this Agreement.
Section 12.16. Statutory Accountings Etc. The Partners hereby agree that
no Partner, nor any successor in interest to any Partner, shall have the right
while this Agreement remains in effect to any statutory right to an accounting
or to institute any proceeding at law or in equity to obtain such accounting,
and each Partner on behalf of himself, his successors, successors in title and
assigns, hereby waives any such rights.
24
Section 12.17. Book Value. As used in this Agreement, the term "Book
Value" of any item of Partnership property as of any particular date shall be
determined as follows: (a) the Book Value of any item of property contributed by
a Partner to the capital of the Partnership shall be the agreed-upon gross fair
market value of such item of property as of the date such property was
contributed to the Partnership, as adjusted for depreciation, depletion, cost
recovery and amortization deductions with respect to such property computed in
the manner provided in Section 4.01(a) above; and (b) the Book Value of any
other item of Partnership property shall be its adjusted basis for Federal
income taxation purposes.
IN WITNESS WHEREOF, the parties hereto have set their hands, effective as
of the day and year first above written, on this 17th day of December, 2001.
GENERAL PARTNER LIMITED PARTNER
RADIO ONE OF TEXAS I, LLC RADIO ONE OF TEXAS II, LLC
By: /s/ Linda J. Eckard Vilardo By: /s/ Scott R. Royster
----------------------------- -------------------------
LINDA J. ECKARD VILARDO SCOTT R. ROYSTER
Vice President Executive VP/CFO
25
STATE OF MARYLAND )
)SS:
COUNTY OF PRINCE GEORGE'S )
Before me, a Notary Public in and for said county and state, personally
appeared Linda J. E. Vilardo known to me to be the VP of Radio One of Texas I,
LLC, and who executed this Agreement on behalf of Radio One of Texas I, LLC, as
a General Partner, and being duly sworn, acknowledged that execution for the
purposes therein contained as of the date of the Agreement referred to therein.
Witness my hand and official seal.
/s/ [ILLEGIBLE]
----------------------------------
Notary Public
Residing in PG County, Maryland
My Commission Expires:
9/13/05
STATE OF MARYLAND )
)SS:
COUNTY OF PRINCE GEORGE'S )
Before me, a Notary Public in and for said county and state, personally
appeared Scott R. Royster known to me to be the EVP/CFO of Radio One of Texas
II, LLC, and who executed this Agreement on behalf of Radio One of Texas II,
LLC, as a Limited Partner, and being duly sworn, acknowledged that execution for
the purposes therein contained as of the date of the Agreement referred to
therein.
Witness my hand and official seal.
/s/ [ILLEGIBLE]
----------------------------------
Notary Public
Residing in PG County, Maryland
My Commission Expires:
9/13/05
26
EXHIBIT "3.02"
LIMITED PARTNERSHIP AGREEMENT
OF
RADIO ONE OF TEXAS, L.P.
Description of Property Value
----------------------- -----
Assets:
Cash $10,000,00
TOTAL GROSS VALUE $10,000,00
----------
Liabilities:
None $ 0.00
TOTAL LIABILITIES $ 0.00
----------
TOTAL NET VALUE $10.000.00
==========
27
EXHIBIT "11.01"
SPECIAL POWER OF ATTORNEY
The undersigned, Radio One of Texas II, LLC, hereby constitutes and
appoints the General Partners of Radio One of Texas, L.P., a limited partnership
being organized under Delaware State Laws (hereinafter referred to as the
"Partnership"), and any one of them, as the undersigned's true and lawful
attorney-in-fact in the undersigned's name, place and stead to:
1. Sign and certify under oath such original Certificate of Limited
Partnership with respect to the Partnership as is required by Delaware State
Law.
2. Sign and certify under oath such amended Certificates of Limited
Partnership with respect to the Partnership as required from time to time in
order to reflect:
a. A change in the name of the Partnership;
b. The admission of a new General Partner in accordance with the
provisions of the Partnership Agreement;
c. The withdrawal of a General Partner in accordance with the
provisions of the Partnership Agreement;
d. The continuation of the business of the Partnership after an event
of withdrawal of a General Partner in accordance with the provisions
of the Partnership Agreement;
e. The discovery by a General Partner that any statement in the
original Certificate of Limited Partnership or any amendment thereof
was false when made;
f. The facts or arrangements described in the original Certificate of
Limited Partnership or any amendment thereof have changed making the
original Certificate of Limited Partnership or any amendment thereof
inaccurate in any respect; or
g. Any other change or modification of the original Certificate of
Limited Partnership or any amendment thereof that the General
Partners agree to.
3. Execute such amendments to the Limited Partnership Agreement of the
Partnership as are necessary to reflect the admission of additional Limited
Partners or substitution of Limited Partners in accordance with the agreement.
4. Execute and file all documents which may be required to effect the
dissolution of the Partnership pursuant to the Limited Partnership Agreement.
5. Execute and file all assumed name certificates required to be filed on
behalf of the Partnership.
This power of attorney is coupled with an interest and shall be
irrevocable to the General Partners and any one of them, so long as said person
or persons continues as a General Partner of the Partnership and shall not be
affected by the death or incompetence of the principal and, in addition, shall
be effective to the fullest extent permitted under Delaware State Law.
This special power of attorney shall be governed by and construed in
accordance with the laws of the State of Delaware.
IN WITNESS WHEREOF, the undersigned has executed this special power of
attorney this 17th day of December, 2001.
RADIO ONE OF TEXAS II, LLP
By: /s/ Scott R. Royster
-------------------------
SCOTT R. ROYSTER
Executive VP/CFO
STATE OF MARYLAND )
)SS:
COUNTY OF PRINCE GEORGE'S )
Before me, a Notary Public in and for said county and state, personally
appeared Scott R. Royster, known to me to be the individual described in, and
who executed this Special Power of Attorney, and being duly sworn, [he/she]
acknowledged that [he/she] executed the same for the purposes therein contained
as of the date referred to therein.
Witness my hand and official seal.
/s/ [ILLEGIBLE]
--------------------------------
Notary Public
Residing in PG County, Maryland
My Commission Expires:
9/13/05