(Table of Contents Deleted)
SECOND AMENDED AND
COMPLETELY RESTATED
AGREEMENT OF GENERAL PARTNERSHIP
OF
IRVINE MEADOWS AMPHITHEATER
THIS SECOND AMENDED AND COMPLETELY RESTATED AGREEMENT OF GENERAL
PARTNERSHIP OF IRVINE MEADOWS AMPHITHEATER is entered into effective as of
April 1, 1991, by and among IMA INVESTMENT CORP., a California corporation,
PAUL C. HEGNESS, SHELLI MEADOWS, INC., a California corporation and AUDREY &
JANE, INC., a California corporation. The capitalized terms used in this
Agreement shall have the respective meanings assigned to such terms in Article
XII hereof.
R E C I T A L S:
A. The Partnership was previously governed by that certain Irvine Meadows
Amphitheater, A California General Partnership, Amended and Restated
Partnership Agreement entered into as of January 1, 1981 (the "Original
Partnership Agreement"). The Original Partnership Agreement was amended and
restated in its entirety pursuant to that certain Letter Agreement dated as of
June 27, 1990 (the "June 27 Agreement"), as supplemented by that certain letter
agreement dated July 16, 1990 (the "July 16 Agreement"). The June 27 Agreement
and the July 16 Amendment are collectively referred to herein as the "Letter
Agreement".
B. The parties hereto now desire to memorialize the terms of the Letter
Agreement in the manner set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing Recitals and the mutual
covenants hereinafter set forth, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:
ARTICLE I
CONTINUATION AND AGREEMENT OF
GENERAL PARTNERSHIP
1.01 Continuation. The Partners do hereby continue a general partnership
under the Uniform Partnership Act as set forth in Title 2, Chapter 1 of the
California Corporations Code and do hereby make and execute this Agreement for
the purpose of setting forth the rights, duties, and obligations of the
Partners with respect to the assets of the Partnership and the profits which
the Partners may receive from the Partnership by reason of their being
Partners.
1.02 Name. The Partners hereby agree that the Partnership shall continue
to conduct its business under the name of "Irvine Meadows Amphitheater" and the
Partners shall execute and cause to be published a Fictitious Business Name
Statement on behalf of the Partnership (or an amendment to any such statement
that was previously filed) and cause the same to be filed in the office of the
County Clerk of Orange County, State of California, all in accordance with
Sections 17900-17930 of the Business and Professions Code of the State of
California. The Partners agree to file from time to time hereafter such other
Fictitious Business Name Statements on behalf of the Partnership, and to cause
the same to be published, as may from time to time be required by law.
1.03 Statement. The Partners agree that, in addition to the execution of
this Agreement, the Partners shall execute, acknowledge and verify one or more
copies or a Statement or Partnership pursuant to the provisions of Section
15010.5 of the California Corporations Code (or an amendment to any such
statement that was previously recorded), which shall be duly recorded forthwith
in the Official Records in the County of Orange, State of California, and in
each other county in which the Partnership holds or shall hereafter hold title
to real property. The Partners shall also execute, acknowledge, verify, file,
and/or record such other instruments and statements as may be required by this
Agreement, amendments hereto, or by law.
1.04 Principal Place of Business. The principal place of business of the
Partnership shall be at 17835 Ventura Boulevard, Suite 206, Encino, California
91316, or shall be at such other one or more places as the Operating Partners
may from time to time determine after giving written notice of such change to
the other Partners.
1.05 Nature of Business. The express, limited, and only purposes for which
the Partnership is to exist are (i) to continue to own (a) the leasehold
interest, granted pursuant to that certain Ground Lease (the "Lease") dated as
of February 11, 1969, as amended, by and between The Irvine Company, as lessor
thereunder, and Lion Country Safari, Inc. - California, a Florida corporation
(formerly known as National Leisure, Inc.), which was the
predecessor-in-interest to the Partnership, as lessee thereunder, encumbering
that certain improved real property generally located in the City of Irvine,
County of Orange, State of California, and more fully described on Exhibit "A"
attached hereto (such real property shall be referenced herein as the
"Property"), (b) all rights appurtenant to such leasehold interest, (c) that
certain amphitheater facility commonly known as the Irvine Meadows
Amphitheater, the related parking area, and any and all other infrastructure
and other improvements situated upon the Property, and (d) all of the rights,
duties, obligations and any other interests of the Partnership in and to that
certain option to Ground Lease dated as of April 27, 1984 (the "Option
Agreement"), by and between The Irvine Company, as optionor thereunder, and the
Partnership, as optionee thereunder, and any other related rights or agreements
(such leasehold interest, such appurtenant rights, such amphitheater, such
other improvements situated upon the Property, the Option Agreement and such
other related rights and agreements shall be collectively referenced as the
"Project"); (ii) to own, hold for investment, operate, manage, maintain,
market, lease, rent, and promote for concert or other entertainment purposes;
sell tickets and hard and soft concessions, and conduct such other activities
related to the presentation of concerts at, and otherwise realize the economic
benefit
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from, the Project; and (iii) to conduct such other securities with respect to
the Project as are appropriate to accomplish the foregoing purposes.
1.06 Duties.
(a) In view of the exclusive purposes of the Partnership, Hegness,
and any Affiliate of any Partner including, without limitation, Koll,
Azoff and/or Geddes shall not have any fiduciary obligation with respect
to the Partnership or to the other Partners insofar as making other
investment opportunities available to the Partnership or to any other
Partner. Hegness and any Affiliate of any Partner including, without
limitation, Koll, Azoff and/or Geddes may, notwithstanding the existence
of this Agreement, engage in whatever activities such Partner and/or
Affiliate may choose, whether the same are competitive with the
Partnership or otherwise, without having or incurring any obligation to
offer any interest in such activities to the Partnership or to any other
Partner. Neither this Agreement nor any activities undertaken pursuant
hereto shall prevent Hegness, or any Affiliate of any Partner, including,
without limitation, Koll, Azoff and/or Geddes from engaging in such
activities, and the fiduciary duties of the Partners and Affiliates
thereof shall be limited solely to those arising from owning, holding for
investment, operating, managing maintaining, marketing, leasing, renting,
and promoting for concert or other entertainment purposes; and selling
tickets and hard and soft concessions, and conducting such other
activities related to the presentation of concerts at; and otherwise
realizing the economic benefit from; the Project. Any property (other than
the Project or any portion thereof) acquired by or standing in the name of
Hegness or any Affiliate of any Partner, including, without limitation,
Koll, Azoff and/or Geddes shall be conclusively presumed not to be
Partnership property, unless an instrument in writing, signed by the
particular Partner, shall specify to the contrary.
(b) Each of IMA Corp., SMI and A&J hereby agrees that while it is a
Partner in the Partnership it will not, without the prior written consent
of the Management Committee, engage in any business of any nature
whatsoever, other than ownership of its Partnership Interest.
1.07 Names and Addresses of the Partners. The names and places of business
of the Partners are as follows:
IMA Investment Corp., a California corporation
c/o The Koll Company
4343 Von Karman Avenue
Newport Beach, California 92660
Attention: Sydney E. Buck
Paul C. Hegness, Esq.
c/o Good, Wildeman, Hegness & Walley
5000 Campus Drive
Newport Beach, California 92660
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Shelli Meadows, Inc., a California corporation
c/o Azoff Entertainment Company
345 North Maple Drive
Suite 205
Beverly Hills, California 90210
Audrey & Jane, Inc., a California corporation
17835 Ventura Boulevard
Suite 206
Encino, California 91316
1.08 Term of Partnership. The term of the Partnership commenced on or
about September 16, 1980, and shall continue for a period of fifty (50) years
thereafter, unless terminated sooner as a result of the dissolution and winding
up of the Partnership in accordance with Article VIII hereof or unless extended
by the unanimous agreement of the Partners.
ARTICLE II
MANAGEMENT AND OPERATION OF
THE PARTNERSHIP
---------------------------
2.01 Overall Management by the Management Committee.
(a) The overall business and affairs of the Partnership shall be managed
by a committee (the "Management Committee") consisting of IMA Corp., SMI and
A&J, which, except as otherwise provided in this Agreement, shall have full and
complete charge of all facets of the overall business affairs of the
Partnership, and the overall management and control of the Partnership's
business shall rest exclusively with the Management Committee. Any decision by
the Management Committee shall require the unanimous affirmative vote of all of
the members thereon and shall bind the Partnership and all of the Partners.
Except as otherwise provided in this Agreement, all conveyances of title to
Partnership property or any interest therein, all loan documents, deeds of
trust, deeds, mortgages, and any and all other instruments of conveyance,
encumbrance or indebtedness may be executed only by all of the Partners
comprising the Management Committee, acting together, and may not be executed
by any Partner individually or by any other group of Partners. Any and all
documents and/or other instruments executed in accordance with the foregoing
provisions of this. Section 2.01(a) shall bind the Partnership and each
Partner. Nothing contained herein shall prevent any Partner or any of such
Partner's employees, agents, or representatives, or Affiliates thereof from
devoting time to other businesses, whether or not similar in nature to the
business of the Partnership.
(b) No Partner shall, without the consent of the Management Committee,
take any action on behalf of or in the name of the Partnership, or enter into
any commitment or obligation binding upon the Partnership, except for actions
which have been expressly authorized hereunder or are within the scope of such
Partner's authority granted hereunder. Each Partner
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hereby indemnifies, defends, and holds wholly free and harmless each other
Partner and each such other Partner's employees, agents, representatives and
Affiliates thereof, from and against any loss, liability, claim, damage, or
expense arising out of any breach of the foregoing provision of this Section
2.01(b) by such indemnifying Partner or such indemnifying Partner's agents,
employees, agents or representatives, or Affiliates thereof.
2.02 Operating Partners. Until such time as their authority is terminated
pursuant to Section 2.04, SMI and A&J shall act, and are hereby designated, as
the operating partners (individually, an "Operating Partner" and collectively,
the "Operating Partners") of the Partnership. In their capacity as the
operating Partners of the Partnership, SMI and A&J shall be responsible,
subject to the terms of this Agreement, for the implementation of the decisions
of the Management Committee and for managing, supervising, and conducting the
ordinary and usual day-to-day business and affairs of the Partnership. Except
as otherwise provided in this Agreement, the Operating Partners shall not
receive a salary or any other compensation for serving in their capacity as
such. The acts of the Operating Partners shall bind the Partners and the
Partnership when such acts are within the scope of the Operating Partners'
authority. The Operating Partners shall at all times conform to policies and
programs established and approved by the Management Committee as set forth in
this Agreement and may from time to time be further agreed to by the Management
Committee and the scope of the Operating Partner's authority shall be limited
to such policies and programs. Each Operating Partner shall use such Partner's
reasonable, diligent and good faith efforts to carry out the day-to-day
business affairs of the Partnership and shall devote such time to the
Partnership as is necessary, in the reasonable discretion of such Partner, for
the efficient operation of such day-to-day business affairs. Each Operating
Partner shall use such Partner's good faith and reasonable efforts to keep each
other Partner informed as to all matters of concern to the Partnership.
2.03 Rights and Duties of the Operating Partners. Notwithstanding the
provisions of Section 2.01, but subject to the last approved Operating Budget
and the provisions of Section 2.02, and unless and until the authority of the
Operating Partners is terminated pursuant to Section 2.04, the Operating
Partners, on behalf of the Partnership, shall have the following rights, duties
and responsibilities and shall conduct or cause to be conducted the following
functions of the Partnership:
(a) Negotiating, entering into and executing on behalf of, and in the
name of the Partnership, and implementing (i) agreements not having a term
in excess of one year (including renewal options) for advertising and
publicity for the Project or any portion thereof, and (ii) contracts or
other agreements for the provision of such other services, supplies,
equipment, repairs, and/or improvements as are reasonably necessary to
carry out the day-to-day business affairs of the Partnership;
(b) Negotiating, entering into and executing on behalf of, and , in
the name of the Partnership, and implementing contracts with performing
artists and arranging all booking and scheduling of acts for the Project;
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(c) Preparing and submitting to the Management Committee for its
review and approval, and, once approved, implementing the operating
Budgets as provided in Section 2.05;
(d) Selecting, employing, supervising, coordinating, and discharging
any sound engineers, theater management, attorneys, accountants,
bookkeepers, clerical personnel, and other consultants necessary or
appropriate to carry out the day-to-day business affairs of the
Partnership;
(e) Collecting, receiving, and accounting for all funds received as a
consequence of the operation of the Partnership for the benefit of the
Partnership, and making disbursements from Partnership funds to pay for
all amounts due and payable as operating expenses of the Project and/or
the Partnership in accordance with the provisions of the applicable
Operating Budget; including, without limitation, payments to performing
artists, consultants and suppliers providing services and/or supplies for
the Project, and payments for advertising and promotional expenses; taxes;
special assessments; and similar obligations imposed against the Project
or any other Partnership property; insurance; utilities; and principal and
interest on any financing for the Project;
(f) Managing the Partnership's cash assets, including, without
limitation, investing Partnership funds temporarily in interest bearing
accounts, commercial paper, United States governmental securities,
certificates of deposit, or other similar investments;
(g) Procuring and maintaining on behalf of the Partnership, from
Partnership funds, policies of insurance for the protection of the
Partnership, the Partners, and/or the conservation of the Project or any
other assets of the Partnership providing adequate coverage limits
(including, as applicable, insuring any and all improvements situated upon
the Project to full replacement value), including, without limitation,
workers' compensation, fire, vandalism, malicious mischief, and extended
coverage, comprehensive liability for property damage and bodily injury,
and such other insurance coverage as the Operating Partners, in such
Partners' reasonable discretion, shall deem necessary or advisable, plus
any additional insurance that may be required by any lender of a loan
secured by all or any portion of the Project;
(h) Supervising and coordinating the operation, management,
maintenance, and repair of the Project;
(i) Performing or causing to be performed the accounting functions of
the Partnership in accordance with Article X; and
(j) Performing any and all other services and/or functions of a
general and/or administrative nature required under the provisions of this
Agreement or otherwise necessary or desirable in connection with the
day-to-day business affairs of the Partnership; provided, however, that
such services and/or functions are not prohibited under this Agreement.
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2.04 Termination of Authority of the Operating Partners. Any one of IMA
Corp., SMI and/or A&J shall have the right, but not the obligation, to
terminate the authority, rights and duties of both of SMI and A&J as the
Operating Partners of the Partnership for any reason whatsoever, with or
without cause, upon ten (10) days' prior written notice. Following any such
termination, the authority, rights and duties held by the Operating Partners
prior to such termination shall be vested entirely with the Management
Committee or with such, other person(s) or entity(ies) as may be selected by
the Management Committee.
2.05 Operating Budget. The Operating Partners shall prepare and deliver to
IMA Corp. for IMA Corp.'s review and approval, which approval shall not be
unreasonably withheld, at least thirty (30) days prior to the beginning of each
fiscal year of the Partnership, an operating budget ("Operating Budget") for
such fiscal year or portion thereof with respect to the Project; provided,
however, the Partners acknowledge that the Operating Budget for the 1991 fiscal
year was previously delivered to Koll (the predecessor-in-interest to IMA
Corp.) and approved by Koll in accordance with the provisions of the Letter
Agreement. Each Operating Budget shall set forth all receipts (including
proceeds projected to arise from the occurrence of the sale or other
disposition of the Project or any applicable portion thereof, which proceeds
shall be separately identified) projected for the period of such Operating
Budget and all expenses, by category, of owning and operating the Project or
any applicable portion thereof (including capital improvements projected to be
incurred during such period). If, following the approval of the Operating
Budget for the 1991 fiscal year, any Operating Budget proposed by the Operating
Partners for any subsequent fiscal year is not approved by IMA Corp., then the
last approved Operating Budget (as previously increased, if applicable, in
accordance with the provisions set forth below in this Section 2.05 (but
exclusive of any capital improvements included in such fiscal year Operating
Budget)) shall be deemed to apply with respect to such fiscal year until a
revised Operating Budget is approved for such year; provided, however, (i)
appropriate adjustments to such last approved Operating Budget shall be
automatically made to reflect actual increases in real property taxes,
insurance premiums, utility charges, and similar items over which the
Partnership has no control, and (ii) each other item of expense in such last
approved Operating Budget shall be increased by one percent (1%) semi-annually
until such time as the Partners are able to agree upon a revised Operating
Budget. Subject to the restriction on the execution of documents set forth in
Section 2.01(a), either of the Operating Partners shall have the power to incur
costs on behalf of the Partnership, without the consent of any other Partner,
during the period covered by any pertinent Operating Budget applicable to such
period in accordance with this Section 2.05 so long as the amount of any such
expenditure incurred by the Partnership or by such Operating Partner on behalf
of the Partnership for any line item included within such Operating Budget does
not exceed the amount of the projected expenditure for such line item set forth
in such budget (as previously increased, if applicable, in accordance with the
provisions set forth above in this Section 1.05).
2.06 General Rights and Limitations. Hegness shall not have any right,
power, or authority to act for or bind the Partnership. Subject to the
provisions of Section 2.07 below and except as otherwise provided in this
Agreement, Hegness shall not take any part in the conduct or control of the
Partnership business and shall only have the right to vote upon Partnership
matters in the manner set forth in this Section 2.06 below. Moreover,
notwithstanding any term or
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provision set forth in Sections 2.01, 2.02, 2.03 and/or 2.05, no Partner shall
have the power to undertake any of the following without obtaining the approval
of the Partners as set forth below in this Section 2.06:
(a) Any act in contravention of this Agreement;
(b) Any act which would make it impossible or unreasonably burdensome
to carry on the business of the Partnership;
(c) The sale, exchange, conveyance, disposition, condemnation (or
acquisition by an entity with power of eminent domain in lieu of formal
condemnation proceedings) or other transfer of the Project or any portion
thereof;
(d) The procurement, increase, modification, consolidation,
replacement or extension of any financing, whether secured or unsecured,
affecting the Project or the Partnership;
(e) The entry into, extension, cancellation, amendment or other
modification to any lease or sub-lease encumbering the Project or any
portion thereof;
(f) The making of any loans or the extension of credit by the
Partnership or causing the Partnership to become a surety, guarantor,
endorser or accommodation endorser for any person or entity;
(g) The making of any single expenditure or obligating the
Partnership to make any single expenditure not included in the then
effective Operating Budget and involving an amount in excess of Ten
Thousand Dollars ($10,000);
(h) The commencement, defense, waiver, settlement and/or compromise
of any litigation with respect to the Partnership or any assets thereof;
(i) Except with respect to any transfers between or among the
Partners as permitted under this Agreement, the entry into, extension,
cancellation, amendment or other modification of any agreement affecting
the Partnership or the Project by and between the Partnership or the
Project by and between the Partnership or any Partner, or any Affiliate,
agent, employee or other representative of a Partner, on the one hand, and
any other Partner, or any Affiliate, agent, employee or other
representative of a Partner, on the other hand;
(j) The dissolution of the Partnership;
(k) The distribution of any asset of the Partnership (other than
cash) in kind to one or more Partners, in accordance with the provisions
of Section 6.02;
(l) The amendment of this Agreement; or
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(m) Any other matter requiring the affirmative vote of one or more of
the Partners pursuant to the terms of this Agreement.
Voting with respect to the above matters shall be as follows: (i) all of
the matters described in paragraphs (a) through (k), inclusive, above shall
require the unanimous affirmative vote of the Management Committee, (ii) the
matter described in paragraph (1) above shall require the unanimous affirmative
vote of all of the Partners except for any amendment to reflect a permitted
transfer and the admission of such permitted transferee into the Partnership as
a substituted Partner pursuant to Sections 7.05 and 7.06, respectively, which
shall require the unanimous affirmative vote of all of the non-transferring
Partners (other than Hegness) and (iii) any matter described in paragraph (m)
above shall require the affirmative vote of the Partner or Partners as
otherwise required pursuant to the terms of this Agreement.
2.07 Voting Rights of Hegness. Notwithstanding any other provision
contained in this Agreement, IMA Corp., shall be entitled to vote or make any
other decision, in place of Hegness, on any and all of the matters which
Hegness may be entitled to vote or make any other decision on under the terms
of this Agreement. In furtherance of the foregoing, IMA Corp. and any of IMA
Corp.'s representatives are hereby designated as the attorney(s)-in-fact of
Hegness with full power to prepare, execute, acknowledge and deliver all
documents or other instruments necessary to effectuate the provisions of this
Section 2.07. The special power of attorney so granted shall be deemed to be
coupled with an interest and, except as provided below in this Section 2.07,
shall be irrevocable. At such time as the Partnership has distributed to IMA
Corp. the entire amount of Cash Flow that IMA Corp. is entitled to receive
pursuant to the provisions of Sections 6.01(c), 6.01(d) and 6.01(e), the rights
of IMA Corp. and the special power of attorney described above in this Section
2.07 shall terminate and Hegness shall thereafter be entitled to vote and make
any other decisions which Hegness is entitled to make under this Agreement.
2.08 Consents and Approvals. Except as otherwise expressly provided
herein, whenever any Partner desires to take any proposed action which such
Partner is permitted to take under the terms of this Agreement and which
requires the prior approval of any one or more other Partners hereunder, then
such Partner shall give to each other Partner entitled hereunder to approve
such action written notice thereof, describing such action in sufficient detail
to enable each such other Partner to exercise an informed judgment with respect
thereto. As soon as practicable thereafter, each such other Partner shall give
the requesting Partner written notice that such other Partner either approves
or disapproves the proposed action (which shall set forth such other Partner's
reasons therefor if such other Partner elects to so disapprove). In the event
that any Partner fails to respond (as provided herein) on or before the
twentieth (20th) day following the effective date of written notice of any such
action proposed by the requesting Partner, then such nonresponding Partner
shall be conclusively presumed to have approved such action.
2.09 Booking and Management Fees. As consideration for rendering services
in connection with the operation of the Project, A&J and SMI shall be entitled
to the following booking and management fees (the "Booking and Management
Fees") (which fees shall be divided between such Partners in such manner as
shall be mutually determined by such Partners):
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(a) An annual fee of One Hundred Fifty Thousand Dollars ($150,000)
payable in equal monthly installments of Twelve Thousand Five Hundred
Dollars ($12,500) on the first day of each calendar month commencing as of
July 1, 1990; and
(b) An additional amount equal to the sum of (i) 50/100 Dollars
($.50) for each paid admission for the first three hundred thousand
(300,000) attendees of the Project for each fiscal year, (ii) 75/100
Dollars ($.75) for each paid admission between three hundred thousand one
(300,001) and four hundred thousand (400,000), inclusive, attendees for
such fiscal year and (iii) One Dollar ($1.00) for each paid admission in
excess of four hundred thousand (400,000) attendees for such fiscal year.
The portion of the Booking and Management Fee described in this paragraph
(b) shall be paid within three (3) business days of the conclusion of each
event presented at the Project.
In the event that Avalon Attractions is terminated as the booking agent for the
Partnership pursuant to the provisions of Section 3.02, then at the election of
both SMI and A&J either (i) the Booking and Management Fees shall continue to
be paid to SMI (and A&J, in the event the Partnership Interest of A&J is not
purchased pursuant. to the provisions of Section 3.03) in the manner described
above, SMI (and A&J, as the case may be) shall retain a new booking agent for
the Partnership, and SMI (and A&J, as the case may be) shall be obligated to
pay any such new booking agent the entire amount of the fee payable by the
Partnership to such booking agent from the Booking and Management Fees
otherwise payable to SMI (and A&J, as the case may be) pursuant to the
provisions of this Section 2.09 or (ii) SMI and A&J shall no longer be entitled
to the payment of the Booking and Management Fees described in this Section
2.09. Any and all accrued and unpaid portions of such Booking and Management
Fees shall be paid in full prior to the distribution of cash or other property
otherwise distributable with respect to the Partnership Interests of the
Partners pursuant to Articles VI or VIII, or otherwise hereunder. For financial
and income tax reporting purposes, the Booking and Management Fees shall be
treated as guaranteed payments within the meaning of Section 707(c) of the Code
and, to the extent any portion of the Booking and Management Fees have not been
paid in full, such unpaid portion of such fees shall be debts of the
Partnership payable upon the liquidation thereof.
2.10 Advertising Fee. The Partners hereby acknowledge that the Partnership
may retain TBA Media, an Affiliate of Geddes, as the advertising agency for the
Project. TBA Media shall be entitled to a fee for acting in such capacity equal
to fifteen percent (15%) of the cost of advertising for each event presented at
the Project. Any such advertising fee shall be paid within three (3) business
days of the conclusion of each such event. Any accrued and unpaid portions of
such advertising fee shall be paid in full prior to the distribution of any
cash or other property otherwise distributable with respect to the Partnership
Interests of the Partners pursuant to Articles VI or VIII, or otherwise
hereunder. To the extent any accrued portion of such advertising fee has not
been paid in full, such unpaid portion of such fee shall be a debt of the
Partnership payable upon the liquidation thereof.
2.11 Sponsorship Fee. The Partners acknowledge that the Partnership may
retain an Affiliate of Geddes to procure sponsorship for acts presented at the
Project. Any such entity that is retained in such capacity shall be paid a fee
equal to fifteen percent (15%) of the gross
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revenues derived from any sponsor procured through the sole and exclusive
efforts of such entity. Any such entity shall not be entitled to any
sponsorship fee for any sponsors procured in whole or in part through the
efforts of any Partner or any other person or entity. Any accrued and unpaid
portions of such sponsorship fee shall be paid in full prior to the
distribution of any cash or other property otherwise distributable with respect
to the Partnership Interests of the Partners pursuant to Articles VI or VIII,
or otherwise hereunder. To the extent any accrued portion of such sponsorship
fee has not been paid in full, such unpaid portion of such fee shall be a debt
of the Partnership payable upon the liquidation thereof.
2.12 Reimbursement and Fees. Except as otherwise provided in this
Agreement, or as may be agreed to in writing by a Majority-in-Interest of IMA
Corp., SMI and A&J, no Partner, or Affiliate, agent, employee or other
representative of a Partner shall be entitled to any fees, compensation and/or
other cost reimbursements, including, without limitation, general and
administrative expenses and/or overhead allowances.
ARTICLE III
BOOKING AGENT
3.01 Generally. Avalon Attractions shall be retained by the Partnership as
the exclusive booking agent for all of the acts presented at the Project. It is
presently contemplated that Avalon Attractions will enter into an operating
agreement with the Partnership relative to providing services as such booking
agent. In any event, A&J and SMI shall be obligated to pay to Avalon
Attractions a fee for acting in such capacity from a portion of the Booking and
Management Fees paid to A&J and SMI pursuant to Section 2.09. Avalon
Attractions shall not otherwise be entitled to any fees, compensation and/or
other cost reimbursements from the Partnership.
3.02 Termination. Avalon Attractions may not be terminated as the
exclusive booking agent for the Partnership except in accordance with the
following procedures:
(a) At any time within the one hundred twenty (120)-day period
following the end of each of the 1991, 1992 and 1993 calendar years, a
Majority-in-Interest of IMA Corp., A&J and/or SMI may elect to cause such
termination if the operating receipts for the Partnership fail to exceed
the operating expenditures for the Partnership (as determined by the
accountants regularly employed by the Partnership) for any such calendar
year. Any proceeds realized in connection with the sale of the concession
rights for the Project or any other Extraordinary Event shall be excluded
from any such determination.
(b) At any time following the expiration of the one hundred twenty
(120) day period following the end of the 1993 calendar year, a
Majority-in-Interest of IMA Corp., A&J and/or SMI may elect to cause such
termination for any reason other than Just Cause, upon ten (10) days,
prior written notice.
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(c) At any time following the execution of this Agreement, a
Majority-in-Interest of IMA Corp., A&J and/or SMI may elect to cause such
termination for Just Cause upon ten (10) days' prior written notice.
(d) At any time following the execution of this Agreement, a
Majority-in-Interest of IMA Corp., A&J and/or SMI may elect to cause such
termination if (i) either (A) Geddes is no longer both a director and an
officer of Avalon Attractions, (B) Geddes fails to own at least twenty
percent (20%) of the beneficial ownership and voting interests in Avalon
Attractions, or (C) Geddes is no longer directly involved in the
day-to-day business and affairs of Avalon Attractions in a manner similar
to his involvement with Avalon Attractions on the effective date hereof;
and (ii) either (A) at any time following the occurrence of any of the
events described in clause (i) above, Avalon Attractions fails to provide
services to the Partnership in the same manner and on the same or more
favorable terms as such services are being provided to the Partnership
immediately prior to the occurrence of any of the events set forth in
clause (i) above, which terms shall include, but not be limited to, the
cost to the Partnership of obtaining substantially similar services and
the projected number of concerts to be promoted at the Project, or (B)
Avalon Attractions promotes or is otherwise involved with any concert
(other than a concert at the Project or a concert occurring during the
periods from January 1 to April 15, inclusive, and from November 15 to
December 31, inclusive, of each calendar year) at any facility in Orange
County, California with a seating capacity of greater than or equal to
twelve thousand (12,000) seats and less than or equal to twenty thousand
(20,000) seats.
3.03 Appraised Buy-Out of the Partnership Interest of A&J. If, and only
if, Avalon Attractions is terminated by a Majority-in-Interest consisting of
IMA Corp. and SMI in accordance with the provisions of Section 3.02(a) or
3.02(b) above, then for a period of thirty (30) days following such
termination, A&J shall have the right, but not the obligation, by delivering
written notice "Election Notice" to IMA Corp. and SMI, to cause the purchase of
the entire Partnership Interest of A&J in accordance with the provisions of
this Section 3.03. In the event A&J timely and validly makes such an election,
then SMI shall be required to purchase the entire Partnership Interest of A&J
in accordance with the provisions of this Section 3.03; provided, however, for
a period of thirty (30) days following the effective date of the Election
Notice, SMI shall have the right, but not the obligation, by delivering written
notice to IMA Corp., to cause IMA Corp. and SMI to each purchase the portion of
the Partnership Interest of A&J that corresponds, in the case of SMI, to the
fraction obtained by dividing (i) the Percentage Interest (as of the effective
date of the Election Notice) of SMI by (ii) the aggregate Percentage Interests
(as of the effective date of the Election Notice) of SMI and the Koll Partners,
and, in the case of IMA Corp., to the fraction found by dividing (i) the
aggregate Percentage Interests (as of the effective date of the Election
Notice) of the Koll Partners by (ii) the aggregate Percentage Interests (as of
the effective date of the Election Notice) of SMI and the Koll Partners. Any
such purchase and sale of the Partnership Interest of A&J by SMI or by SMI and
IMA Corp. (the "Purchasing Partner(s)"), as the case may be, shall be made in
accordance with the following terms and conditions:
(a) The Election Notice shall include the name of an appraiser with
at least five (5) years experience appraising business similar in nature
to the Project. Within forty (40)
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days after the effective date of the Election Notice, the Purchasing Partner(s)
shall either agree to such appraiser or select a second appraiser (with similar
appraisal experience) and notify A&J of such second appraiser. If two (2)
appraisers are selected, then they shall appoint a third appraiser (with
similar appraisal experience) within five (5) days of the selection of the
second appraiser. In the event A&J, on the one hand, or the Purchasing
Partner(s), on the other hand, fail to appoint an appraiser within the time
period specified, and after the expiration of five (5) days following the
effective date of written demand that an appraiser be appointed, then the
appraiser duly appointed by the party making such demand and appointing such
appraiser shall proceed to make the appraisal as herein set forth and the
determination of such appraiser shall be conclusive. Upon the failure of the
two (2) appointed appraisers to timely appoint a third appraiser within the
time period specified therefor, either A&J, on the one hand, or the Purchasing
Partner(s), on the other hand, may petition a court of competent jurisdiction
to appoint a third appraiser, in the same manner as provided for the
appointment of an arbitrator pursuant to Code of Civil Procedure Section
1261.6.
(b) The appraiser or three (3) appraisers, as the case may be, shall
promptly fix a time for the completion of the appraisal, which shall not
be later than thirty (30) days from the date of appointment of the last
appraiser. Each appraiser shall determine the fair market value of the
combined business and assets of the Partnership which shall be the fairest
price estimated in terms of money which the Partnership could obtain if
such business and assets were sold in the open market as a going concern,
allowing a reasonable time to find a purchaser who purchases with
knowledge of the uses which such business and assets in their then
condition are adapted and for which such business and assets are capable
of being used as of the effective date of the Election Notice.
(c) Upon the submission of the appraisal setting forth the opinions
as to the fair market value of the combined business and assets of the
Partnership (determined by each appraiser in accordance with Section
3-03(b)), the two (2) such appraisals which are nearest in amount shall be
retained, and the third appraisal shall be discarded. The average of the
two (2) retained appraisals shall constitute the "Appraised Value";
provided, however, that if one of the appraisals is the mean of the other
two (2), then that appraisal shall constitute the "Appraised Value".
(d) Within fifteen (15) days after the determination of the Appraised
Value, the certified public accountants regularly employed by the
Partnership shall determine the purchase price ("Purchase Price") for the
Partnership Interest of A&J. The Purchase Price shall be equal to the
greater of (i) the sum of the balances standing in the Unrecovered
Contribution Account and Unrecovered Additional Contribution Account of
A&J, determined as of the effective date of the Election Notice, or (ii)
one hundred percent (100%) of the aggregate amount of cash that would be
distributed to A&J pursuant to Section 8.02(c) if (A) the combined
business and assets of the Partnership were sold for the Appraised value
thereof as of the effective date of the Election Notice; (B) the
liabilities of the Partnership were liquidated pursuant to Section
8.02(a); (C) a reserve were established for any contingent or unforeseen
liabilities of the Partnership pursuant to Section 8.02(b); and (D) the
Partnership made its required distributions to the Partners pursuant to
Section 8.02(c). Upon the determination by the
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accountants of the Purchase Price, such accountants shall give A&J, SMI and IMA
Corp. written notice ("Accountant's Notice") of the Purchase Price. The
determination by such accountants of the Purchase Price and any and all
components thereof (including, without limitation, the amount of any reserve)
shall be deemed conclusive.
(e) The closing of a purchase and sale pursuant to this Section 3.03
shall be held at the principal place of business of the Partnership on
such date as is designated by the Purchasing Partner(s) , but in no event
later than the one hundred twentieth (120th) day following the effective
date of the Accountant's Notice. A&J shall transfer to the Purchasing
Partner(s) the entire Partnership Interest of A&J free and clear of all
liens, security interests, and competing claims (other than security
interests granted in favor of the Purchasing Partner(s) and shall deliver
to the Purchasing Partner(s) such instruments of transfer, and such
evidence of due authorization, execution, and delivery, and of the absence
of any such liens, security interests, or competing claims, as the
Purchasing Partner(s) shall reasonably request. The Purchasing Partner(s)
shall pay the Purchase Price to A&J at the closing by delivering to A&J
cash, a certified or bank cashier's check or a confirmed wire transfer of
funds payable to the order of A&J.
(f) The portion of the Purchase Price for the Partnership Interest of
A&J to be paid by any Purchasing Partner shall be offset by the unpaid
balance of any and all Partner Loan(s) (together with all accrued interest
thereon) made by such Purchasing Partner to A&J. Such Partner Loan(s)
(together with all accrued interest thereon) shall be deemed paid to the
extent of such offset, with such deemed payment to be applied first to the
accrued interest thereon and thereafter to the payment of the outstanding
principal amount thereof. If the Purchase Price for the Partnership
Interest of A&J is insufficient to fully offset the outstanding, unpaid
balances (including all principal amounts thereof and all accrued interest
thereon) made by any' and all of the Purchasing Partners to A&J, then such
loans shall be offset in proportion to their respective outstanding
balances (including all principal amounts thereof and all accrued, unpaid
interest thereon). In addition, the outstanding, unpaid balances
(including all principal amounts thereof and all accrued interest thereon)
made by any one or more non-purchasing Partners to A&J shall be due and
payable at the closing of the transfer of the Partnership Interest of A&J
pursuant to this Section 3.03 and shall be repaid, in proportion to such
respective outstanding balances, out of any and all of the proceeds of the
Purchase Price (after reduction of such price otherwise payable to A&J
pursuant to this Section 3.03 pursuant to the offset described above in
this Section 3.13(f), prior to any payment of such proceeds to A&J
pursuant to this Section 3.03. To the extent any portion of any Partner
Loan made by a Partner to A&J is not satisfied pursuant to the foregoing
provisions of this Section 3.03(f), then A&J shall pay the remaining
outstanding balance (including all principal amounts thereof and all
accrued, unpaid interest thereon) at the closing. Also, notwithstanding
any provision of this Agreement to the contrary, the outstanding unpaid
balance of any and all Partner Loan(s) (including all principal amounts
thereof and all accrued, unpaid interest thereon) made by A&J to any
Partner shall be due and payable in full to A&J at the closing of the
purchase of the Partnership Interest of A&J pursuant to Section 3.03(e).
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(g) All costs (including, without limitation, the costs of the
appraisers and the accountants referenced in Sections 3.03(a) and/or
3.03(d) of the purchase and sale of the Partnership Interest of A&J
pursuant to this Section 3.03 shall be paid one-half (1/2) by A&J and
one-half (1/2) by the Purchasing Partner(s) (with such costs being divided
between such Purchasing Partners based upon the relative portion of the
Partnership Interest of A&J purchased by each such Purchasing Partner).
(h) On or before the closing of a purchase and sale transaction held
pursuant to this Section 3.03, the Purchasing Partner(s) shall use such
Partner's(sl) reasonable, diligent, and good faith efforts to obtain
written releases of A&J and/or any Affiliates of A&J from all guarantees
of liabilities of the Partnership previously executed by A&J and/or such
Affiliates. To the extent such releases cannot be obtained by the
Purchasing Partner(s), the Purchasing Partner(s) shall severally (in
proportion to their respective Percentage Interests as of the effective
date of the Election Notice) indemnify, defend, and hold free and harmless
A&J from and against any and all claims, liabilities, causes of action,
liens, charges, and all other matters arising out of or in connection with
the business and affairs of the Partnership, whether arising prior to or
subsequent to the effective date of such closing, except for unknown
liabilities arising prior to the effective date of such closing and not
taken into account in calculating the Purchase Price for the Partnership
Interest of A&J.
ARTICLE IV
CAPITAL CONTRIBUTIONS AND
FINANCIAL OBLIGATIONS OF THE PARTNERS
4.01 Initial Contributions of the Koll Partners. None of the Koll Partners
shall be required to make any initial contributions to the capital of the
Partnership, in connection with the execution of this Agreement or the Letter
Agreement.
4.02 Initial Contributions of SMI and A&J. Concurrently with the execution
of the Letter Agreement, SMI and A&J (or their respective
predecessors-in-interest) each made a cash contribution to the capital of the
Partnership of Three Million Dollars ($3,000,000) which amount was concurrently
credited to each such Partner's Capital Account and Unrecovered Contribution
Account.
4.03 Restated Capital Account Balances. The Partners Project, hereby agree
that the aggregate fair market value of the Project of the outstanding balance
of the Security Pacific Loan and the deferred obligation (in the approximate
amount of One Million Fifty-Four Thousand Dollars ($1,054,000)) owed to The
Irvine Company, is equal to Eight Million Dollars ($8,000,000) and the assets
of the Partnership shall be adjusted on the Partnership's books to reflect such
amount as of July 23, 1990. In furtherance of the foregoing, the Partners
hereby agree that the restated Capital Account and Unrecovered Contribution
Account balances of the Partners as of July 23, 1990 (taking into account the
initial capital contributions made to the Partnership by SMI and A&J pursuant
to Section 4.02 above) shall be as follows:
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Restated Capital
Account and Unrecovered
Partner Contribution Balances
- ------- -----------------------
IMA Corp. $8,000,000
Hegness -0-
SMI $3,000,000
A&J $3,000,000
4.04 Partial Repayment of the Security Pacific Loan. The Partners hereby
acknowledge and agree that (i) the Partnership previously had outstanding
indebtedness in the principal amount of approximately Eight Million Dollars
($8,000,000) owed to Security Pacific National Bank (the "Security Pacific
Loan"), and (ii) the entire capital contributions of SMI and A&J made pursuant
to Section 4.02 above were utilized to repay a portion of the outstanding
balance of the Security Pacific Loan.
4.05 Additional Capital Contributions. Any decision to require additional
capital contributions to be made by the Partners for other than operating
deficits including, without limitation, to fund capital improvements for the
Project, shall be made by the unanimous approval of the Management Committee in
accordance with the provisions of Article II. In the event the Partnership
requires financing to fund operating deficits in addition to the initial
capital contributions of SMI and A&J set forth in Section 4.02 above, as
reasonably determined by any one of IMA Corp., SMI or A&J, then such
determining Partner shall give written notice of such operating deficit to all
of the Partners, which notice, in the event such determining Partner is an
Operating Partner as of the effective date of such notice, shall summarize,
with reasonable particularity, the Partnership's actual and projected cash
obligations, cash on hand, and the projected sources and amounts of future cash
flow and which notice shall also specify a contribution date ("Contribution
Date") (which shall not be less than fifteen (15) days following the effective
date of such notice) upon which each Partner shall have the obligation to
contribute to the capital of the Partnership, in cash, such Partner's
Percentage Interest (as of the Contribution Date) of such cash deficit ("Cash
Deficit Contribution"). Any and all amounts contributed by a Partner to the
capital of the Partnership pursuant to this Section 4.05 shall be credited to
each of the Capital Account and the Unrecovered Additional Contribution Account
of such Partner concurrently with the contribution of same.
4.06 Remedy for Failure to Contribute Capital. If any Partner (the
"Non-Contributing Partner") fails to contribute all or any portion of the Cash
Deficit Contribution or any other amount required to be made by such Partner
pursuant to Section 4.05 ("Delinquent Contribution"), and provided that one or
more of the other Partners (collectively, the "Contributing Partners") have
contributed to the capital of the Partnership all of the Cash Deficit
Contribution or any other amount required to be made by such Contributing
Partner(s) pursuant to Section 4.05, then such Contributing Partner(s), in
addition to any other remedies or rights the Contributing Partner(s) may have
at law or in equity, shall have the following options:
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(a) Subject to Section 4.06(c), the Contributing Partner(s) may
advance to the Partnership, in cash, within thirty (30) days following the
Contribution Date and in proportion to the respective Percentage Interests
(as of the Contribution Date) of the Contributing Partner(s) electing the
option specified in this Section 4.06(a) (or in such different proportion
as they may otherwise unanimously agree) an amount equal to the Delinquent
Contribution, and such advance shall be treated as a recourse loan
("Partner Loan") made by such Contributing Partner(s) to the
Non-Contributing Partner, bearing interest at a rate equal to the lesser
of (i) the prevailing Wells Fargo Bank commercial reference (prime)
lending rate plus four (4) percentage points, adjusted and compounded on
the first day of each month during the term of such Partner Loan, or (ii)
the maximum, non-usurious rate then permitted by law for such loans. Each
Partner Loan, subject to the provisions of Section 3.03(f), shall be due
and payable in full six (6) months from the date such loan was advanced,
and thereafter on demand. As of the effective date of any such advance of
a Partner Loan, the Non-Contributing Partner shall be deemed to have
contributed an amount equal to the principal amount of such Partner Loan
to the capital of the Partnership, and each of the Capital Account and the
Unrecovered Additional Contribution Account of the Non-Contributing
Partner shall be credited with a like amount. Notwithstanding the
provisions of Articles VI and VIII hereof, until any and all Partner Loans
advanced to a Non-Contributing Partner are repaid in full, such
Non-Contributing Partner shall draw no further distributions from the
Partnership, and all cash or other property otherwise distributable with
respect to the Non-Contributing Partner's Partnership Interest shall be
distributed to the Contributing Partner(s) which have advanced Partner
Loan(s) to such Non-Contributing Partner, in proportion to (and as a
reduction of) the outstanding balance of (together with all accrued,
unpaid interest on) such Partner Loan(s), with such funds being applied
first to reduce any unpaid interest accrued on such Partner Loan(s) and
then to reduce the principal amount thereof. Any amounts so applied shall
be treated, for all purposes under this Agreement, as having actually been
distributed to the Non-Contributing Partner and used by the
Non-Contributing Partner to repay such outstanding Partner Loan(s). To
secure the repayment of any and all Partner Loans made on behalf of a
Non-Contributing Partner, such Non-Contributing Partner hereby grants a
security interest in favor of the Contributing Partner(s) advancing such
Partner Loan(s), in and to all distributions to which such
Non-Contributing Partner may be entitled under this Agreement and hereby
irrevocably appoints such Contributing Partner(s), and any of such
Contributing Partners(s) respective agents, employees or other
representatives, as such Non-Contributing Partner's attorney(s)-in-fact,
with full power to prepare, execute, acknowledge, and deliver, as
applicable, all documents, instruments, and/or agreements memorializing
and/or securing such Partner Loan(s), including, without limitation, such
Uniform Commercial Code financing and continuation statements, mortgages,
and other security instruments as may be reasonably appropriate to perfect
and continue such security interest in favor of such Contributing
Partner(s). The special power of attorney so granted by a Non-Contributing
Partner shall be deemed to be coupled with an interest and shall be
irrevocable.
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If, upon the maturity of a Partner Loan or any portion thereof
(taking into account any extensions thereof) any principal thereof and/or
accrued interest thereon remains outstanding, each Contributing Partner
that previously advanced such Partner Loan or portion thereof may elect
any one of the following options (in addition to all other rights such
Contributing Partner may have at law or in equity): (i) to demand
immediate repayment of such Partner Loan (or portion thereof); (ii) to
renew such Partner Loan (or portion thereof) pursuant to the terms and
provisions of this Section 4. 06(a) ; or (iii) to contribute the
outstanding principal of and/or accrued, unpaid interest on such Partner
Loan (or portion thereof) to the capital of the Partnership and dilute the
Percentage Interest of the Non-Contributing Partner pursuant to Section
4.06(b). Any such lending Contributing Partner may elect any of the
options set forth in the immediately preceding sentence by giving written
notice of such election to the Non-Contributing Partner within thirty (30)
days following such maturity date. Failure of any such lending
Contributing Partner to give such written notice to such Non-Contributing
Partner shall be deemed to constitute an election by such lending
Contributing Partner to renew such Partner Loan for an additional term of
six (6) months on the terms set forth herein. Notwithstanding the
foregoing provisions of this Section 4.06(a) and the provisions of Section
4.06(b), such Non-Contributing Partner shall have the right, but not the
obligation, to repay any Partner Loan or portion thereof (together with
all accrued, unpaid interest thereon) which a lending Contributing Partner
has elected to contribute to the capital of the Partnership pursuant to
Section 4.06(b) within thirty (30) days following the effective date of
such written notice setting forth such contribution election and thereby
avoid dilution of such Non-Contributing Partner's Percentage Interest
pursuant to Section 4.06(b);
(b) Subject to Section 4.06(c), the Contributing Partner(s) may
contribute to the capital of the Partnership, in cash, within ten (10)
days following the Contribution Date and in proportion to the respective
Percentage Interests of the Contributing Partner(s) electing the option
pursuant to this Section 4.06(b) (or in such different proportion as they
may otherwise unanimously agree), an amount equal to the Delinquent
Contribution, and such Contributing Partner's respective Capital
Account(s) and Unrecovered Additional Contribution Account(s) shall each
be credited with the respective amounts so contributed by such
Contributing Partners. Upon the maturity of a Partner Loan that is not
fully repaid on or before the maturity thereof, each Contributing Partner
advancing such Partner Loan (or any portion thereof) also may contribute
to the capital of the Partnership, in accordance with the provisions of
Section 4.06(a) above and in proportion to the respective Percentage
Interests of such lending Contributing Partners electing the option
pursuant to Section 4.06(a) above (or in such different proportion as they
may otherwise unanimously agree), the outstanding principal of and/or
accrued, unpaid interest on such Partner Loan (or portion thereof)
previously advanced by such Contributing Partner(s) that is not repaid on
or before the maturity thereof. In the event of any such contribution of a
Partner Loan (or any portion thereof) by a Contributing Partner who
previously advanced such Partner Loan (or portion thereof), (i) the amount
of the outstanding principal and/or accrued, unpaid interest on such
Partner Loan (or portion thereof) so contributed shall be deemed repaid
and satisfied and (ii) each of the Capital Account and the Unrecovered
Additional Contribution Account of the relevant
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Non-Contributing Partner shall be debited, and each of the Capital Account
and the Unrecovered Additional Contribution Account of such Contributing
Partner shall be credited, by the amount of such outstanding principal
and/or interest so contributed. In the event of any contribution by one or
more Contributing Partners pursuant to this Section 4.06(b), the
Percentage Interest of the relevant Non-Contributing Partner in Net
Profits and Cash Flow (and Net Losses if a Majority-in-Interest of the
Contributing Partners electing the option pursuant to this Section 4
.06(b) so agree) shall be decreased, as of the Contribution Date (or the
date the pertinent Partner Loan or portion thereof is contributed to the
capital of the Partnership, as the case may be) by one percentage point
(or fraction thereof, as the case may be, but rounded to the nearest
one-hundredth of one percentage point) for each Fifty Thousand Dollars
($50,000) (or proportionate fraction thereof, as the case may be) of the
Delinquent Contribution (or of the outstanding principal of and/or
accrued, unpaid interest on a Partner Loan, as the case may be)
contributed by such Contributing Partner(s) pursuant to this Section
4.06(b). The Percentage Interests of the relevant Contributing Partner(s)
electing the option pursuant to this Section 4.06(b) shall be increased,
in the aggregate, by a like amount in proportion to the portion of the
Delinquent Contribution (or the outstanding principal of and accrued,
unpaid interest on any Partner Loan or portion thereof), as the case may
be, contributed by each such Contributing Partner to the capital of the
Partnership pursuant to this Section 4.06(b); provided; however, such
Contributing Partner(s) shall in no event succeed to all or any portion of
the Capital Account, the Unrecovered Contribution Account and/or the
Unrecovered Additional Contribution Account of the relevant
NonContributing Partner by operation of this Section 4.06(b). For example,
if (i) the Percentage Interest of the Non-Contributing Partner were equal
to twenty percent (20%) and (ii) the amount of the Delinquent
Contributions contributed to the Partnership by two (2) Contributing
Partners with Percentage Interests equal to thirty percent (30%) and ten
percent (10%), respectively, on behalf of the Non-Contributing Partner
were equal to Four Hundred Fifty Thousand Dollars ($450,000), and One
Hundred Fifty Thousand Dollars ($150,000), respectively, then the
Percentage Interest of the Non-Contributing Partner would be decreased by
twelve (12) percentage points ($600,000/$50,000) from twenty percent (20%)
to eight percent (8%), and the Percentage Interests of the Contributing
Partners would be increased, in the aggregate, by a like amount of
percentage points so that their respective Percentage Interests would
equal, immediately following such dilution, thirty-nine percent (39%) and
thirteen percent (13%), respectively.
(c) Notwithstanding any provision contained in this Section .4.06, in
the event that either Hegness, on the one hand, or A&J, on the other hand,
is a Non-Contributing Partner, then IMA Corp., in the first instance, and
SMI, in the second instance, (but not any other Partner) for a period
often (10) days after the date such contribution was required to be made
by such Non-Contributing Partner, shall have the right, but not the
obligation, (i) to elect to pursue any rights or remedies IMA Corp. or
SMI, as the case may be, may have against such Non-Contributing Partner at
law or in equity by delivering written notice of such election within such
ten (10) day period or (B) exercise any of the remedies set forth in
Sections 4.06(a) and/or 4.06(b) above. Following the
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expiration of such ten (10) day period, if IMA Corp. or SMI, as the case
may be, has failed to elect to exercise any of such remedies, then any
Contributing Partner (including IMA Corp. and/or SMI) may exercise any
remedy such Partner may have against the Non-Contributing Partner at law
or in equity, as well as either or both of the remedies set forth in
Sections 4.06(a) and/or 4.06(b) above, all in accordance with the
provisions of this Section 4.06.
(d) Notwithstanding any provision contained in Section 4.06(b), the
Non-Contributing Partner's Percentage Interest shall in no event be
reduced below one-tenth one percentage point, the Partners Percentage
Interest, by operation of Section 4.06(b). In the event that the
Non-Contributing Partner's Percentage Interest in Cash Flow and Net
Profits is reduced to the Minimum Percentage Interest, then the
Non-Contributing Partner shall remain as a partner in the Partnership with
all of the rights, duties and obligations of a partner under this
Agreement.
4.07 Capital Contributions in General. Except as otherwise expressly
provided in this Agreement or as may otherwise be unanimously agreed in writing
by all of the Partners, (i) no part of the contributions of any Partner to the
capital of the Partnership may be withdrawn by such Partner, (ii) no Partner
shall be entitled to receive interest on such Partner's contributions to the
capital of the Partnership, (iii) no Partner shall have the right to demand or
receive property other than cash in return for such Partner's contribution to
the Partnership, and (iv) no Partner shall be required or entitled to
contribute additional capital to the Partnership other than as permitted or
required under this Article IV and/or Section 8.03.
ARTICLE V
ALLOCATION OF PROFITS AND LOSSES
5.01 Net Losses from Operations. Net Losses resulting f rom the operations
of the Partnership (as distinguished from an Extraordinary Event) for each
fiscal year (or part thereof) shall be allocated at the end of such fiscal year
(or part thereof) to the Partners in proportion to their respective Percentage
Interests.
5.02 Net Losses from Extraordinary Events. Net Losses resulting from the
occurrence of an Extraordinary Event or the Liquidation of the Partnership, as
the case may be, shall be allocated (i) after adjusting the Capital Accounts of
the Partners for all previous allocations of Net Profits and Net Losses
resulting from the operations of the Partnership and all previous distributions
of Cash Flow for the fiscal year of such Extraordinary Event, but prior to the
distribution of Cash Flow resulting from such Extraordinary Event and/or the
proceeds from the Liquidation of the Partnership, as the case may be, or (ii)
at the end of the fiscal year in which such Extraordinary Event occurred but
following the adjustments to the Partners respective Capital Accounts
referenced above in clause (i) of this Section, whichever occurs earlier, in
the following order of priority:
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(a) First, to the Partners, in proportion to, and to the extent of,
the amount by which the cumulative Net Profits previously allocated to
each such Partner pursuant to Section 5.04(e) exceeds the cumulative Net
Losses previously allocated to each such Partner pursuant to this Section
5.02(a);
(b) Second, to IMA Corp., until the cumulative Net Losses allocated
to IMA Corp. pursuant to this Section 5.02(b) equals Four Million Dollars
($4,000,000);
(c) Third, fifty percent (50%) to IMA Corp., twenty-five percent
(25%) to A&J and twenty-five percent (25%) to SMI until the cumulative Net
Losses allocated to all of such Partners pursuant to this Section 5.02(c)
equals Ten Million Dollars ($10,000,000);
(d) Fourth, to the Partners in proportion to, and to the extent of,
their respective positive capital account balances, if any; and
(e) Thereafter, to the Partners in proportion their respective
Percentage Interests.
5.03 Net Profits form Operations. Net Profits resulting from the
operations of the Partnership (as distinguished from an Extraordinary Event)
for each fiscal year (or part thereof) shall be allocated at the end of such
fiscal year (or part thereof) in the following order of priority:
(a) First, to SMI, based upon such Partner's Percentage Interest, to
A&J, based upon such Partner's Percentage Interest and to IMA Corp., based
upon the Koll Partners' Percentage Interests, until such time as the
Partnership has distributed to each Partner the entire amount of Cash Flow
each such Partner is entitled to receive pursuant to Sections 6.01(a),
6.01(c), 6.01(d), and/or 6.01(e), if any; and
(b) Thereafter, to the Partners in proportion to their respective
Percentage Interests.
5.04 Net Profits form Extraordinary Events. Net Profits resulting from the
occurrence of an Extraordinary Event or upon the Liquidation of the
Partnership, as the case may be, shall be allocated (i) after adjusting the
Capital Accounts of the Partners for all previous allocations of Net Profits
and Net Losses resulting from the operations of the Partnership and all
previous distributions of Cash Flow for the fiscal year of such Extraordinary
Event, but prior to the distribution of Cash Flow resulting from such
Extraordinary Event and/or the proceeds from the Liquidation of the
Partnership, as the case may be, or (ii) at the end of the fiscal year in which
such Extraordinary Event occurred but following the adjustments to the
Partners' respective Capital Accounts referenced above in clause (i) of this
Section, whichever occurs earlier, in the following order of priority:
(a) First, to the Partners in proportion to, and to the extent of,
the amount by which the cumulative Net Losses previously allocated to each
such Partner pursuant to
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Section 5.02(e) exceeds the cumulative Net Profits previously allocated to
each such Partner pursuant to this Section 5.04(a);
(b) Second, to the Partners in proportion to, and to the extent of,
the amount by which the cumulative Net Losses previously allocated to each
such Partner pursuant to Section 5.02(d) exceeds the cumulative Net
Profits previously allocated to each such Partner pursuant to this Section
5.04(b);
(c) Third, to IMA Corp. , SMI and A&J in proportion to, and to the
extent of , the amount by which the cumulative Net Losses previously
allocated to each such Partner pursuant to Section 5.02(c) exceeds the
cumulative Net Profits previously allocated to each such Partner pursuant
to this Section 5.04(c);
(d) Fourth, to IMA Corp. to the extent by which the cumulative Net
Losses previously allocated to IMA Corp. pursuant to Section 5.02(b)
exceeds the cumulative Net Profits previously allocated to IMA Corp.
pursuant to this Section 5.04(d);
(e) Thereafter, to the Partners in proportion to their respective
Percentage Interests.
5.05 Special Allocation of Gross Income to SMI, A&J and Hegness.
Notwithstanding the provisions of Section 5. 04 (e), in the event that at any
time prior to the occurrence of the relevant Extraordinary Event referenced in
Section 5.04, Net Profits are allocated to IMA Corp. pursuant to Section
5.03(a) have otherwise been allocated to Hegness if such Net Profits had been
allocated pursuant to the provisions of Section 5.03(b) ("Disproportionate
Allocation"), then (i) any Gross Income realized by the Partnership as the
result of such Extraordinary Event shall be allocated (A) first, to SMI, A&J
and Hegness to the extent of, and in proportion to, the aggregate amount of Net
Profits that would otherwise be allocated to such Partners pursuant to Section
5.04(e) if the provisions of this Section 5.05 were not taken into account, and
(B) thereafter, to Hegness to the extent of the aggregate amount of any and all
Disproportionate Allocations, and (ii) after taking into account the provisions
of clause (i) above, any remaining Net Profits allocable under Section 5.04(e)
or Net Losses (which are created as the result of such Gross Income
allocations), as the case may be, shall be allocated one hundred percent (100%)
to IMA Corp.
5.06 Minimum Gain Chargeback and Excess Nonrecourse Liabilities.
Notwithstanding any other provision in this Article V, (i) any and all
"nonrecourse deductions" (as defined in Treasury Regulation Sections l.704-1T
(b) (4) (iv) (a) (1) and 1.704-1T (b) (4) (iv) (b)) of the Partnership for any
fiscal year or other period shall be allocated to the Partners in proportion to
their respective Percentage Interests; and (ii) each Partner shall be specially
allocated items of Partnership income and gain in accordance with the minimum
gain chargeback requirements set forth in Treasury Regulation Sections l.704-1T
(b) (4) (iv) (e) and 1.704-1T (b) (4) (iv) (f). Any and all "excess nonrecourse
liabilities" (as determined in accordance with the provisions of Treasury
Regulation Sec Section 1.752-1T (e) (3) (ii) (B)) shall be allocated to the
Partners in proportion to their respective Percentage Interests.
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5.07 Differing Tax Basis; Tax Allocation. The Partners shall cause
depreciation and/or cost recovery deductions and gain or loss with respect to
each item of property treated as contributed to the capital of the Partnership
to be allocated among the Partners for federal income tax purposes in
accordance with the principles of Section 704(c) of the Code and the Treasury
Regulations promulgated thereunder, and for state income tax purposes in
accordance with comparable provisions of the California Revenue & Taxation
Code, as amended, and the regulations promulgated thereunder, so as to take
into account the variation, if any, between the adjusted tax basis of such
property and its book value (as determined for purposes of the maintenance of
Capital Accounts in accordance with this Agreement and Treasury Regulation
Section 1.704-1 (b) (2) (iv) (g)).
5.08 Interpretation of Allocations. The allocation provisions contained in
this Article V are intended to comply with, and shall be interpreted and
construed consistently with, the provisions of Sections 704(b), 704(c) and 752
of the Code and the Treasury Regulations promulgated thereunder. To the extent
any allocation is mandated by such Code Sections or such Treasury Regulations
to be made in a manner different than expressly provided herein or in a manner
not specifically provided herein such allocation shall be made in accordance
with the requirement of the applicable Code Sections and/or Treasury
Regulations to the extent reasonable and economically consistent with the
interests of the Partners in the Partnership, taking into account the disparity
in such interests created by the Partners' respective Capital Account,
Unrecovered Additional Contribution Account and/or Unrecovered Contribution
Account balances.
ARTICLE VI
DISTRIBUTIONS
6.01 Distribution of Cash Flow. Subject to Section 8.02, Cash Flow of the
Partnership which is determined pursuant to this Agreement with respect to any
fiscal year shall be distributed to the Partners in the following order of
priority:
(a) First, fifty percent (50%) to each of A&J and SMI until the
cumulative and collective distributions made pursuant to this Section
6.01(a) equal Two Million Dollars ($2,000,000);
(b) Second, to repay the entire remaining outstanding balance of the
Security Pacific Loan (including any and all accrued and unpaid interest
thereon);
(c) Third, to the Partners to the extent of, and in proportion to,
their respective positive Unrecovered Additional Contribution Account
balances, if any;
(d) Fourth, sixty percent (60%) to IMA Corp. and twenty percent (20%)
to each of SMI and A&J until the cumulative and collective distributions
made pursuant to this Section 6.01(d) equal Ten Million Dollars
($10,000,000);
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(e) Fifth, one hundred percent (100%) to IMA Corp. until the
cumulative distributions made pursuant to this Section 6.01(e) equal Two
Million Dollars ($2,000,000); and
(f) Thereafter, to the Partners in proportion to their respective
Percentage Interests.
6.02 In-Kind Distribution. Assets of the Partnership (other than cash)
shall not be distributed in kind to the Partners without the prior written
approval of all of the Partners. If any assets of the Partnership are
distributed to the Partners in kind, then for purposes of this Agreement, such
assets shall be valued on the basis of the agreed upon fair market value
thereof (without taking into account Section 7701(g) of the Code) on the date
of distribution, and any Partner entitled to any interest in such assets shall
receive such interest as a tenant-in-common with the other Partner(s) so
entitled with an undivided interest in such assets in proportion to their
respective Capital Accounts (after taking into account all Capital Account
adjustments, including any book-up or book-down caused by such distribution) or
as such Partners may otherwise unanimously agree. Upon such distribution, the
Capital Accounts of the Partners shall be adjusted to reflect the amount of
gain or loss that would have been allocated to the Partners pursuant to the
appropriate provisions of this Agreement had the Partnership sold the assets
being distributed for their agreed upon fair market value (taking into account
Section 7701(g) of the Code) immediately prior to their distribution.
ARTICLE VII
RESTRICTIONS ON TRANSFER OF
PARTNERSHIP INTEREST
7.01 Limitations on Transfer. Except as expressly provided in this Article
VII and in Section 3.03, no Partner shall sell, exchange, assign, transfer,
pledge, mortgage, encumber, grant a security interest in or otherwise dispose
of or hypothecate, directly or indirectly, all or any part of such Partner's
Partnership Interest, without the prior written consent of each of IMA Corp.,
SMI and A&J, which consent may be withheld in any of such Partner's sole
discretion. Any transfer or attempted transfer by a Partner of all or any
portion of such Partner's Partnership Interest in violation of the restrictions
against transfer set forth in this Article VII shall be deemed null and void ab
initio and of no force or effect.
7.02 Right of First Refusal With Respect to IMA Corp. If IMA Corp. desires
to transfer or otherwise dispose of all or any portion of the Partnership
Interest of IMA Corp. (the "IMA Corp. Offered Interest"), then IMA Corp. shall
give written notice ("IMA Corp. Offering Notice") to each of SMI and A&J
(collectively, the "Non-Transferring Partners") of IMA Corp.'s intention to so
transfer. The IMA Corp. Offering Notice shall specify the IMA Corp. Offered
Interest to be transferred, the consideration to be received therefor, the
identity of the proposed purchaser, and the terms upon which IMA Corp. intends
to so transfer. For a period of ten (10) days following the effective date of
the IMA Corp. Offering Notice each Non-Transferring
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Partner shall have the option to purchase all but not less than all, of the IMA
Corp. Offered Interest for the price and on the terms stated in the IRA Corp.
Offering Notice. If more than one Non-Transferring Partner timely and validly
elects to so purchase all of the IMA Corp. Offered Interest, then such
Non-Transferring Partners shall purchase the IMA Corp. Offered Interest in
proportion to their respective Percentage Interests as of the effective date of
the IMA Corp. Offering Notice (or in such different proportion as such
Non-Transferring Partners may unanimously agree). If the Non-Transferring
Partners, or any of them, timely and validly elect to so purchase all of the
IMA Corp. Offered Interest within the time period specified, then the transfer
of the IMA Corp. Offered Interest from IMA Corp. to the Non-Transferring
Partner(s) so electing shall be closed and consummated at the principal place
of business of the Partnership upon the later of the closing set forth in the
IMA Corp. Offering Notice or thirty (30) days following the effective date of
the last delivered purchase-election notice of the Non-Transferring Partner(s).
If, within the ten (10)-day period during which the Non-Transferring Partners
have the right to purchase the IMA Corp. Offered Interest, none of the
Non-Transferring Partners timely and validly elects to purchase all of the IMA
Corp. Offered Interest in accordance with this Section 7.02, then IMA Corp.
may, within one hundred twenty (120) days following the expiration of said ten
(10)-day period, transfer the entire IMA Corp. Offered Interest to the person
or entity identified in the IMA Corp.
7.03 Right of First Refusal/Right of Co-Sale With Respect to SMI and A&J..
If either SMI, on the one hand, or A&J, on the other hand, desires to transfer
or otherwise dispose of all or a proportionate share of the entire Partnership.
Interest of such Partner (the "S/G Offered Interest"), then such Partner (the
"Selling Partner") shall give written notice (the "S/G Offering Notice") to
whichever of SMI or A&J is not the Selling Partner (the "Non-Selling Partner")
and IMA Corp. of the Selling Partner's intention to so transfer. The SIG
Offering Notice shall specify the SIG Offered Interest to be transferred, the
consideration to be received therefor, the identity of the proposed purchaser,
and the terms upon which the Selling Partner intends to so transfer. For a
period of ten (10) days following the effective date of the SIG Offering
Notice, the Non-Selling Partner shall have the option to purchase all, but not
less than all, of the S/G Offered Interest for the price and on the terms
stated in the S/G Offering Notice. If the Non-Selling Partner timely and
validly elects to so purchase all of the S/G Offered Interest then the transfer
of the S/G Offered Interest from the Selling Partner to the Non-Selling Partner
shall be closed and consummated at the principal place of business of the
Partnership upon the later of the closing set forth in the S/G Offering Notice
or thirty (30) days following the effective date of the purchase-election
notice delivered by the Non-Selling Partner. If the Non-Selling Partner fails
to timely and validly elect to purchase all of the S/G Offered Interest within
the ten (10)-day period set forth above, then for a period of fifteen (15) days
following the expiration of such ten (10)-day period, IMA Corp. shall have the
right, but not the obligation, (i) to purchase all, but not less than all, of
the S/G Offered Interest for the price and on the terms stated in the S/G
Offering Notice in accordance with the provisions set forth below or (ii) to
require the Selling Partner to cause the sale to the proposed purchaser of the
portion of the Partnership Interests of the Koll Partners that corresponds to
the Proportionate Share of the S/G Offered Interest. It is the intention of the
Partners that the portion of the Partnership Interests of the Koll Partners
that is transferred as a result of the exercise by IMA Corp. of the co-sale
provision described in clause (ii) above shall to the extent possible be
identical in all respects to the additional portion of the
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Partnership Interest which would have been transferred by the Selling Partner
in connection therewith if IMA Corp. had not so elected, including, without
limitation, the portion of the Capital Account, Unrecovered Contribution
Account and/or Unrecovered Additional Contribution Account so transferred, the
Percentage Interest, and the priority rights relative to distributions of Cash
Flow and allocations of Net Profits and Net Losses. Accordingly, to the extent
possible, appropriate adjustment shall be made to the Partnership Interests of
the Koll Partners so transferred so as to take into account the disparities in
the interests of the Partners relative to the items described in the preceding
sentence. The purchase price payable by such proposed purchaser to the Selling
Partner and the Koll Partners shall be proportionately allocated between the
Selling Partner and the Koll Partners so as to take into account the foregoing
proportionate purchases of such Partnership Interests, and shall otherwise be
on the same terms and conditions set forth in the SIG Offering Notice.
If IMA Corp. timely and validly elects to purchase all of the S/G Offered
Interest within the fifteen (15)-day period set forth above in accordance with
clause (i) above, then the transfer of the S/G Offered Interest from the
Selling Partner to IMA Corp. shall be closed and consummated at the principal
place of business of the Partnership upon the later of the closing set forth in
the S/G Offering Notice or thirty (30) days following the effective date of the
purchase-election notice delivered to the Selling Partners by IMA Corp. If IMA
Corp. timely and validly elects to require the Selling Partner to cause the
sale of a portion of the Partnership Interests of the Koll Partners pursuant to
clause (ii) above, then the transfer of the proportionate Partnership Interests
of the Koll Partners and the Selling Partner shall be closed and consummated in
accordance with the terms and conditions of the S/G Offering Notice. In the
event IMA Corp. fails to timely and validly elect either of the options set
forth in clauses (i) and (ii) above, then the Selling Partner may, within one
hundred twenty (120) days following the expiration of said fifteen (15)-day
period, transfer the entire S/G Offered Interest to the person or entity
identified in the S/G Offering Notice, on the same terms and conditions and at
the same price specified in the S/G Offering Notice. If the Selling Partner
fails to so transfer the S/G Offered Interest within such one hundred twenty
(120)-day period, then, prior to transferring the S/G Offered Interest, the
Selling Partner shall and must resubmit a S/G Offering Notice to the
Non-Selling Partner and IMA Corp., and again comply with the foregoing
provisions of this Section 7.03.
7.04 Right of First Refusal With Respect to Hegness. If Hegness desires to
transfer or otherwise dispose of all or any portion of the Partnership Interest
of Hegness (the "Hegness Offered Interest"), then Hegness shall give written
notice ("Hegness Offering Notice") to SMI and A&J (collectively, the
Non-Assigning Partners") and IMA Corp. of the intention of Hegness to so
transfer. The Hegness Offering Notice shall specify the Hegness Offered
Interest to be transferred, the consideration to be received therefore, the
identity of the proposed purchaser, and the terms upon which Hegness intends to
so transfer. For a period of ten (10) days following the effective date of the
Hegness Offering Notice, IMA Corp. shall have the option to purchase all, but
not less than all, of the Hegness Offered Interest for the price and on the
terms stated in the Hegness Offering Notice. If IMA Corp. timely and validly
elects to so purchase a 11 of the Hegness Offered Interest then the transfer of
the Hegness Offered Interest from Hegness to IMA Corp. shall be closed and
consummated at the principal place of business of the Partnership
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within thirty (30) days following the effective date of the purchase-election
notice delivered by IMA Corp. If IMA Corp. does not timely and validly elect to
purchase all of the Hegness Offered Interest within the ten (10)-day period set
forth above, then each of the Non-Assigning Partners shall have the option for
a period of eleven (11) days following the expiration of such ten (10)-day
period to purchase all, but not less than all, of the Hegness Offered Interest
for the price and on the terms stated in the Hegness Offering Notice. If more
than one Non-Assigning Partner timely and validly elects to so purchase all of
the Hegness Offered interest, than such Non-Assigning Partner shall purchase
the Hegness Offered Interest in proportion to their respective Percentage
Interests as of the effective date of the Hegness Offering Notice (or in such
different proportion as such Non-Assigning Partners may unanimously agree). If
the Non-Assigning Partners, or any of them, timely and validly elects to so
purchase all of the Hegness Offered Interest within the time period specified,
then the transfer of Hegness Offered Interest from Hegness to the Non-Assigning
Partner(s) so electing shall be closed and consummated at the principal place
of business of the Partnership within thirty (30) days following the effective
date of the last delivered purchase-election notice of the Non-Assigning
Partner(s). If, within the eleven (11)-day period during which the
Non-Assigning Partners have the right to purchase the Hegness Offered Interest,
none of the Non-Assigning Partners timely and validly elects to purchase all of
the Hegness Offered Interest in accordance with this Section 7.04, then Hegness
may, within one hundred twenty (120) days following the expiration of said
eleven (11)-day period, transfer the entire Hegness Offered Interest to the
person or entity identified in the Hegness Offering Notice, on the same terms
and conditions and at the same price specified in the Hegness Offering Notice.
If Hegness fails to so transfer the Hegness Offered Interest within such one
hundred twenty (120)-day period, then, prior to transferring the Hegness
Offered Interest, Hegness shall and must resubmit a Hegness Offering Notice to
the other Partners and again comply with the foregoing provisions of this
Section 7.04.
7.05 Permitted Transfers. Notwithstanding the provisions of Section 7.01
and without complying with the provisions of Sections 7.02, 7.03 and 7.04, the
following Partners and constituent owners of Partners may transfer all or any
part of their respective Partnership Interests, or ownership interests in a
Partner, as the case may be, to the following (collectively, "Permitted
Transferees."):
(a) In the case of any Partner, any entity in which such Partner,
directly or indirectly, retains more than eighty percent (80%) of the
voting and/or beneficial ownership interests in such entity, provided that
any transfer of any ownership interest in such entity which results in
such Partner not owning, directly or indirectly, more than eighty percent
(80%) of the voting and/or beneficial ownership interests in such entity
shall constitute, notwithstanding anything to the contrary contained in
this Agreement, a non-permitted transfer);
(b) In the case of any constituent owner of IMA Corp., SMI and/or
A&J:
(i) Any inter vivos trust established for estate planning
purposes for the sole benefit of such owner, one or more members of
such owner's family that are related to such owner by blood (which
members shall include, without
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limitation, the spouse, adopted children, and step-children of such
owner) and/or any other lineal descendant's of such owner and in
which such owner is a trustee thereof; or
(ii) In the event of the death or adjudicated incompetence of
such owner, such owner's legal representatives, estate, heirs, or a
testamentary trust established for the sole benefit of one or more of
the members of such owner's family described in Section 7.05(b)(i)
above and/or any other lineal descendants of such owner.
(c) In the case of Hegness:
(i) Any inter vivos trust established for estate planning
purposes for the sole benefit of such Partner, one or more members of
such Partner's family that are related to such Partner by blood
(which members shall include, without limitation, the spouse, adopted
children, and step-children of such Partner) and/or any other lineal
descendant's of such Partner and in which such Partner is a trustee
thereof; or
(ii) In the event of the death or adjudicated incompetence of
such Partner, such Partner's legal representatives, estate, heirs, or
a testamentary trust established for the sole benefit of one or more
of the members of such Partner's family described in Section
7.05(c)(i) above and/or any other lineal descendants of such Partner.
Notwithstanding any other provision of this Article VII, no transfer by any
Partner or constituent owner of a Partner shall be permitted if the
consummation of such transfer would result in a breach or violation in (i) any
loan documentation relative to any indebtedness encumbering all or any portion
of the Project and/or (ii) any lease or sub-lease documentation relative to any
lease or sub-lease encumbering all or any, portion of the Project, and such
transfer restrictions are not waived by the applicable lender or the applicable
lessor (or sub-lessor), as the case may be.
7.06 Admission of Substituted Partners. If any Partner assigns or
otherwise transfers such Partner's Partnership Interest to a transferee in
accordance with this Article VII, and such transferee is designated by the
transferring Partner as a substituted partner, then such transferee shall be
entitled to be admitted into the Partnership as a substituted partner, and this
Agreement, the Fictitious Business Name Statement and the Statement of
Partnership for the Partnership shall be amended to reflect such admission,
provided that the following conditions are complied with:
(a) Each of the non-transferring Partners (other than Hegness)
reasonably approves the form and content of the instrument of assignment;
(b) The transferring Partner and such Partner's transferee execute
and acknowledge such other one or more instruments as each of the
non-transferring Partners
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(other than Hegness) may reasonably deem necessary or desirable to
effectuate such admission in accordance with this Article VII;
(c) The transferee in writing accepts and adopts all of the terms and
conditions of this Agreement, as the same may have been amended; and
(d) The transferring Partner or such Partner's transferee pays to the
Partnership, as each of the non-transferring Partners (other than Hegness)
may reasonably determine, all expenses incurred in connection with such
admission, including, without limitation, legal fees and costs (which
costs may include, for example, the cost of preparing, recording, filing
and/or publishing any amendment to the Statement of Partnership any
amendment to the Statement of Partnership and/or Fictitious Business Name
Statement to reflect such admission).
In the event of non-compliance by the transferring Partner or such Partner's
transferee with any of the provisions of paragraphs (a) through (d) of this
Section 7.06 within the time provided for the consummation of such transfer,
then such transfer shall be deemed null and void ab initio and of no force and
effect.
7.07 Restrictions on Transferees. A transferee of a Partnership Interest
who does not become a substituted partner in accordance with Section 7.06 above
shall have no right to require any information relating to the Partnership or
an accounting of the Partnership's transactions, to inspect the Partnership
books, or to vote on any of the matters as to which a Partner would be entitled
to vote under this Agreement. Such transferee shall only be entitled to receive
the share of the profits or other compensation by way of income, or the return
of such transferee's contributions, to which such transferee's assignor would
otherwise be entitled.
7.08 Election. In the event of a transfer of the Partnership Interest of
any Partner, the death of a Partner, or the distribution of any property of the
Partnership to a Partner, the Partnership may file, in the reasonable
discretion of the Management Committee, an election in accordance with
applicable Treasury Regulations to cause the basis of the Partnership property
to be adjusted for federal income tax purposes as provided by Sections 734 and
743 of the Code, provided such an adjustment results in a net increase to the
bases of the Partnership's assets. Subject to the provisions of Treasury
Regulation Section 1.704-1(b), adjustments to the adjusted tax basis of
Partnership property under Section 743 and 732(d) of the Code shall not be
reflected in the Capital Account of the transferee Partner or on the books of
the Partnership, and subsequent Capital Account adjustments for distributions,
depreciation, amortization, and gain or loss with respect to such property
shall disregard the effect of such basis adjustment.
7.09 Allocations Between Transferor and Transferee. Upon the transfer of
all or any part of the Partnership Interest of a Partner as hereinabove
provided or the dilution of a Partner's Percentage Interest pursuant to Section
4.06(b), Net Profits and Net Losses shall be allocated between the transferor
and transferee (or the Partners, in the case of any such dilution) on the basis
of the computation method which in the reasonable discretion of the Management
Committee is in the best interests of the Partnership, provided such method is
in conformity with
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the methods prescribed by Section 706 of the Code 1.706-1(c)(2)(ii).
Distributions of Cash Flow shall be made to the holder of record of the
Partnership Interest on the date of distribution. Except in the case of any
such dilution, and taking into account the adjustments set forth in Section
7.03, any transferee of a Partnership Interest shall succeed to the Capital
Account, and, if applicable, the Unrecovered Contribution Account and/or the
Unrecovered Additional Contribution Account of the transferor Partner to the
extent such accounts relate to the transferred interest; provided, however,
that if such transfer causes a termination of the Partnership pursuant to
Section 708(b)(1)(B) of the Code, the Capital Accounts of all Partners,
including the transferee, shall be redetermined as of the date of such
termination in accordance with Treasury Regulation Sections 1.704-1(b) and
1.704-IT(b).
7.10 Partition. No Partner shall have the right to partition any property
of the Partnership, or any interest therein, nor shall any Partner make
application to any court or authority to commence or prosecute any action or
proceeding for a partition thereof, and upon any breach of the provisions of
this Section 7.10 by any Partner, the other Partners (in addition to all rights
and remedies afforded by law or equity) shall be entitled to a decree or order
restraining or enjoining such application, actions or proceedings.
ARTICLE VIII
DISSOLUTION AND WINDING UP OF THE PARTNERSHIP
8.01 Events Causing Dissolution of the Partnership. In the event of any
Partner's bankruptcy or other withdrawal from the Partnership or the admission
of a new partner into the Partnership, the Partnership shall not dissolve or
terminate but shall continue without interruption or a break in continuity. The
Partnership shall, however, be dissolved upon the first to occur of any of the
following events:
(a) The expiration of the term of the Partnership unless such term
has been extended by the unanimous agreement of the Partners;
(b) The sale, transfer or other disposition (exclusive of an exchange
for other real property) of all or substantially all of the Project and
the collection by the Partnership of all Cash Flow derived therefrom; or
(c) The unanimous affirmative election of the Management Committee to
dissolve the Partnership.
8.02 Termination of the Partnership. Upon the Liquidation of the
Partnership caused by other than the termination of the Partnership under
Section 708(b)(1)(B) of the Code (in which latter case the Partnership shall
remain in existence in accordance with the provisions of such Section of the
Code), the Liquidator shall proceed to complete and conclude the affairs of the
Partnership. During such period of proceeding to the completion and conclusion
of the Partnership's affairs, the Net Profits, Net Losses, and cash
distributions of the Partnership shall
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continue to be shared by the Partners in accordance with this Agreement. The
assets of the Partnership shall be liquidated as promptly as consistent with
obtaining a fair value therefor, and the proceeds therefrom, to the extent
available, shall be applied and distributed by the Partnership on or before the
end of the taxable year of such Liquidation or, if later, within ninety (90)
days after such Liquidation, in the following order:
(a) First, to creditors, including Partners who are creditors, in the
order of priority as provided by law;
(b) Second, to the setting up of any reserves which the Liquidator
deems necessary, in the Liquidator's reasonable discretion, for any
contingent or unforeseen. liabilities or obligations of the Partnership;
and
(c) Thereafter, to the Partners in proportion to, and to the extent
of, the positive balance in each such Partner's Capital Account (after
taking into account all Capital Account adjustments for the taxable year
of such Liquidation).
Any amounts withheld for reserves pursuant to paragraph (b) of this
Section 8.02 shall be distributed to the Partners as soon as practicable, as
determined by the Liquidator, in proportion to the Partners' respective
positive Capital Account balances.
8.03 Negative Capital Account Restoration. Upon the Liquidation of the
Partnership (or upon the Liquidation of a Partner's Partnership Interest where
the Partnership is not in Liquidation), each Partner (or the relevant Partner
where the Partnership is not in Liquidation) shall be obligated to contribute
to the capital of the Partnership an amount equal to the negative balance, if
any, standing in such Partner's Capital Account (after taking into account all
Capital Account adjustments for all taxable years, including the year such
Liquidation occurs, and after adding a positive sum to such negative balance
(but only until such balance is increased to zero) equal to the amount of such
Partner's allocable share of minimum gain (as determined in accordance with the
provisions of Treasury Regulation Section 1.704-1T (b) (4) (iv) (f)) on or
before the end of the taxable year of such Liquidation or, if later, within
ninety (90) days after such Liquidation in compliance with Treasury Regulation
Section 1.704-1 (b). The entire amount so contributed shall be treated as
proceeds from the Liquidation of the Partnership and shall be applied to
satisfy any outstanding Partnership indebtedness and obligations, including,
without limitation, the Partnership's obligation to distribute to each Partner
having a positive Capital Account balance a sum equal to such positive balance.
8.04 Retirement or Withdrawal of a Partner. No Partner shall have the
right to voluntarily or involuntarily withdraw or retire from the Partnership
(by reason of such Partner's death, physical or mental incapacity, bankruptcy
or otherwise) and any such voluntary or involuntary withdrawal or retirement
shall constitute a breach of this Agreement unless such Partner's Partnership
Interest is transferred in accordance with the provisions of Section 8.03 or
Article VII. Each Partner hereby waives any of the rights or remedies available
to such Partner
- 31 -
(or such Partner's successor(s)-in-interest) pursuant to Section 15042 of the
California Corporations Code, as amended, to have the interest of such
withdrawing or retiring Partner purchased upon the withdrawal or retirement of
such Partner.
ARTICLE IX
ARBITRATION OF DISPUTES
ANY DISPUTE, CONTROVERSY OR OTHER CLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR THE BREACH OR INTERPRETATION THEREOF, SHALL BE SETTLED BY
ARBITRATION BEFORE THE JUDICIAL ARBITRATION AND MEDIATION SERVICE (THE
"SERVICE"), LOCATED AT 500 NORTH STATE COLLEGE BOULEVARD, SUITE 600, ORANGE,
CALIFORNIA 92668, IN ACCORDANCE WITH THE USUAL PROCEDURES OF THE SERVICE,
SUBJECT TO THE FOLLOWING PROVISIONS:
(a) THE PARTNER SEEKING ARBITRATION SHALL DELIVER A WRITTEN NOTICE OF
DEMAND TO RESOLVE DISPUTE (THE "DEMAND") TO THE OTHER PARTNERS AND TO THE
SERVICE. THE DEMAND SHALL INCLUDE A BRIEF STATEMENT OF SUCH PARTNER'S
CLAIM, THE AMOUNT THEREOF, AND THE NAME OF THE PROPOSED RETIRED JUDGE FROM
THE SERVICE TO DECIDE THE DISPUTE ("ARBITRATOR"). WITHIN TEN (10) DAYS
AFTER THE EFFECTIVE DATE OF THE DEMAND, EACH OTHER PARTNER AGAINST WHOM A
DEMAND IS MADE SHALL DELIVER A WRITTEN RESPONSE TO THE DEMANDING PARTNER
AND THE SERVICE. SUCH RESPONSE SHALL INCLUDE A SHORT AND PLAIN STATEMENT
OF THE NON-DEMANDING PARTNER'S DEFENSES TO THE CLAIM AND SHALL ALSO STATE
WHETHER SUCH PARTNER AGREES TO THE ARBITRATOR CHOSEN BY THE DEMANDING
PARTNER. IN THE EVENT THE PARTNERS CANNOT AGREE UPON AN ARBITRATOR, THEN
THE SERVICE SHALL SELECT AND NAME AN ARBITRATOR TO CONDUCT THE HEARINGS.
(b) THE LOCALE OF THE ARBITRATION SHALL BE IN ORANGE COUNTY,
CALIFORNIA.
(c) IN THE EVENT THE SERVICE IS NO LONGER IN BUSINESS AND THERE IS NO
COMPARABLE SUCCESSOR, THEN THE PARTIES SHALL AGREE UPON ANOTHER
ARBITRATOR. IF THE PARTIES CANNOT AGREE UPON ANOTHER ARBITRATOR, THEN A
SINGLE NEUTRAL ARBITRATOR SHALL BE APPOINTED PURSUANT TO SECTION 1281.6 OF
THE CALIFORNIA CODE 0.7 CIVIL PROCEDURE.
(d) IN THE EVENT THE CLAIM OR DISPUTE EQUALS OR EXCEEDS THE SUM OF
FIFTY THOUSAND DOLLARS ($50,000), THEN THE PARTNERS
- 32 -
SHALL BE ENTITLED TO FULL RIGHTS OF DISCOVERY AS SET FORTH IN THE
CALIFORNIA CODE OF CIVIL PROCEDURE FOR CIVIL ________ _____ IN THE
SUPERIOR COURTS OF THE STATE OF CALIFORNIA, SUBJECT TO SUCH ORDERS AS MAY
BE MADE BY THE SERVICE. IN THE EVENT THE DISPUTE BETWEEN THE PARTNERS IS
LESS THAN FIFTY THOUSAND DOLLARS ($50,000), THEN THERE SHALL BE NO RIGHT
TO DISCOVERY EXCEPT BY STIPULATION OF THE PARTIES OR PURSUANT TO THE
DISCRETION OF THE SERVICE. IN THE EVENT THE PARTNERS CANNOT AGREE AS TO
THE AMOUNT IN ISSUE, THE SERVICE SHALL HOLD A PRELIMINARY HEARING FOR THE
PURPOSE OF DETERMINING WHETHER THE AMOUNT IN ISSUE EQUALS OR EXCEEDS FIFTY
THOUSAND DOLLARS ($50,000).
(e) THE ARBITRATOR'S POWERS SHALL BE LIMITED AS FOLLOWS: THE
ARBITRATOR SHALL FOLLOW THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA,
INCLUDING RULES OF EVIDENCE, AND THE ARBITRATOR'S DECISION SHALL BE
SUBJECT TO REVIEW THEREON AS WOULD THE DECISION OF THE SUPERIOR COURT OF
THE STATE OF CALIFORNIA SITTING WITHOUT A JURY. THE ARBITRATOR SHALL NOT
CONSIDER ANYTHING OUTSIDE THE RECORD UNLESS NOTICE IS GIVEN TO ALL PARTIES
WITH THE OPPORTUNITY TO RESPOND TO SUCH MATTERS. THE ARBITRATOR SHALL HAVE
NO POWER TO MODIFY ANY OF THE PROVISIONS OF THIS AGREEMENT AND THE
ARBITRATOR'S JURISDICTION IS LIMITED ACCORDINGLY. THE ARBITRATOR SHALL
PREPARE AND SERVE A WRITTEN DECISION WHICH DETERMINES THE DISPUTE,
CONTROVERSY, OR CLAIM AND WHICH DESIGNATES THE PARTY AGAINST WHOSE
POSITION THE DECISION IS RENDERED. JUDGMENT UPON THE AWARD RENDERED BY THE
ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.
(f) THE COSTS OF THE RESOLUTION SHALL BE SPLIT EQUALLY BETWEEN THE
PARTNERS INVOLVED IN SUCH DISPUTE; PROVIDED, HOWEVER, THAT SUCH COSTS,
ALONG WITH ALL OTHER COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES, SHALL BE SUBJECT TO AWARD, IN FULL OR IN PART, BY THE
ARBITRATOR, IN THE ARBITRATOR'S DISCRETION, TO THE PREVAILING PARTY.
UNLESS THE ARBITRATOR SO AWARDS ATTORNEYS' FEES EACH PARTY SHALL BE
RESPONSIBLE FOR SUCH PARTY'S OWN ATTORNEYS' FEES.
(g) TO THE EXTENT POSSIBLE, THE ARBITRATION HEARINGS SHALL BE
CONDUCTED ON CONSECUTIVE DAYS, EXCLUDING SATURDAYS, SUNDAYS AND HOLIDAYS,
UNTIL THE COMPLETION OF THE CASE.
(h) IN CONNECTION WITH ANY ARBITRATION PROCEEDINGS COMMENCED
HEREUNDER, ANY PARTNER SHALL HAVE THE RIGHT TO JOIN ANY THIRD PARTIES IN
SUCH PROCEEDINGS IN ORDER TO RESOLVE
- 33 -
ANY OTHER DISPUTES, THE FACTS OF WHICH ARE RELATED TO THE MATTERS
SUBMITTED FOR ARBITRATION HEREUNDER.
(i) NOTWITHSTANDING ANY PROVISION CONTAINED IN THIS ARTICLE IX, NONE
OF THE PARTNERS MAY SEEK ARBITRATION UNDER THE PROVISIONS OF THIS ARTICLE
IX WITH RESPECT TO (i) ANY DECISION TO REMOVE THE OPERATING PARTNERS IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 2.04, (ii) ANY DETERMINATION OF
THE APPRAISED VALUE OF THE PARTNERSHIP INTEREST OF A&J IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.03, AND/OR (iii) ANY DECISION TO TERMINATE
AVALON ATTRACTIONS AS THE EXCLUSIVE BOOKING AGENT FOR THE PROJECT IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3.02(d).
NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE
ARISING OUT OF THE MATTERS INCLUDED IN THIS ARBITRATION OF DISPUTES PROVISION
DECIDED BY NEUTRAL ARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING
UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTE LITIGATED IN A COURT OR
JURY TRIAL. BY INITIALING IN THE SPACE BELOW YOU ARE GIVING UP YOUR JUDICIAL
RIGHTS TO DISCOVERY AND APPEAL EXCEPT TO THE EXTENT SUCH RIGHTS ARE
SPECIFICALLY INCLUDED IN THIS ARBITRATION OF DISPUTES PROVISION. IF YOU REFUSE
TO SUBMIT TO ARBITRATION AFTER AGREEING TO THESE PROVISIONS, YOU MAY BE
COMPELLED TO ARBITRATE UNDER THE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL
PROCEDURE E. YOUR AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY. WE HAVE
READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING OUT OF
THE MATTERS INCLUDED IN THIS ARBITRATION.
/s/ name illegible /s/ name illegible /s/ name illegible /s/ name illegible
- ------------------ ------------------ ------------------ ------------------
Initials of Initials of Initials of Initials of
IMA Corp Hegness SMI A&J
(j) THE COSTS OF THE RESOLUTION SHALL BE SPLIT EQUALLY BETWEEN THE
PARTNERS INVOLVED IN SUCH DISPUTE; PROVIDED, HOWEVER, "THAT SUCH COSTS,
ALONG WITH ALL OTHER COSTS AND EXPENSES, INCLUDING, WITHOUT LIMITATION,
ATTORNEYS' FEES, SHALL BE SUBJECT TO AWARD, IN FULL OR IN PART, BY THE
ARBITRATOR, IN THE ARBITRATOR'S DISCRETION, TO THE PREVAILING PARTY.
UNLESS THE ARBITRATOR SO AWARDS ATTORNEYS' FEES, EACH PARTY SHALL BE
RESPONSIBLE FOR SUCH PARTY'S OWN ATTORNEYS' FEES.
- 34 -
ARTICLE X
BOOKS AND RECORDS
10.01 Books of Account. The fiscal year and the taxable year of the
Partnership shall be the calendar year commencing January l and ending December
31. The Operating Partners shall maintain (or cause to be maintained) for the
Partnership true and accurate books, records, and accounts on an accrual basis
(for financial and income tax reporting purposes) in accordance with generally
accepted accounting principles on a consistent basis from year to year. All
books and records of the Partnership shall be kept and maintained at the
principal place of business of the Partnership or such other place as may be
designated by the Management Committee and, during regular and reasonable
business hours, shall be available for reasonable inspection, audit, and
duplication by any Partner or such Partner's designated representatives
(including, without limitation, attorneys, auditors, and accountants), at such
Partner's sole cost and expense.
10.02 Annual Reports and Tax Returns. Within ninety (90) days after the
close of each fiscal year, the Operating Partners shall cause to be prepared
and timely filed and distributed to each Partner, at the expense of the
Partnership, all required federal and California state partnership tax returns,
including information returns reflecting each Partner's distributive share of
tax items. Additionally, within ninety (90) days after the close of each fiscal
year, the Operating Partners shall cause to be prepared and distributed to each
Partner, at the expense of the Partnership, unaudited financial statements.
Such financial statements shall be prepared by the independent certified public
accountants for the Partnership (which shall not be changed without the prior
approval of the Management Committee) and shall include, without limitation, a
balance sheet of the Partnership as of the last day of such fiscal year, an
operating (income or loss) statement of the Partnership for such fiscal year, a
statement of each Partner's Capital Account as of the last day of such fiscal
year, and all other information customarily shown on financial statements
prepared in accordance with generally, accepted accounting principles,
consistently applied. Upon written request by IMA Corp., or SMI, in the event
SMI is not an Operating Partner, such financial statements shall be audited, at
the expense of the Partnership, by an independent certified public accountant
selected in the reasonable discretion of such requesting Partner.
10.03 Bank Accounts. All funds of the Partnership shall be deposited in
the Partnership's name in such bank account or accounts as shall be designated
by the Operating Partners. Disbursements and/or withdrawals from such one or
more accounts may be made only upon the signature of an authorized
representative of the Operating Partners. In the event the authority of the
Operating Partners is terminated pursuant to Section 2.04, then any
disbursements and/or withdrawals from such one or more accounts shall be made
only upon the signature of an authorized representative of the Management
Committee.
- 35 -
ARTICLE XI
MISCELLANEOUS
11.01 Notices. All notices, demands or other communications required or
permitted hereunder shall be in writing, and shall be delivered or sent, as the
case may be, by any of the following methods: (i) personal delivery; (ii)
overnight commercial carrier or delivery service; (iii) registered or certified
mail (with postage prepaid and return receipt requested); or (iv) telegraph,
telex, telecopy, or cable. Any such notice or other communication shall be
deemed received and effective upon the earlier of (i) if personally delivered,
the date of delivery to the address of the party to receive such notice; (ii)
if delivered by overnight commercial carrier or delivery service, one day
following the receipt of such communication by such carrier or service from the
sender, as shown on the sender's delivery invoice from such carrier or service,
as the case may be; (iii) if mailed, forty-eight (48) hours after the date of
posting as shown on the sender's registry or certification receipt; (iv) if
given by telegraph or cable, when delivered to the telegraph company with
charges prepaid; or (v) if given by telex or telecopy, when sent. Any notice or
other communication sent by cable, telex, or telecopy must be confirmed within
forty-eight (48) hours by letter mailed or delivered in accordance with the
foregoing. Any reference herein to the date of receipt, delivery, or giving, as
the case may be of any notice, date or other communication shall refer to the
date such communication becomes effective under the terms of this Section
11.01. The address for purposes of the giving of notices hereunder (i) to the
Partnership is the address set forth in Section 1.04 and (ii) to a Partner is
the address set forth for such Partner in Section 1.07. Notice of change of
address shall be given by written notice in the manner detailed in this Section
11.01. Rejection or other refusal to accept or the inability to deliver because
of changed address of which no notice was given shall be deemed to constitute
receipt of the notice or other communication sent.
11.02 Construction of Agreement. Article and Section headings of this
Agreement are used herein for reference purposes only and should not govern,
limit, or be used in construing this Agreement or any provision hereof. Each of
the Exhibits attached hereto is incorporated herein by reference and expressly
made a part of this Agreement for all purposes. References to any Exhibit made
in this Agreement shall be deemed to include this reference and incorporation.
Where the context so requires, the use of the neuter gender shall include the
masculine and feminine genders, the masculine gender shall include the feminine
and neuter genders, and the singular number shall include the plural and vice
versa. Time is of the essence of this Agreement. The provisions of this
Agreement shall be construed and enforced in accordance with the law of the
State of California. Except to the extent that the California Uniform
Partnership Act, as amended, is inconsistent with the provisions of this
Agreement (in which case this Agreement shall apply to the extent legally
permissible), the provisions of such Act shall apply to the Partnership. Each
party hereto acknowledges that (i) each party hereto is of equal bargaining
strength; (ii) each such party has actively participated in the drafting,
preparation, and negotiation of this Agreement; (iii) each party and such
party's counsel have reviewed this Agreement; and (iv) any rule of construction
to the effect that ambiguities to be
- 36 -
resolved against the drafting party shall not apply in the interpretation of
this Agreement, any portion hereof, any amendments hereto, or any Exhibits
attached hereto.
11.03 Successors and Assigns. Subject to the restrictions against
transfers set forth in Article VII, this Agreement shall inure to the benefit
of and shall bind the Parties hereto and their respective personal
representatives, successors, and assigns.
11.04 Survivability of the Letter Agreement. This Agreement hereby amends,
restates and supersedes any and all of the provisions of the Letter Agreement
except those provisions contained in Paragraphs 12 and 14 of the June 27
Agreement and the entire July 16 Amendment which shall remain in full force and
effect and shall survive the execution and delivery of this Agreement.
11.05 Entire Agreement. This Agreement, that certain letter agreement
dated June 30, 1990 (the "June 30 Agreement"), by and between Azoff and Geddes,
and the surviving provisions of the Letter Agreement described above in Section
11.04, contain the entire understanding among the parties hereto with respect
to the subject matter hereof and supersede any and all prior or other
contemporaneous understandings, correspondence, negotiations, or agreements
between them respecting the within subject matter. No alterations,
modification, or interpretations hereof shall be binding unless writing and
signed by all the Partners.
11.06 Counterparts and Execution. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original Agreement, but
all of which shall constitute one Agreement, binding upon the parties hereto.
The signature of any party hereto to any counterpart hereof shall be deemed a
signature to, and may be appended to, any other counterpart hereof.
11.07 Attorneys' Fees. Subject to the provisions of Article IX(f), should
any litigation be commenced between the Partners or their representatives
concerning any provision of this Agreement or the rights and duties of any
person or entity in relation thereto, the Partner prevailing in such
litigation, whether by out-of-court settlement or final judgment, shall be
entitled, in addition to such other relief as may be granted, to a reasonable
sum as and for attorneys' fees incurred in such litigation.
11.08 No Third Party Beneficiary. Any agreement to pay any amount and any
assumption of liability herein contained, express or implied, shall be only for
the benefit of the Partners and their respective successors and assigns, and
such Agreements and assumptions shall not inure to the benefit of the obligees;
of any indebtedness or any other party, whomsoever, deemed to be a third-party
beneficiary of this Agreement. In this regard, it is hereby expressly agreed
and understood that any right of the Partnership or the Partners to require any
additional capital contributions under the terms of this Agreement shall not be
construed as conferring any rights or benefits to or upon any party not a party
to this Agreement.
11.09 Other Acts. Each Partner covenants, on behalf of such Partner and
such Partner's successors and assigns, to execute, with acknowledgment,
verification, or affidavit, if required,
- 37 -
any and all documents and writings, and to perform any and all other acts, that
may be necessary or desirable to implement, accomplish, and/or consummate the
formation of the Partnership, the achievement of the Partnership's purposes, or
any other matter contemplated under this Agreement.
11.10 Severability. Every provision of this Agreement is intended to be
severable. If any term or provision hereof is illegal or invalid for any reason
whatsoever, then such illegality or invalidity shall not affect the validity of
the remainder of this Agreement.
11.11 Waiver. No consent or waiver, express or implied, by a Partner to or
of any breach or default by any other Partner in the performance by such other
Partner of such other Partner's obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in the
performance by such other Partner hereunder. Failure on the part of a Partner
to complain of any act or failure to act of any other Partner or to declare any
other Partner in default, irrespective of how long such failure continues,
shall not constitute a waiver by such non-complaining or non-declaring Partner
of the latter's rights hereunder.
11.12 Equitable Remedies; Remedies Cumulative. Except a otherwise provided
in this Agreement, each Partner, in addition to all other rights provided
herein or as may be provided by law shall be entitled to all equitable
remedies, including, without limitation, those of specific performance and
injunction, to enforce such Partner's rights hereunder. Except as otherwise
provided herein, each right, power, and remedy provided for herein or now or
hereafter existing at law or in equity, by statute or otherwise, shall be
cumulative and concurrent and shall be in addition to every other right, power,
or remedy provided for herein or now or hereafter existing at law or in equity,
by statute or otherwise, and the exercise, the commencement of the exercise, or
the forbearance of the exercise by any party of any one or more of such rights,
powers, or remedies shall not preclude the simultaneous or later exercise by
such party of any or all of such other rights, powers, or remedies.
11.13 Acquisition of Ownership Interests by SMI. As of the effective date
hereof, SMI and the Affiliates, agents, employees and other representatives of
SMI hereby represent that SMI and such Affiliates, agents, employees and other
representatives do not own any ownership interests in any entity that is an
Affiliate, agent, employee or other representative of Geddes other than the
Partnership and have not entered into any agreements with Geddes and/or any
such Affiliates or other representatives of Geddes other than this Agreement
and the Letter Agreement. Notwithstanding any other provisions of this
Agreement, Geddes and SMI hereby agree that neither of such Partners, without
the prior written consent of IMA Corp., which may be withheld in the sole
discretion of IMA Corp., will (i) acquire any ownership interest in any
Affiliate, agent, employee or other representative of the other of such
Partners, (ii) amend or otherwise modify the provisions of the June 30
Agreement and/or the July 16 Amendment, and/or (iii) enter into, amend or
otherwise modify any other agreement with the other of such Partners, or any
Affiliate, agent, employee or other representative of the other of such
Partners.
- 38 -
ARTICLE XII
MISCELLANEOUS
12.01 The term "A&J" means Audrey & Jane, Inc., a California corporation.
12.02 The term "Affiliate" means any person or entity which, directly or
indirectly through one or more intermediaries, controls or is controlled by or
is under common control with another person or entity. The term "control" as
used herein (including the terms "controlling," "controlled by," and "under
common control with") means the possession, direct or indirect, of the power to
(i) vote ten percent (10%) or more of the outstanding voting securities of such
person or entity, or (ii) otherwise direct management policies of such person
by contract or otherwise.
12.03 The term "Accountant's Notice" is defined in Section 3.03(d).
12.04 The term "Agreement" means this Second Amended and Completely
Restated Agreement of General Partnership of Irvine Meadows Amphitheater.
12.05 The term "Appraised Value" is defined in Section 3.03(c).
12.06 The term "Arbitrator" is defined in Article IX(a).
12.07 The term "Avalon Attractions" means New Avalon Inc., a California
corporation, d/b/a Avalon Attractions.
12.08 The term "Azoff" means Irving Azoff, an individual.
12.09 The term "Booking and Management Fees" is defined in Section 2.09.
12.10 The term "Capital Account" means, in respect to each Partner, the
aggregate amount of money contributed (or deemed contributed) by such Partner
to the capital of the Partnership, "increased" by the aggregate fair market
value (as mutually determined by the contributing Partner and the Partnership)
of all property contributed (or deemed contributed) by such Partner to the
capital of the Partnership (net of liabilities secured by such contributed
property that the Partnership is considered to assume or take subject to under
Section 752 of the Code), the aggregate amount of all Net Profits allocated to
such Partner, of any Gross Income allocated to such Partner pursuant to Section
5.05, and Partnership income or gain specially allocated to such Partner
pursuant to Section 5.06, and decreased by the aggregate amount of money
distributed (or deemed distributed) to such Partner by the Partnership
(exclusive of any guaranteed payment within the meaning of Section 707(c) of
the Code paid to such Partner) , the aggregate f air market value (as mutually
determined by the distributee Partner and the Partnership) of all property
distributed (or deemed distributed) to such Partner by the Partnership (net of
liabilities secured by such distributed property that such Partner is
considered to assume
- 39 -
or take subject to under Section 752 of the Code), the aggregate amount of all
Net Losses charged to such Partner, and the aggregate amount of all
"nonrecourse deductions" specially allocated to such Partner pursuant to
Section 5.06. For purposes of Section 5.06 only, each Partner's Capital Account
shall be further adjusted in the manner set forth in the second and third
sentences of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be
increased for (i) such Partner's allocable share of minimum gain (as determined
pursuant to Treasury Regulation Section 1.704-1T(b)(4)(iv)(f)) and (ii) the
amount such Partner is unconditionally obligated to contribute to the capital
of the Partnership pursuant to this Agreement. The foregoing Capital Account
definition and the other provisions of this Agreement relating to the
maintenance of Capital Accounts are intended to comply with Treasury Regulation
Sections 1.704-1(b) and 1.704-IT(b) and shall be interpreted and applied in a
manner consistent with such Regulations.
12.11 The term "Cash Deficit Contribution" is defined in Section 4.05.
12.12 The term "Cash Flow" means the excess, if any, of all cash receipts
of the Partnership as of any applicable determination date in excess of the sum
of (i) any and all cash disbursements (exclusive of distributions to the
Partners in their capacities as such and distributions applied to reduce the
outstanding balance of the Security Pacific Loan pursuant to Section 6.01(b),
but inclusive of any payments treated hereunder as guaranteed payments under
Section 707(c) of the Code) of the Partnership prior to that date and (ii) any
commercially reasonable reserve established in the reasonable discretion of the
Management Committee for anticipated cash disbursements that will have to be
made before additional cash receipts from third parties will provide the funds
therefore. Cash Flow shall be determined annually by the Management Committee
and shall be distributed annually or at such other times as the Management
Committee determines that funds are available therefore.
12.13 The term "Code" means the Internal Revenue Code of 1986, as
heretofore and hereafter amended from time to time (and/or any corresponding
provisions of any succeeding law).
12.14 The term "Contributing Partners" is defined in Section 4.06.
12.15 The term "Contribution-Date" is defined in Section 4.05.
12.16 The term "Delinquent Contribution" is defined in Section 4.06.
12.17 The term "Demand" is defined in Article XI(a).
12.18 The term "Disproportionate Allocation" is defined in Section 5.05.
12.19 The term "Election Notice" is defined in Section 3.03.
12.20 The term "Extraordinary Event" means the sale, disposition,
exchange, or other transfer, condemnation or acquisition by an entity with the
power of eminent domain in lieu of formal condemnation proceedings, damage or
destruction, of all or any portion of the Project,
- 40 -
including, without limitation, any possession rights related to the Project,
and/or any other property of the Partnership (other than the incidental sales
or exchanges of tangible personal property and fixtures).
12.21 The term "Geddes" means Robert E. Geddes, an individual.
12.22 The term "Cross Income" shall mean with respect to any Extraordinary
Event, an amount equal to the Partnership's gross income, gain and items
thereof as determined for federal income tax purposes for such Extraordinary
Event, except that gain or loss resulting from any disposition of Partnership
property with respect to which gain or loss is recognized for tax purposes
shall be computed by referenced to the book value of such property used for the
purposes of determining Net Profits and Net Losses in accordance with the
provisions of this Agreement and for the purposes of maintaining the Partners'
Capital Accounts in accordance with Treasury Regulation Section 1.704-1(b),
rather than by reference to such property's adjusted tax basis.
12.23 The term "Hegness" means Paul C. Hegness, an individual.
12.24 The term "Hegness Offered Interest" is defined in Section 7.04.
12.25 The term "Hegness Offering Notice" is defined in Section 7.04.
12.26 The term "IMA Corp."means IMA Investment Corp., a California
corporation.
12.27 The term "IMA Corp. Offered Interest" Section 7.02.
12.28 The term "IMA Corp. Offering Notice" is defined in Section 7.02.
12.29 The term "July 16 Amendment" is def defined in Recital A.
12.30 The term "June 27 Agreement" is defined in Recital A.
12.31 The term "June 30 Agreement" is defined in Section 11.13.
12.32 The term "Just Cause" shall mean the willful misconduct or
negligence, or the habitual neglect of the duties, of Avalon Attractions in its
capacity as the booking agent for the Project.
12.33 The term "Koll" means Donald M. Koll, an individual.
12.34 The term "Koll Partners" means IMA Corp. and Hegness.
12.35 The term "Lease" is defined in Section 1.05.
12.36 The term "Letter Agreement" is defined in Recital A.
- 41 -
12.37 The term "Liquidation" means, (i) in respect to the Partnership, the
earlier of the date upon which the Partnership is terminated under Section
708(b)(1) of the Code or the date upon which the Partnership ceases to be a
going concern (even though it may continue in existence for the purpose of
winding up its affairs, paying its debts, and distributing any remaining
balance to its Partners), and (ii) in respect to a Partner wherein the
Partnership is not in Liquidation, means the liquidation of a Partner's
Partnership Interest under Treasury Regulation Section 1.761-1(d).
12.38 The term "Liquidator" means the Management Committee; provided that
if none of the members of the Management Committee is a partner in the
Partnership at the time of the liquidation thereof and a trustee is appointed,
then such trustee.
12.39 The term. "Majority-in-Interest" means with respect to any relevant
group of Partners, greater than fifty percent (50%) of such Partners in terms
of Percentage Interests; provided, however, for purposes of the foregoing
calculation, the Percentage Interest of IMA Corp. shall be deemed to include
the Percentage Interest of Hegness until such time as IMA Corp. is no longer
permitted to vote and make other decisions on behalf of Hegness as determined
in accordance with the provisions of Section 2.07.
12.40 The term "Management Committee" is defined in Section 2.01(a).
12.41 The term "Minimum Percentage Interest" is defined in Section
4.06(d).
12.42 The terms "Net Profit" and "Net Losses" mean, for each fiscal year
or other period, an amount equal to the Partnership's taxable income or loss,
as the case may be, for such year or period, determined in accordance with
Section 703(a) of the Code (for this purpose, all items of income, gain, loss
and deduction required to be stated separately pursuant to Section 703(a)(1) of
the Code shall be included in taxable income or loss); provided, however, for
purposes of computing such taxable income or loss, (i) such taxable income or
loss shall be adjusted by any and all adjustments required to be made in order
to maintain Capital Account balances in compliance with Treasury Regulation
Sections 1.704-1(b) and 1.704-IT(b); (ii) any Gross Income (or items thereof)
specially allocated in accordance with the provisions of Section 5.05 shall
only be taken into account in determining Net Profits or Net Losses in the
manner set forth in such Section; and (iii) any and all "nonrecourse
deductions" and/or items of Partnership income and gain specially allocated to
any Partner pursuant to Section 5.06 shall not be taken into account in
computing such taxable income or loss. Such adjustments shall also include,
without limitation, the computation, in accordance with the Code, of (i)
deductions for depreciation, cost recovery, and amortization attributable to,
and/or (ii) any gain or loss attributable to the taxable disposition of, any
Partnership property by reference to the book value of such property (as
determined for purposes of the maintenance of Capital Accounts in accordance
with this Agreement and Treasury Regulation Section 1.704-1(b)(2)(iv)(q)), as
such book value may from time to time be adjusted to equal such property's fair
market value (as reasonably determined by the Management Committee).
12.43 The term "Non-Assigning Partners" is defined in Section 7.04.
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12.44 The term "Non-Contributing Partner" is defined in Section 4.06.
12.45 The term rm "Non-Selling Partner" is defined in Section 7.03.
12.46 The term "Non-Transferring Partners" is defined in Section 7.02.
12.47 The terms "Operating Partner" and "Operating Partners" are defined
in Section 2.02.
12.48 The term "Operating Budget" is defined in Section 2.05.
12.49 The term "Options Agreement" is defined in Section 1.05.
12.50 The term "Original Partnership Agreement" is defined in Recital A.
12.51 The term "Partners" means IMA Corp., Hegness, SMI and A&J,
collectively the term "Partner" means any one of the Partners.
12.52 The term "Partner Loan" is defined in Section 4.06(a).
12.53 The term "Partnership" means the partnership continued pursuant to
this Agreement.
12.54 The term "Partnership Interest" means, in respect to each Partner,
all of such Partner's right, title, and interest in and to the Net Profits, Net
Losses, Cash Flow, and capital of the Partnership, and any other interest
therein.
12.55 The term "Percentage Interest" means forty-five percent (45%) with
respect to IMA Corp., five percent (5%) with respect to Hegness; twenty-five
percent (25%) with respect to SMI, and twenty-five percent (25%) with respect
to A&J; subject, however, to appropriate adjustment in the event of any
dilution pursuant to Section 4.06(b), in the event of any transfer pursuant to
Articles III and/or VII, or as may be otherwise provided in this Agreement.
12.56 The term "Permitted Transferees" is defined in Section 7.05.
12.57 The term "Project" is defined in Section 1.05.
12.58 The term "Property" is defined in Section 1.05.
12.59 The term "Proportionate Share" means a fraction, the numerator of
which is the Koll Partners' Percentage Interests and the denominator of which
is the sum of the Koll Partners' Percentage Interests and the Selling Partner's
Percentage Interest. For purposes of determining the foregoing fraction, any
such Percentage Interests shall be determined as of the effective date of any
applicable S/G Offering Notice.
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12.60 The term "Purchase Price" is defined in Section 3.03(d).
12.61 The term "Purchasing Partner(s)" is defined in Section 3.03.
12.62 The term "S/G Offered Interest" is defined in Section 7.03.
12.63 The term "SIG Offering Notice" is defined in Section 7.03.
12.64 The term "SMI" means Shelli Meadows, Inc., a California corporation.
12.65 The term "Security Pacific Loan" is defined in Section 4.04.
12.66 The term "Selling Partner" is defined in Section 7.03.
12.67 The term "Service" is defined in Article IX.
12.68 The term "The Irvine Company" means The Irvine Company, a Michigan
corporation.
12.69 The term "Treasury Regulation" means any proposed temporary and/or
final federal income tax regulation promulgated by the United States Department
of the Treasury as heretofore and hereafter amended from time to time (and/or
any corresponding provisions of any succeeding law and/or regulation).
12.70 The term "Unrecovered Additional Contribution Account" means, with
respect to each Partner, the aggregate amount of money contributed (or deemed
contributed) by such Partner to the capital of the Partnership pursuant to
Sections 4.05 and/or 4.06, and decreased by (i) the aggregate amount of any and
all Cash Flow distributed to such Partner pursuant to Section 6.01(c), and (ii)
the aggregate agreed upon fair market value of any and all property distributed
to such Partner (net of liabilities secured by such distributed property that
such Partner is considered to assume or take subject to under Section 752 of
the Code) pursuant to Section 6.01(c).
12.71 The term "Unrecovered Contribution Account" means, with respect to
each Partner, the amount credited to such Partner's Capital Account pursuant to
Section 4.03, and decreased by (i) the aggregate amount of any and all Cash
Flow distributed to such Partner pursuant to Sections 6.01(a), 6.01(c), 6.01(d)
and/or 6.01(e), as the case may be, and (ii) the aggregate agreed upon fair
market value of any and all property distributed to such Partner (net of
liabilities secured by such distributed property that such Partner is
considered to assume or take subject to under Section 752 of the Code) pursuant
to Sections 6.01(a), 6.01(c), 6.01(d) and/or 6.01(e), as the case may be.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands as of
the date first set forth above.
IMA INVESTMENT CORP.,
a California corporation
By: /s/ Donald M. Koll
---------------------------------
Donald M. Koll
Its: President
/s/ Paul C. Hegness
-------------------------------------
PAUL C. HEGNESS
SHELLI MEADOWS, INC., a California
corporation
By: /s/ Irving Azoff
---------------------------------
Irving Azoff
Its: President
AUDREY & JANE, INC., a California
corporation
By: /s/ Robert E. Geddes
---------------------------------
Robert E. Geddes
Its: President
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LEGAL DESCRIPTION OF THE PROPERTY
---------------------------------
A portion of Block 157 of the Irvine Subdivision per map filed In Book 1, Page
88 of Miscellaneous Record Maps of Orange County, California, also being a
portion of Parcel 2 of Parcel Map filed In Parcel Map Book 102, pages 30 and 31
of Parcel Maps of Orange County, being described as follows:
[deleted]
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SPOUSAL CONSENT
I acknowledge that I am the spouse of Paul C. Hegness, one of the partners
in Irvine Meadows Amphitheater, a California general partnership
("Partnership"), that I have read, approve of, and agree to the terms of the
Second Amended and Completely Restated Agreement of General Partnership of
Irvine Meadows Amphitheater entered into effective as of January 1, 1991
("Agreement"), to which this consent is attached, and know the contents
thereof, including, without limitation, the provision of the Agreement relating
to the contribution of property and/or money to the Partnership, management of
Partnership property, and the purchase, sale, or other disposition of
Partnership property and of the interest of any partner therein. I am aware
that, under the Agreement, my spouse has agreed to certain restrictions on my
spouse's ability to sell my spouse's interest in the Partnership as more fully
described in the Agreement. I hereby consent to each and every such provision
or restriction set forth in the Agreement and approve all of the provisions of
the Agreement. I hereby agree that any and all interest I may have in the
Partnership, by community property laws or otherwise, shall be governed by the
terms of the Agreement and this consent, and I hereby designate and appoint my
spouse, which appointment is coupled with an interest and hereby declared
irrevocable, as my true and lawful attorney-in-fact for all purposes of the
Agreement, including without limitation, to act for and bind me in all
Partnership matters and affairs.
DATED: As of April 1, 1991 /s/ Nancy H. Hegness
----------------------
NANCY H. HEGNESS
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CORP SECY
NAME DEPARTMENT COVERAGE
---- ---------- --------
Madeline Bermudez Administration
Irene Aspillera Corporate-Asia Desk
Devra Block Corporate-Securities
Christopher Roehrs Corporate-Securities
Anne Zagorin Litigation
Emerita Ruiz Recruiting
Anna Stoloff Accounting
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