EXHIBIT 10.1
LIMITED PARTNERSHIP AGREEMENT
OF
BUCK & BASS, L.P.
THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT HAVE BEEN
ACQUIRED FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS. WITHOUT SUCH
REGISTRATION, SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED
OF, EXCEPT UPON DELIVERY TO THE PARTNERSHIP OF ADVANCE NOTICE OF THE INTENDED
SALE, TRANSFER OR OTHER DISPOSITION AND AN OPINION OF COUNSEL SATISFACTORY TO
THE GENERAL PARTNER AND TO COUNSEL FOR THE PARTNERSHIP THAT REGISTRATION OF SUCH
SALE, TRANSFER OR OTHER DISPOSITION IS NOT REQUIRED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS OR ANY RULE OR REGULATION
PROMULGATED THEREUNDER.
THE LIMITED PARTNERSHIP INTERESTS REPRESENTED BY THIS INSTRUMENT ARE ALSO
SUBJECT TO RESTRICTIONS ON TRANSFERABILITY. NO SALE, TRANSFER OR OTHER
DISPOSITION OF LIMITED PARTNERSHIP INTERESTS WILL BE PERMITTED EXCEPT AS
EXPRESSLY SET FORTH IN THIS DOCUMENT. MOREOVER, CERTAIN PROPOSED SALES,
TRANSFERS OR OTHER DISPOSITIONS ARE SUBJECT TO A PURCHASE OPTION.
LIMITED PARTNERSHIP AGREEMENT
OF BUCK & BASS, L.P.
This LIMITED PARTNERSHIP AGREEMENT is entered into this 5th day of
November, 1998, by and among BBBP Management Company, a Michigan corporation,
as the General Partner (the "General Partner"), Bass Pro Outdoor World, L.P.,
a Missouri limited partnership, as a Limited Partner ("BPOW"), and Big Buck
Brewery & Steakhouse, Inc., a Michigan corporation, as a Limited Partner
("MBI").
Simultaneously with the execution of this Agreement: (a) BPOW is
contributing Ninety-nine Thousand Dollars ($99,000.00) in cash to the
Partnership in exchange for a Nine and nine-tenths (9.9) percentage
partnership interest (as a limited partner); (b) MBI is contributing Eight
Hundred Ninety-one Thousand Dollars ($891,000.00) in cash to the Partnership
in exchange for an Eighty-nine and one-tenth (89.1) percentage partnership
interest (as a limited partner); and (c) the General Partner is contributing
Ten Thousand Dollars ($10,000.00) in cash in exchange for a One (1)
percentage partnership interest (as a general partner).
NOW, THEREFORE, in consideration of the premises and the agreements
hereinafter set forth, the Partners wish to enter into this Partnership
Agreement and to incorporate completely the agreement of the Partners.
ARTICLE I
DEFINITIONS
In addition to the terms defined elsewhere in this Agreement, for purposes
of this Agreement, the following terms shall have the meaning ascribed to such
terms in this Article I.
1.1 ADDITIONAL MANDATORY DISTRIBUTION - With respect to BPOW, the
amount distributed to it under Section 5.3(b), not to exceed the then Maximum
Additional Mandatory Distribution Amount.
1.2 ADDITIONAL MANDATORY DISTRIBUTION AMOUNT - With respect to each
calendar year, an amount equal to (i) BPOW's allocable share of the Net Income
of the Partnership, reduced by (ii) the amount of Mandatory Distribution
distributed to BPOW pursuant to Section 5.3(a).
1.3 AFFILIATE - Any entity directly or indirectly controlled by,
controlling or under direct or indirect common control with such entity, or any
person related by blood or by marriage to the owners of any Partnership
Interest. Control for purposes of this Section 1.3 means the ability to direct
the actions of an Entity through the exercise of a majority voting power
(whether direct or indirect) or operating control over the day-to-day decisions
of such Entity.
1.4 AGREEMENT - This Limited Partnership Agreement and all amendments
hereto.
1.5 CAPITAL ACCOUNT - An account maintained for each Partner each of
which shall initially be credited with the amount of cash or the fair value of
other property contributed by such Partner.
1.6 CAPITAL CONTRIBUTION - With respect to any Partner, the amount of
money and the fair value of any property (other than money) contributed to the
Partnership as provided in this Agreement, including the Initial Capital
Contributions and the Additional Capital Contributions.
1.7 CASH AVAILABLE FOR DISTRIBUTION - At any given time, all sums of
Cash on hand from all sources not reserved as needed within the next fiscal year
in the ordinary course of business of the Partnership, calculated in accordance
with GAAP.
1.8 CODE - The Internal Revenue Code of 1986, as amended, or any
successor statute or statutes constituting the United States tax laws.
1.9 COMMERCIAL SUBLEASE AGREEMENT - That instrument entitled
"Commercial Sublease Agreement" between the Partnership, as Sublessee, and BPOW,
as Sublessor, of the Restaurant Property (the "CSA").
1.10 CONSENT OF THE LIMITED PARTNERS - The consent or affirmative vote
by the then holders of all of the Limited Partnership Interests.
1.11 DISSOLUTION EVENT - Any event affecting a General Partner which
would result in the dissolution of the Partnership under the Missouri Limited
Partnership Law.
1.12 ENTITY - Any individual, corporation, partnership, association,
trust or other entity or organization.
1.13 GAAP - Generally accepted accounting principles, consistently
applied.
1.14 GENERAL PARTNER - The general partner of the Partnership, initially
BBBP Management Company.
1.15 INCOME - For each fiscal year or other period, the total net income
of the Partnership which is taxable to its Partners, as determined by use of
GAAP, for such fiscal year or other period.
1.16 IN-KIND PROPERTY - Any investments of BPOW or its Affiliates in
Restaurant or the Restaurant Property to or for the direct benefit of the
Restaurant, including, without limitation, cost of building pad and related
items, walls, ceilings and parking improvements.
1.17 INSOLVENCY EVENT - With respect to any Partner (i) the inability of
such Partner generally to pay its debts as such debts become due, or an
admission in writing by such Partner of its inability to pay its debts
generally, or a general assignment by such Partner for the benefit of creditors,
(ii) the filing of any petition or answer by such Partner seeking to adjudicate
it bankrupt or insolvent, or seeking for itself any liquidation, winding-up,
reorganization, arrangement, adjustment, protection, relief or composition of
such Partner or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking, consenting to or acquiescing in
the entry of an order for relief or the appointment of a receiver, trustee,
custodian, or other similar official for such Partner or for any substantial
part of its property, or (iii) without the consent or acquiescence of such
Partner, the entering of an order for relief or approving a petition for relief
or reorganization or any other petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or other similar relief
under any present or future bankruptcy, insolvency, or similar statute, law, or
regulation, or (iv) the filing of any such petition against such Partner which
petition shall not be dismissed within sixty (60) days or, without the consent
or acquiescence of such Partner, the entering of an order appointing a trustee,
custodian, receiver, or liquidator of such Partner or of all or any substantial
part of the property of such Partner which order shall not be dismissed within
sixty (60) days.
1.18 LIMITED PARTNERS - BPOW and MBI and those Entities subsequently
admitted as a Limited Partner of the Partnership in accordance with the
provisions hereof.
1.19 MAXIMUM ADDITIONAL MANDATORY DISTRIBUTION AMOUNT - At any given
point in time, the aggregate of the Additional Mandatory Distribution Amount as
to the then completed fiscal years of the Partnership, reduced by the total
amount distributed to BPOW pursuant to Section 5.3(b).
1.20 MISSOURI LIMITED PARTNERSHIP LAW - The Revised Uniform Limited
Partnership Act as adopted in the State of Missouri.
1.21 PARTNERS - The General Partner and the Limited Partners.
1.22 PARTNERSHIP - Buck & Bass, L.P., a Missouri limited partnership
governed by the Agreement and the Missouri Limited Partnership Law.
1.23 PARTNERSHIP INTEREST - With respect to any Partner, the interest in
the Partnership held by such Partner, being a Limited Partnership Interest, in
the case of a Limited Partner, and a General Partnership Interest in the case of
a General Partner.
1.24 PREFERRED DISTRIBUTION ACCOUNT - An account established for each
Partner other than BPOW, which account shall be increased by each Preferred
Distribution Amount determined pursuant to Section 1.23 allocable to such
Partner, and decreased by the amount of each distribution by the Partnership to
such Partner of a Preferred Distribution Amount.
1.25 PREFERRED DISTRIBUTION AMOUNT - With respect to each Partner other
than BPOW, the amount that would have been distributed to such Partner on each
occasion in which BPOW elects to receive an Additional Mandatory Distribution
had such Partner been entitled to make and did make the same (in terms of
percentage of Net Income) election to receive an Additional Mandatory
Distribution, but without regard to the limitation of the then Cash Available
for Distribution.
1.26 PROPERTY - That property shown on the balance sheet of the
Partnership.
1.27 RESTAURANT PROPERTY - That real property identified on EXHIBIT A
labeled "Restaurant Property".
1.28 SHAREHOLDERS' AGREEMENT. That agreement between BPOW and MBI
concerning activities of the shareholders of the General Partner.
1.29 TRANSFER - The voluntary or involuntary transfer of securities or
other property in any manner whatsoever (including, but not by way of
limitation, any assignment, sale, pledge, hypothecation, disposal, gift,
transfer by any legal process, including those resulting from a merger,
consolidation, statutory share exchange, insolvency, bankruptcy, or any other
transfer) to any Entity.
ARTICLE II
ORGANIZATION, OFFICE, TERM, LIMITATION ON LIABILITY,
LIMITED PARTNER POWERS AND REGISTERED AGENT
2.1 ORGANIZATION OF THE PARTNERSHIP. The Partnership is organized as a
limited partnership under the Missouri Limited Partnership Law, and the parties
desire that the Partnership continue to qualify as a limited partnership.
Promptly after the execution of this Agreement and as otherwise required
thereafter, the General Partner, on behalf of the Partnership and each of the
Limited Partners, shall execute and file a certificate of limited partnership
and all necessary or appropriate conforming certificates and documents and
perform such other filing, recording, publishing and other acts as are necessary
or appropriate to comply with all requirements for the formation and operation
of a limited partnership in the State of Missouri and all other jurisdictions
where the Partnership desires to conduct its business. The General Partner
shall cause the Partnership to comply with all requirements for the
qualification of the Partnership as a limited partnership in any jurisdiction in
which it conducts business before the Partnership conducts business in the
jurisdiction.
2.2 NAME AND PRINCIPAL OFFICE. The name of the Partnership is "Buck &
Bass, L.P." or such other name or names as the General Partner with the Consent
of the Limited Partners shall determine; provided, however, that the name of the
Partnership shall not include the name of any holder of a limited partnership
interest. The principal office of the Partnership shall be located at 1340 East
Woodhurst, Springfield, Missouri 65804, or such other place as the General
Partner determines. The General Partner shall give the Limited Partners at
least fourteen (14) days prior written notice of any change in the principal
office of the Partnership.
2.3 TERM. The existence of the Partnership shall continue until
December 31, 2048, unless terminated earlier pursuant to this Agreement.
2.4 PURPOSES. The purposes of the Partnership shall be:
(a) To: (i) acquire (directly or indirectly) the Capital
Contributions from the Partners; (ii) construct, equip and furnish a brewery and
restaurant to be constructed and operated on the Restaurant Property (the
"Restaurant"); and (iii) operate and manage the Partnership assets and other
property in the conduct of the business of the Restaurant.
(b) Subject to Section 3.4 below, and incident to the purposes
set forth in Section 2.4(a), to conduct such other activities, including,
without limitation, and any other activity as may be necessary or appropriate to
promote the purposes set forth in clause (a) above.
2.5 TITLE TO PARTNERSHIP ASSETS. Title to the Property of the
Partnership will be held in the name of the Partnership.
2.6 ADMISSION OF LIMITED PARTNERS. The Partnership hereby admits BPOW
and MBI to the Partnership as Limited Partners having the percentage interest in
the Partnership as specified in Section 3.2.
2.7 LIMITED PARTNERS.
(a) LIMITATION ON LIMITED PARTNERS' LIABILITIES. Except as
otherwise specifically provided in this Agreement or as provided in the CSA, no
Limited Partner shall be bound by or be personally liable for the expenses,
liabilities or obligations of the Partnership, the General Partner or any other
Limited Partner, and the liability of each Limited Partner shall be limited
solely to their respective Capital Contribution.
(b) NO CONTROL OF BUSINESS OR RIGHT TO ACT FOR PARTNERSHIP -
POWERS OF LIMITED PARTNERS. The Limited Partners, in their capacity as limited
partners, shall not participate in the control of the business of the
Partnership, or have any right or authority to act on behalf of the Partnership
or to sign for or bind the Partnership. The Limited Partners shall not have the
right to vote on any matters except to the extent expressly set forth herein or
with respect to any matter upon which the vote of the Limited Partners is
required by the Missouri Limited Partnership Law or other applicable law.
(c) NO PRIORITY. Except as otherwise provided herein, (i) no
Limited Partner shall be entitled to any distribution or to withdraw from the
Partnership or to demand the return of any Capital Contribution to the
Partnership, (ii) no Limited Partner shall have the right to demand or receive
Property other than cash as a distribution of income or capital, and (iii) no
Limited Partner shall have priority over any other Limited Partner either as to
the return of any Capital Contribution or as to distributions.
2.8 REGISTERED AGENT AND REGISTERED OFFICE. The initial registered
agent for the Partnership is Joe C. Greene, whose place of business, located at
1340 East Woodhurst, Springfield, Missouri 65804, shall be the registered office
of the Partnership. The General Partner shall give the Limited Partners at
least fourteen (14) days prior written notice of any change in the registered
agent of the Partnership.
ARTICLE III
CAPITAL CONTRIBUTIONS
3.1 GENERAL PARTNER CONTRIBUTIONS. The General Partner has contributed
the sum of Ten Thousand Dollars ($10,000) to the Partnership in exchange for the
entire General Partnership Interest in the Partnership. Such General
Partnership Interest shall initially constitute one percent (1%) of the total
Partnership Interests in the Partnership for purposes of allocations of profits,
gains and losses of the Partnership.
3.2 LIMITED PARTNER CONTRIBUTIONS.
(a) No later than fifteen (15) calendar days after the execution of
this Agreement, MBI will contribute to the Partnership cash in the amount of
Eight Hundred Ninety-one Thousand Dollars ($891,000) and BPOW will contribute
In-Kind Property having a fair value of Ninety-nine Thousand Dollars
($99,000.00) (each such contribution being herein called an "Initial Capital
Contribution").
(b) BPOW and MBI each agree to make additional capital
contributions to the Partnership as provided in Section 3.3 below (the
"Additional Capital Contributions"). The Initial Capital Contributions and the
Additional Capital Contributions are collectively called the "Capital
Contributions".
3.3 ADDITIONAL CAPITAL CONTRIBUTIONS.
(a) Within ten (10) business days of written request of the
General Partner for contribution (accompanied by a sworn statement of a senior
officer of the General Partner and accompanied by all related documents of
substantiation) certifying that such charges have been incurred and are then due
in respect of the construction, furnishing, equipping, supplying, purchase of
inventory or pre-opening expenses of the Restaurant, the Limited Partners shall
contribute proportionately to the capital of the Partnership, in cash (except as
permitted by Section 3.3(b)), all amounts necessary to permit the Partnership to
satisfy such charges in respect of the Restaurant (the "Additional Capital
Contribution"). Any Additional Capital Contribution shall be made
simultaneously with the Additional Capital Contributions of other Partners.
Capital Contributions under this section shall be made in proportion to the
limited partnership interests of Ten percent (10%) by BPOW and Ninety percent
(90%) by MBI. The General Partner shall not be required to make any portion of
such Additional Capital Contribution, all of which shall be made by the Limited
Partners in the proportions specified in this Section 3.3(a). The Initial
Capital Contribution shall be used prior to any request of the Limited Partners
to make Additional Capital Contributions under this section. In no event shall
any Limited Partner be required to make Additional Capital Contributions greater
than its proportionate part of Six Million Dollars ($6,000,000), less its
Initial Capital Contributions.
(b) In lieu of the Additional Capital Contribution in cash being
made, BPOW may, at its option, contribute all or a portion of the Additional
Capital Contribution in the form of In-Kind Property. The value of the
capital contributions in the form of In-Kind Property shall be the fair
market value on the day of contribution. The actual cost of BPOW plus Six
per cent (6%) per annum for such In-Kind Property is presumed to be the fair
market value thereof. The capital contribution of In-Kind Property by BPOW
shall be accompanied by a sworn statement of a senior officer of BPOW
acknowledging and warranting that BPOW has incurred the costs for the In-Kind
Property, accompanied by copies of invoices and related documents of
substantiation. BPOW shall permit the Partnership and all Partners to
inspect the books of BPOW for the sole purpose of verifying the facts
necessary to establish that BPOW has, in fact, made the capital contribution
of In-Kind Property.
(c) If, as a result of Initial Capital Contributions and
Additional Capital Contributions by BPOW (whether in cash and/or by In-Kind
Property), the amount it shall have contributed shall be in excess of Ten
percent (10%) of the total amount contributed to the capital account by all
Partners (the "Excess Capital Contribution"), then, in that event, BPOW shall be
granted such additional Partnership Interest as will fairly and fully reflect
the relative contribution of capital to the Partnership as follows: The
Partnership Interest of each Limited Partner will be determined by multiplying
the amount and value (in case of In-Kind Property) of such Limited Partner's
Capital Contribution (as defined in 3.2(b)) by a fraction, expressed as a
percentage (rounded to the nearest one-tenth of one percent), the numerator of
which is the total value of the Capital Contributions by each of the Partners,
reduced by Ten Thousand Dollars ($10,000.00) (representing the Initial Capital
Contribution of the General Partner). In no event shall the Partnership
Interest of the General Partner be diluted to less than One percent (1%). To
the extent the above calculation would dilute the General Partner Partnership
Interest below One percent (1%) Partnership Interest, then the percentage
necessary to maintain the One percent (1%) Partnership Interest in the General
Partner shall be proportionately taken from the Limited Partners to the credit
of the General Partner to bring the Partnership Interest of the General Partner
to One percent (1%). As a result of the various
Capital Contributions, in no event shall the Partnership Interest of MBI be
reduced below Fifty-one percent (51%) and any capital contribution by BPOW
which would result in the Fifty-one percent (51%) limitation being exceeded
will be returned to BPOW.
(d) Notwithstanding the provisions of Section 3.3(c), if BPOW
makes an Excess Capital Contribution (in cash or by In-Kind Property
contribution), BPOW may elect to waive in writing the option to receive the
additional Partnership Interest under Section 3.3(c) above, in which event the
Excess Capital Contribution shall be reimbursed to BPOW by the Partnership in
cash on demand.
3.4 PROHIBITION AGAINST BORROWING. Except as provided in this Section
3.4 or upon written Consent of the Limited Partners, (i) the Partnership shall
not borrow any money for the construction, equipping and operating of the
Restaurant and shall use only Initial Capital Contributions and Additional
Capital Contributions for those purposes, and (ii) the Partnership shall not
mortgage, pledge, assign, grant a security interest or otherwise in any way
create a lien on or encumber the assets of the Restaurant on the property except
as otherwise specifically provided in this Agreement.
(a) FF&E BORROWING. Notwithstanding the prohibition set forth
above in this Section 3.4, the Partnership may borrow up to One Million Five
Hundred Thousand Dollars ($1,500,000.00) for the sole purpose of acquiring for
the opening of the Restaurant and for use in the Restaurant, furniture, fixtures
and equipment (the "FF&E"). The Partnership may grant to the lender a security
interest in the FF&E to secure such loan(s).
3.5 CONTRIBUTION OBLIGATIONS. Except as provided in Sections 3.2 and
3.3 above, no Limited Partner, as a limited partner of the Partnership, shall be
required to contribute any capital to the Partnership other than the Capital
Contributions, except that if a Limited Partner has received the return of the
whole or part of such Limited Partner's Capital Contribution, the Limited
Partner will remain liable to the Partnership, to the extent provided under the
Missouri Limited Partnership Law, for any sums (not in excess of the Capital
Contribution so returned) necessary to discharge the Partnership's liabilities
to all creditors who extended credit or whose claims arose before such return.
3.6 NO THIRD PARTY BENEFICIARIES. The contribution obligation of the
Partners under this Article III is not intended to create any obligation to
third party beneficiaries. No creditor may rely on that obligation unless the
Partner against whom the obligation is asserted has expressly agreed in writing
that the creditor may so rely on the contribution obligation.
ARTICLE IV
ALLOCATIONS OF PROFITS, GAINS AND LOSSES
AND DISTRIBUTIONS
4.1 LOSSES. The Partnership will allocate its losses among the
Partners in accordance with their respective Partnership equity ownership
percentages.
4.2 PROFITS. The Partnership will allocate its profits among the
Partners in accordance with their respective Partnership equity ownership
percentages. This allocation may not be the same as the allocation to the
respective percentages of ownership of equity in the Partnership as is provided
in Sections 5.5 and 5.6. No distribution of property other than Cash Available
for Distribution shall be permitted except on written Consent of the Limited
Partners.
ARTICLE V
RIGHTS, POWERS AND DUTIES OF GENERAL PARTNER
Subject to the powers of the Limited Partners as required by law, the
following provisions shall govern the General Partner's management of the
Partnership's business:
5.1 MANAGEMENT OF PARTNERSHIP BUSINESS. The General Partner shall be
solely responsible for the management of the Partnership's business with all
rights and powers generally conferred by law or necessary, advisable or
consistent to the accomplishment of the purposes of the Partnership or as
otherwise determined by the General Partner, in its judgment, to be in the best
interests of the Partnership. All decisions regarding management of the
Partnership shall be made by the General Partner. The General Partner is
expressly authorized and directed to execute and deliver, on behalf of the
Partnership, with BPOW a sublease of the Property for use as the Restaurant.
MBI agrees to not conduct any material dealings with the Partnership except on
terms no less favorable to the Partnership than to an entity comparable to the
Partnership and then only having given written notice of such dealings to all
Limited Partners.
5.2 RIGHTS AND POWERS OF THE GENERAL PARTNER. Subject to Section 3.4,
in addition to the rights and powers possessed by general partners under law,
the General Partner shall have all specific rights and powers required for or
appropriate, in its judgment, to the management of the Partnership's business.
Such rights and powers shall include, by way of illustration but not by way of
limitation, the following rights and powers in furtherance of the business of
the Partnership:
(a) To employ the services of agents, attorneys, brokers,
managing agents, architects, contractors, subcontractors, accountants and others
to construct, equip, furnish and operate a Restaurant on the Property;
(b) To pay, collect, compromise, arbitrate, resort to or defend
legal action with respect to, or otherwise adjust, claims or demands of or
against the Partnership;
(c) To consent to the modification, renewal or extension of any
obligation of any Entity to the Partnership or any agreement to which the
Partnership is a party or of which it is a beneficiary or by which it is bound;
(d) To execute, acknowledge and deliver any and all instruments
necessary to the foregoing.
Each power specified above shall be exercised in good faith, to the extent
and in the manner consistent with and necessary for the proper management of the
business of the Partnership, in the best judgment of the General Partner.
5.3 MANDATORY DISTRIBUTIONS.
(a) To the extent of Cash Available for Distribution, the General
Partner shall distribute to the Partners, annually in respect of each calendar
year, Cash in the aggregate amount equal to at least forty-two percent (42%) of
the Net Income of the Partnership for the calendar year in question, ("Mandatory
Distribution") which Mandatory Distribution of Cash shall occur on an estimated
basis by March 15 of the ensuing calendar year, with a final adjustment
occurring by May 15 of such calendar year ("Final Distribution Date"). Such
Mandatory Distributions shall be in cash and be allocated among the Partners in
proportion to the Net Income allocable to each Partner during the period for
which distribution is earned.
(b) In addition to the Mandatory Distribution provided for in
Section 5.3(a), any Limited Partner may, at its option, by giving written notice
thereof to the General Partner, require the Partnership to distribute to each of
the Limited Partners an Additional Mandatory Distribution of up to 100% of the
Maximum
Additional Mandatory Distribution Amount then available, which amount shall
be distributed to the Limited Partner to the extent of the then Cash
Available for Distribution. Nothing contained in the Section 5.3(b) shall be
construed to limit the General Partner's power and authority to make
proportionate distributions to all Limited Partners.
5.4 LIABILITY OF THE GENERAL PARTNER TO LIMITED PARTNERS AND
PARTNERSHIP; INDEMNIFICATION.
(a) The General Partner shall devote full time and attention to
the Partnership necessary to manage the affairs of the Partnership to its best
advantage and shall conduct no other business. The doing of any act or omission
to do any act by the General Partner (and its officers, directors and employees)
which may cause or result in loss or damage to the Partnership, if done in good
faith and reasonably believed by the General Partner to be within the scope of
authority conferred by this Agreement, shall not subject the General Partner to
any liability to the Partnership or to the Limited Partners. The Partnership
will indemnify and hold the General Partner (and its officers, directors and
employees) harmless from any claim, loss, expense, liability, action or damage
to it resulting from any such act or omission in the conduct of the business of
the Partnership in good faith and if reasonably believed by the General Partner
at the time of commission or omission to be within the scope of the authority
conferred by this Agreement, including, without limitation, reasonable costs and
expenses of litigation and appeal (including reasonable fees and expenses of
attorneys engaged by the General Partner in the defense or prosecution of any
action relating to such act or omission); but the General Partner (and its
officers, directors and employees) shall not be entitled to be indemnified or
held harmless from any claim, loss, expense, liability, action or damage due to
or arising from the fraud, bad faith or gross negligence of the General Partner
(or any of its officers, directors and employees).
(b) In addition to its obligations set forth in the immediately
preceding paragraph, the Partnership will indemnify and hold the Limited
Partners (and their respective officers, directors and employees) harmless
against and in respect of any and all damages, losses, deficiencies,
liabilities, costs and expenses (including, without limitation, reasonable
attorneys' fees) incurred or suffered by a Limited Partner resulting from,
relating to or arising out of: (i) the operation by the Partnership of the
business of the Partnership; (ii) any and all actions, suits, claims, or legal,
administrative, arbitration, governmental or other proceedings or investigations
against a Limited Partner or any director, officer, employee, of a Limited
Partner, that relate to the business of the Partnership, and (iii) any and all
actions, suits, claims, proceedings, investigations, demands, assessments,
audits, fines, judgments, costs and other expenses (including, without
limitation, reasonable legal fees and expenses) incident to any of the foregoing
or to the enforcement of the Partnership's obligation to indemnify the Limited
Partners set forth in this Section 5.4(b) unless, in any such event, such
Limited Partner shall be obligated to indemnify the Partnership or any of the
other Partners. The obligation of the Partnership to indemnify a Limited
Partner hereunder is limited to such party in its capacity as a Limited Partner.
5.5 TAX ALLOCATIONS: CODE SECTION 704. In accordance with Code
Section 704(c) and the Internal Revenue regulations thereunder (the
"Regulations"), income, gain, loss and deduction with respect to any property
contributed to the capital of the Partnership shall, solely for tax purposes, be
allocated among the General Partner and Limited Partners so as to take account
of any variation between the adjusted basis of such property to the Partnership
for federal income tax purposes and its fair market value at the time of
contribution.
Any elections or other decisions relating to such allocations shall be made
by the General Partner in any manner that reasonably reflects the purpose and
intention of this Agreement. Allocations pursuant to this Section 5.5 are
solely for purposes of federal, state and local taxes and shall not affect, or
in any way be taken into account in computing, any Partner's capital account or
share of profits, losses, other items or distributions pursuant to any provision
of this Agreement.
5.6 OTHER ALLOCATION RULES.
(a) For purposes of determining the profits and losses allocable
to any period, profits and losses shall be determined on a daily prorata basis.
(b) Generally, all profits and losses allocated to the Partners
shall be allocated, and all distributions of cash available for distribution
shall be allocated, among the Partners in accordance with their respective
proportionate shares of ownership of the equity of the Partnership.
(c) The Partners are aware of the income tax consequences of the
allocations made by this Article V and hereby agree to be bound by the
provisions of this Article V in reporting their shares of Partnership income and
loss for income tax purposes.
5.7 CASH AVAILABLE FOR DISTRIBUTION. Except as otherwise provided
hereunder, Cash Available for Distribution, if any, shall be distributed at such
times as the General Partner may reasonably determine first, to the Partners to
the extent of their Preferred Distribution Account, on a prorata basis, if more
than one (1) Partner, based upon the total Preferred Distribution Amount, and
then to the Partners in accordance with their respective proportionate share of
ownership of the equity of the Partnership.
ARTICLE VI
BOOKS, RECORDS AND REPORTS, ACCOUNTING,
TAX ELECTIONS, ETC.
6.1 BOOKS, RECORDS AND REPORTS.
(a) The General Partner shall keep proper and complete records
and books of account in which all transactions and other matters relative to the
Partnership's business are entered. The Partnership's books and records shall
be prepared in accordance with the accrual method of accounting utilizing
generally accepted accounting principles, consistently applied. The Partnership
shall also keep (i) a list or lists containing the full name and last known
mailing address of each current and past Partner, (ii) a copy of the then
effective Agreement and certificate of limited partnership and all amendments
thereto and restatements thereof, together with executed copies of any powers of
attorney pursuant to which any certificate has been executed, (iii) copies of
the Partnership's Federal, state and local income tax returns and reports, if
any, for all years with respect to which the period for assessment of a
deficiency has not expired, and (iv) copies of any financial statements of the
Partnership for the three most recent years. Such books and records shall be
maintained at the office of the Partnership and shall be open for inspection and
copying by the Partners or their duly authorized representatives for reasonable
Partnership purposes, including the evaluation of their investment in the
Partnership.
(b) The General Partner shall cause the Partnership to provide
to each Partner periodic financial statements showing the income and expenses
of the Partnership for the applicable periods and shall have the annual
financial statements audited by the Partnership's certified public
accountants. Periodic financial statements shall be furnished to each Partner
on the following schedule: (i) monthly within ten (10) days of each fiscal
month (unaudited), (ii) quarterly within forty-five (45) days of each fiscal
quarter (with year-to-date comparisons), and (iii) unaudited annual
statements within thirty (30) days of the close of the fiscal year of the
Partnership. The General Partner will cause the completed Form K-1 (or its
successor) along with full supporting financial statements and schedules to
be delivered to each Partner within ninety (90) days of the end of the fiscal
year. The General Partner shall cause the annual audit to be delivered to
all Partners on or before ninety (90) days following the end of the
applicable fiscal year. The Partnership shall also furnish to any Partner,
upon reasonable demand, (i) true and full information regarding the state of
the business and financial condition of the Partnership, and (ii) promptly
after becoming available, a copy of the Partnership's Federal, state and
local income tax returns for each year, together with a reconciliation of
Capital Account balances and changes thereto for each Partner. The audit
may be in the form of a separate segment of the annual audit of MBI so long
as the footnotes or other portions of such audit will separately show the
balance sheet, income statement, Partner's equity statement and cash flow
analysis of the Partnership.
6.2 BANK ACCOUNTS. The Partnership shall maintain its bank accounts in
such banking institutions as the General Partner determines, and withdrawals
shall be made only in the regular course of Partnership business on such
signature or signatures as the General Partner determines.
6.3 ACCOUNTANTS. The independent accountants for the Partnership will
be Arthur Andersen, L.L.P. unless changed by unanimous vote of the Board of
Directors of General Partner. Such independent accountants shall prepare the
Federal income tax returns of the Partnership, and prior to execution by the
General Partner, review all material state income tax returns of the Partnership
and shall audit and certify to all annual financial statements of the
Partnership in the manner described in Section 6.1(b) above.
6.4 TAX ELECTIONS.
(a) All elections required or permitted by the Partnership under
the Code shall be made by the General Partner in its sole and absolute
discretion.
(b) The General Partner will not be responsible for initiating
any change in accounting methods from the methods initially chosen except upon
written advice of Partnership accountants or attorneys. The General Partner
shall not incur any liability for any election made on the advice of the
Partnership's accountants or legal counsel.
(c) The General Partner and each Limited Partner agree that the
Partnership and each Partner have elected that the Partnership shall elect to be
treated as a partnership for state and federal income tax purposes. This
election to be so treated shall not be changed in the absence of written Consent
of the Limited Partners.
6.5 FISCAL YEAR. The fiscal year of the Partnership for accounting and
Federal income tax purposes shall be the 52/53 week fiscal year of MBI (the
"Fiscal Year").
6.6 TAX MATTERS PARTNER. The General Partner shall be the initial tax
matters partner (as defined in Section 6231 of the Code). The tax matters
partner shall inform the Limited Partners as to the commencement of any audit of
the Federal or any material state income tax return of the Partnership, and
shall keep the Limited Partners reasonably informed with respect to the salient
aspects of any such audit or of any controversy with tax authorities involving
the Partnership, and shall consult in good faith with the Limited Partners with
respect to any proposed settlement of a tax dispute which would or could
adversely affect any Partner.
The Tax Matters Partner shall not bind any other Partner to any settlement
of any such dispute without the consent of such Partner, which consent will not
be unreasonably withheld. The reasonable costs of the Partnership in
contesting any such tax disputes shall be borne by the Partnership. Counsel
retained by the Partnership with respect to any tax dispute shall be reasonably
acceptable to the Limited Partners.
ARTICLE VII
WITHDRAWAL OR REMOVAL AND ADMISSION OF PARTNERS
AND TRANSFER OF PARTNERSHIP INTERESTS
7.1 GENERAL PARTNER.
(a) The General Partner may not voluntarily withdraw or assign
all or any part of its interest in the Partnership without the Consent of the
Limited Partners.
(b) The General Partner may be removed (i) by any Limited
Partner if the General Partner violates its fiduciary responsibilities as a
General Partner of the Partnership or (ii) upon Consent of the Limited
Partners. Upon such removal a successor general partner (the "Successor
General Partner") shall be selected by Consent of the Limited Partners and
the Successor General Partner will become entitled to the removed General
Partner's interest in the Partnership upon the Successor General Partner's
payment to the removed General Partner of the fair market value of the
General Partner's interest in the Partnership as determined by Partnership
accountants.
7.2 ADMISSION OF ADDITIONAL LIMITED PARTNERS.
(a) The Partnership shall not issue and sell any additional
limited partnership interests in the Partnership except on written Consent of
the Limited Partners.
7.3 DEATH, INCOMPETENCE, DISSOLUTION OR WITHDRAWAL OF A LIMITED
PARTNER.
(a) Upon the death, legal incapacity, bankruptcy or insolvency
of any individual Limited Partner (including an assignee who becomes a Limited
Partner), such Limited Partner's legally authorized personal representative
shall have all of the rights of a Limited Partner for the purpose of
administering and protecting such Limited Partner's estate to the full extent
possessed by the incompetent, bankrupt or insolvent Limited Partner, provided,
however, that such personal representative, in such capacity, shall not be
deemed to be a substitute Limited Partner.
(b) Upon the bankruptcy, insolvency, dissolution or other
cessation to exist as an Entity of any Limited Partner which is not an
individual, the authorized representative of such Entity shall have all the
rights of a Limited Partner for the purpose of effecting the orderly winding up
and disposition of the business of such Limited Partner, provided, however, that
such authorized representative shall not be deemed to be a substitute Limited
Partner.
7.4 ASSIGNMENT OF INTEREST OF LIMITED PARTNER.
(a) RESTRICTION ON TRANSFERS. Other than by written Consent of
the Limited Partners or as otherwise permitted by this Agreement, no Limited
Partner may Transfer all or any portion of its Limited Partnership Interest.
Any Transfer of any Partnership Interest by MBI is subject to the right of first
refusal in favor of Bass Pro as set forth in Section 8.1.
(b) PERMITTED TRANSFERS. A Limited Partner may at any time
Transfer all or any portion of its Limited Partnership Interest to (i) any other
Partner or Affiliate of another Partner, (ii) any Affiliate of the transferor
other than an individual, (iii) an estate planning trust established by the
transferor which is exclusively for the benefit of Affiliates of such
transferor, and (iv) upon the death of an individual Limited Partner, any
beneficiary under the will of such individual Limited Partner who is an
Affiliate of such individual Limited Partner,
or if such Limited Partner dies intestate, any devisee taking under
applicable law of descent and distribution who is an Affiliate of such
individual. No Transfer shall relieve the transferor of any obligations
under this Agreement.
ARTICLE VIII
OPTIONS TO PURCHASE
8.1. OPTION RIGHTS OF BPOW. In the event of the occurrence of an
Insolvency Event or other material default under this Agreement by either MBI or
the General Partner or by the Partnership or Sublessee under the Sublease, which
default is not cured within twenty (20) calendar days after BPOW shall have
notified MBI, the General Partner and the Partnership of the default, BPOW shall
have the absolute, unconditional right to purchase all of the limited
partnership interest of MBI for a fair and reasonable purchase price which the
parties have agreed to in this Article VIII. Due to the "Special Circumstances"
(as defined below) and the difficulties of ascertaining value, the purchase
amount for such interests shall be Forty percent (40%) of the "Book Value" of
the interest of MBI and General Partner in the Partnership. "Book Value" means
the value of the General Partner and of the MBI capital account as shown on the
books of the Partnership for the calendar month immediately before the default.
Each share of stock of the General Partner shall be endorsed with a legend
reading as follows:
"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE
TERMS OF THAT CERTAIN SHAREHOLDERS' AGREEMENT DATED NOVEMBER 5, 1998 (A
COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE CORPORATION) WHICH
CONTAINS CERTAIN LIMITATIONS, RESTRICTIONS AND OBLIGATIONS WITH RESPECT TO
SUCH SHARES AND THE HOLDER THEREOF, INCLUDING, WITHOUT LIMITATION,
RESTRICTIONS UPON THE SALE OF THE SHARES REPRESENTED HEREBY."
The parties have agreed that the Restaurant to be operated by the Partnership is
an integral part of and complement to the Outdoor World store owned by BPOW
adjacent to the Restaurant and, therefore, the right of BPOW to so acquire the
interests of MBI as Limited Partner and as owner of the controlling interest in
the General Partner in the event of an uncured default is essential to the
success of the Restaurant and the adjacent Outdoor World store owned by BPOW in
the event of default by MBI and the General Partner. Failure of the Restaurant
would reflect poorly upon the adjacent store and would greatly damage the image,
goodwill and profit prospects of the Outdoor World store. These are the
"Special Circumstances" referred to above. The parties agree that if a court
should find that the purchase price is not appropriate, the parties wish to
preserve this option and right to purchase subject to the determination by the
court as to the appropriate purchase price.
8.2 RIGHT OF FIRST REFUSAL. In the event that MBI proposes to Transfer
any or all of its Partnership Interest to a third party, MBI shall give written
notice (the "Notice") to Bass Pro setting forth the complete and exact terms and
price of the proposal. During the thirty (30) calendar days immediately
following the receipt by Bass Pro of the Notice, Bass Pro shall have the right
to purchase the interest proposed to be transferred on the exact same terms and
price as set forth in the Notice by giving MBI written notice to that effect
(the "Acceptance") during that thirty (30) day period, whereupon MBI and Bass
Pro shall proceed to close the purchase and sale within fifteen (15) business
days of the giving of the Acceptance. If no timely Acceptance is given, the
Transfer may be completed to the third party (the "Third Party Transferee"), but
only upon the exact terms and price set forth in the Notice. The same right of
first refusal in favor of Bass Pro shall apply to Transfer of the Partnership
Interests in the hands of the Third Party Transferee. The Third Party
Transferee shall not be a partner except upon (i) its agreeing to the terms of
this Limited Partnership Agreement and (ii) Consent of the Limited Partners.
ARTICLE IX
BPOW RIGHT TO PURCHASE
9.1 RIGHTS TO PURCHASE. BPOW is granted the irrevocable right and
option to purchase up to Fifteen percent (15%) of the limited partnership
interest of MBI at a price equal to the actual cost of MBI for such interest
being sold. The actual cost of MBI shall be the sum of all Capital
Contributions of MBI less all distributions from the Partnership to MBI which
are not distributions of Income earned by the Partnership. This right and
option by BPOW shall be exercisable at any time from the date of opening of the
Restaurant on the Property until twenty-four (24) months following the opening
of the Restaurant on the Property. The option to purchase Fifteen percent (15%)
of the interest of MBI will be reduced to the extent necessary to allow MBI to
retain and own at least Fifty-one percent (51%) Limited Partnership Interest.
9.2 MECHANICS. If BPOW shall elect to exercise its option within the
time provided, it shall give MBI written notice to that effect during the option
period specifying the percentage to be purchased. Closing shall occur on the
10th business day following notice. The purchase shall be for cash.
ARTICLE X
DISSOLUTION, LIQUIDATION AND WINDING UP
10.1 DISSOLUTION AND WINDING UP. Except as otherwise expressly
provided in this Agreement, the Partnership shall be dissolved and wound up upon
the occurrence of any of the following events:
(a) The distribution to the Partners of all Partnership Property
(provided that nothing contained in this clause (a) shall be
deemed to require or permit any action that would be
violative of or adversely affect any lease or sublease to
which the Partnership is a party);
(b) The expiration of the term provided in Section 2.3;
(c) The written consent of the General Partner and the written
Consent of the Limited Partners; or
(d) The entry of a decree of judicial dissolution by the circuit
court of the county of the principal place of business or
registered office of the Partnership.
(e) The occurrence of a Dissolution Event.
Dissolution shall be effective on the date of the event giving rise to the
dissolution of the Partnership, but the Partnership shall not terminate until
its property shall have been distributed in accordance with the provisions of
Section 10.4. Neither the death, insanity, incompetency, bankruptcy, insolvency
or similar event of dissolution or liquidation of a Limited Partner shall
dissolve the Partnership.
10.2 LIQUIDATING TRUSTEE. Upon the occurrence of an event under Section
10.1 giving rise to the dissolution and winding up of the Partnership, a person
designated by BPOW, acting in the capacity of the liquidating trustee, will
proceed diligently to wind up the affairs of the Partnership and distribute its
assets in accordance with the provisions of Section 10.4. During the interim,
the liquidating trustee will continue to exercise the rights and operate the
properties of the Partnership consistently with the liquidation thereof,
exercising in connection therewith all the power and authority of the General
Partner under this Agreement.
10.3 ACCOUNTING ON DISSOLUTION. Upon the occurrence of an event under
Section 10.1 giving rise to the dissolution and winding up of the Partnership,
the liquidating trustee will cause the Partnership's accountants to make a
complete accounting of the assets, liabilities and operations of the Partnership
as of the last day of the month in which the dissolution occurs.
10.4 LIQUIDATION AND TERMINATION. As expeditiously as possible:
(a) The liquidating trustee shall pay all liabilities of the
Partnership and establish a reserve, if the trustee deems a reserve to be
necessary, for payment of future or contingent Partnership obligations.
(b) The Partnership shall allocate its estimated losses for the
year and any loss realized by the Partnership on liquidation, including any loss
or Net Income for the current year.
(c) The Partnership shall distribute the balance of the proceeds
of the liquidation after allocating gain or loss under paragraph (b) of this
Section 10.4 among the Partners' accounts in proportion to and to the extent of
their positive Capital Account balances.
(d) In the event efforts to convert assets to cash at a
reasonable price are unsuccessful, Partnership property may be distributed to
the Partners in kind, for purposes of reflecting the allocation of gain or loss
from liquidation in the Partners' capital accounts.
(e) After allocation of gain or loss from liquidation if the
General Partner has a negative balance in its Capital Account, upon notice from
the liquidating trustee, the General Partner shall restore such Capital Account
to zero promptly by paying the trustee the amount of such deficit.
(f) Unless agreed to in writing by all the Partners, the
Limited Partners shall have no right to demand and receive property other
than cash upon liquidation and the liquidating trustee, in any event, shall
have the power to sell Partnership assets for cash in order to provide for
payment of liabilities. All salable assets of the Partnership may be sold in
a commercially reasonable manner in connection with any liquidation at public
or private sale, at such price and upon such terms as the liquidating
trustee, in its, his or her sole discretion, may deem advisable. Any Partner
and any partnership, corporation or other firm in which any Partner is in any
way interested may purchase assets at such sale.
ARTICLE XI
REPRESENTATIONS AND WARRANTIES
11.1 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE LIMITED PARTNERS.
Each Limited Partner, severally but not jointly, represents, warrants, confirms
and agrees with the other Partners as follows:
(a) Such Limited Partner has full right, power and authority to
execute and deliver this Agreement and to perform each of such Limited Partner's
obligations hereunder.
(b) This Agreement has been duly executed and delivered by or on
behalf of such Limited Partner and constitutes the legal, valid and binding
obligation of such Limited Partner in accordance with its terms.
(c) Such Limited Partner is not subject to any restriction or
agreement which prohibits or would be violated by the execution and delivery of
this Agreement or by the consummation of the transactions contemplated herein or
pursuant to which the consent of any third person, firm or corporation is
required in order to give effect to the transactions contemplated herein.
(d) Such Limited Partner (i) has such knowledge of business and
financial affairs as is necessary to enable it to understand the nature of and
the risks attendant to the investment contemplated herein and to understand the
particular financial, legal and tax implications of the business to be conducted
by the Partnership; and (ii) has had access to any and all information
concerning the Partnership which the Limited Partner and the Limited Partner's
legal, tax and other advisors requested or considered necessary to make a proper
evaluation of such an investment and has received such representations and
warranties with respect thereto as deemed by such Limited Partner as necessary
and appropriate in connection with such evaluation.
(e) Such Limited Partner understands that the Limited
Partnership Interest being acquired has not been registered under the Securities
Act, on the grounds that the investment in the Partnership is exempt from
registration thereunder. Such Limited Partner further understands that the
Limited Partnership Interest being acquired by it has not been registered under
the securities laws of any other jurisdiction on the grounds that the investment
in the Partnership is likewise exempt from registration. Such Limited Partner
represents that its Limited Partnership Interest is being acquired for
investment for such Limited Partner's own account, with no present intention of
reselling or otherwise disposing of any portion of such investment and
understands that the reliance of the Partners and the Partnership upon such
exemptions is predicated upon the lack of such intention. In the event sale is
permitted under this Agreement, such Limited Partner in no event will sell,
transfer or otherwise dispose of its Limited Partnership Interest or any portion
thereof, unless and until such Limited Partner delivers to the Partnership
advance notice of the intended sale, transfer or other disposition and an
opinion of counsel reasonably satisfactory to the General Partner and to counsel
for the Partnership that registration is not required for such sale, transfer or
other disposition under, and that any such sale, transfer or other disposition
will not violate the Securities Act, or applicable state securities laws or any
rule or regulation promulgated thereunder.
(f) Such Limited Partner further acknowledges the Limited
Partner's understanding that no trading market for Limited Partnership Interests
exists.
11.2 REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE GENERAL PARTNER.
The General Partner represents and warrants to and confirms and agrees with the
other Partners that: (i) the General Partner has full right, power and
authority to execute and deliver this Agreement and to perform each of its
obligations hereunder; (ii) the General Partner has taken all corporate action
to duly execute and deliver this Agreement; (iii) this Agreement has been duly
executed and delivered and is a duly and validly binding obligation of the
General Partner in accordance with its terms; (iv) the General Partner is not
subject to any restriction or agreement which prohibits or would be violated by
the execution and delivery of this Agreement or the consummation of the
transactions contemplated herein or pursuant to which the consent of any third
person, firm or corporation is required in order to give effect to the
transactions contemplated herein; and (v) the General Partner will not take any
action that might cause the Partnership to lose its status as a partnership for
Federal income tax purposes.
ARTICLE XII
GENERAL
12.1 EXECUTIVE SERVICE FEE. In consideration of the management services
to be provided by the General Partner for and on behalf of the Partnership, the
Partnership shall pay to the General Partner an annual fee in an amount equal to
1.25% of the "Gross Sales" (as herein defined) of the Restaurant in respect of
each Fiscal Year of the Partnership. Such annual fee will be payable within
thirty (30) days following the determination thereof. No other fees shall be
paid to the General Partner. General Partner is entitled to be reimbursed for
all reasonable out-of-pocket expenses incurred on behalf of the Partnership. As
used herein, "Gross Sales" means the entire amount of the actual sales price of
all sales of food, beverages and merchandise conducted in or from the
Restaurant, and sales by any concessionaire or licensee in the Restaurant.
"Gross Sales" shall not include, however, any sums collected and paid out for
any sales, excise or gross receipts tax imposed upon the sale of any
food or beverages by any duly constituted governmental authority nor shall it
include the exchange of food or beverages between MBI facilities, if any,
where such exchange of food or beverages is made for the convenient operation
of MBI's business and not for the purpose of consummating elsewhere a sale
which has theretofore been made at, in or from the Restaurant, or for the
purpose of depriving the Partnership of the benefit of a sale which otherwise
would be made at, in or from the Restaurant, nor the amount of returns to
shippers or manufacturers, nor the amount of any complimentary food,
beverages or merchandise given out at the Restaurant for promotional or other
purposes, nor the amount of any cash or credit refund made upon any sale
where the merchandise sold, or some part thereof, is thereafter returned by
the purchaser and accepted by the Partnership, nor receipts from public
telephones, stamp machines, public toilet locks or vending machines, nor
sales of furniture, equipment, property or bulk sales not in the ordinary
course of business, nor sales to employees, nor any credit card charges
payable by the Partnership.
12.2 NOTICES. All communications, notices and consents provided for
herein shall be addressed to the party at the address shown on the signature
page, shall be in writing and be given in person or by means of personal
delivery, telex, telecopy or other wire transmission (with request for assurance
of receipt in a manner typical with respect to communications of that type) or
by mail or express mail or courier, and shall become effective (i) on delivery
if given in person, (ii) on the date of transmission if sent by telex, telecopy
or other wire transmission, (iii)(a) four business days after being deposited in
the mails (addressed to the address set forth following the person's or Entity's
name on the signature page hereto), with proper postage for first class
registered or certified mail, prepaid, or (b) on the next business day in the
event of express mail or courier.
Partners may change their addresses for the purpose of this Section 12.2 by
written notice to the Partnership and all Partners.
12.3 FURTHER ASSURANCES. Each of the parties to this Agreement agrees
to execute, acknowledge, deliver, file, record and publish such further
certificates, instruments, agreements and other documents, and to take all such
further action as may be required by law or deemed by the General Partner to be
necessary in furtherance of the Partnership's purposes and the objectives and
intentions underlying this Agreement and not inconsistent with the terms of this
Agreement.
12.4 ENTIRE AGREEMENT. This instrument incorporates the entire
agreement among the parties hereto, regardless of anything to the contrary
contained in any certificate of limited partnership or other instrument or
notice purporting to summarize the terms of this Agreement, whether or not the
same shall be recorded or published.
12.5 AMENDMENTS.
(a) Except as otherwise provided in this Section 12.5, this
Agreement and any certificate of limited partnership may not be modified or
amended without first obtaining the written Consent of the Limited Partners and
the written consent of the General Partner. When any modification or amendment
of this Agreement becomes effective, all of the Partners will be bound by the
terms and conditions of this Agreement as so amended; PROVIDED, HOWEVER, that no
such amendment or modification shall affect adversely the rights or interest of
any Limited Partner without the specific written consent of such Limited
Partner.
(b) In addition to any amendment otherwise authorized herein,
the General Partner may amend this Partnership Agreement from time to time
without the consent of any of the Limited Partners:
(i) to reflect the addition or substitution of Limited
Partners or the reduction of capital accounts upon the return of capital to
the Partners; or
(ii) to make all filings as may be necessary or proper to provide
that this Agreement shall constitute, for all purposes, an agreement of
limited partnership under the terms of the laws of the State of Missouri as
in effect from time to time.
12.6 GENDER AND NUMBER. Unless the context otherwise requires, when
used in the Agreement, the singular includes the plural and vice versa, and the
masculine includes the feminine and neuter and vice versa. A person is deemed
to include an individual or any other Entity.
12.7 BENEFIT. This Agreement is binding upon and inures to the benefit
of the parties to this Agreement, their heirs, legal representatives, successors
and assigns.
12.8 CAPTIONS. Captions are inserted for convenience only and shall not
be given any legal effect.
12.9 EXECUTION. This Agreement may be executed in any number of
counterparts, and each such counterpart will, for all purposes, be deemed an
original instrument, but all such counterparts together will constitute but one
and the same agreement.
12.10 NO THIRD PARTY BENEFICIARIES. This Agreement is solely for the
benefit of the parties hereto and their respective Affiliates and no provision
of this Agreement shall be deemed to confer upon third parties any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
12.11 GOVERNING LAW AND SEVERABILITY. This Agreement shall be governed
by the laws of the State of Missouri. If any provision hereof is determined to
be invalid or unenforceable, it shall be modified or deleted, if necessary, from
this Agreement in order to prevent this Agreement as a whole from being rendered
invalid or unenforceable, and this Agreement shall be interpreted to give effect
to the intention of the Partners ascertained from this Agreement as a whole,
even if that requires taking the invalid or unenforceable provision into
consideration in ascertaining such intention (but only for that purpose).
12.12 CHOICE OF FORUM. All suits, actions or proceedings arising out of
or relating to this Partnership Agreement shall be brought either (i) in a state
court in Greene County, Missouri or in the United States District Court for the
Western District of Missouri, or (ii) in a state court in Otsego County,
Michigan or in the United States District Court for the Eastern District of
Michigan, which courts shall be the exclusive forums for all such suits, actions
or proceedings. Each of the Partners waives any objection which any of them now
or hereafter have to the laying of venue in any such court of any such suit,
action or proceeding.
12.13 CONSENT TO JURISDICTION. Each of the Partners hereby irrevocably
consents to the jurisdiction of any court set forth in Section 12.12 above.
12.14 ATTORNEY FEES AND EXPENSES. In the event of litigation between the
parties concerning breach or enforcement of this Partnership Agreement, the
parties agree that the prevailing party shall be entitled to recover from the
non-prevailing party all of its court costs and expenses, including recovery of
all reasonable attorney fees incurred.
ARTICLE XIII
OPTION FOR MBI SHARES
13.1 OPTION. As further consideration for the execution by BPOW of this
Agreement, MBI hereby irrevocably grants to BPOW the right and option to
purchase up to fifty thousand (50,000) of the shares of One
Cent ($.01) par value common stock of MBI (the "Stock"), exercisable by
written notice from BPOW to MBI and tender of the purchase price. This
option may be exercised at any time within three (3) years following the
opening of the Restaurant on the Property. The purchase price for each such
share of Stock shall be equal to the closing trade price on the trading day
immediately preceding the date of the execution of this Agreement. Upon
request of BPOW, the Stock shall be registered at the expense of MBI under
all applicable state and federal securities laws. The Option Agreement shall
be in customary form, including customary anti-dilution provisions.
ARTICLE XIV
COMPETITION
14.1 BY PARTNERSHIP, MBI AND GENERAL PARTNER. For a period commencing
with the date of this Agreement until two (2) years following the earlier of (i)
MBI's and General Partner's withdrawal from the Partnership, or (ii) termination
of this Partnership, MBI and the General Partner ("Covenantors") agree that
they will not directly or indirectly, either as principal, agent, employer,
partner or in any capacity:
(a) operate a restaurant in any way similar to the Restaurant
within fifty (50) miles of any retail store now or hereafter operated by BPOW or
its Affiliates;
(b) enter into any business arrangement for construction or
operation of a restaurant in any way similar to the Restaurant with any company
in the United States which competes with BPOW or its present Affiliates (a
"Competitor") in their principal businesses including fishing, hunting, outdoor,
marine and camping products and services;
(c) solicit any employees or officers of Bass Pro to work for
MBI until more than twelve (12) months after termination of employment with Bass
Pro; or
(d) operate a restaurant within one (1) miles of the location of
a store operated by a Competitor.
By execution of this Limited Partnership Agreement, MBI agrees to cause its
officers, directors or employees to abide by the promises of MBI made in this
Article XIV.
Notwithstanding the foregoing, MBI may, without violating this Section
14.1, operate within the entire State of Michigan and within a fifty (50) mile
radius of its proposed restaurant location in Atlanta, Georgia. BPOW may, at
its option, release MBI from this Article XIV.
14.2 OTHER TERMS. Covenantors agree and recognize that BPOW and its
Affiliates will suffer irreparable harm if the Covenantors should violate the
agreements set forth herein and further agree that it would be difficult, if not
impossible, to compute the damage to BPOW or its Affiliates as a result of such
breaches and that, therefore, BPOW and its Affiliates are without adequate legal
remedy in the event of such breach and that BPOW or its Affiliates would be
entitled to injunctive relief against any existing or threatened breach. It is
further agreed and recognized by Covenantors that if any provisions of this
Covenant are held invalid, such provisions can be severed and the balance of the
Covenant shall remain valid and enforceable and that further, should any court
hold the scope of business restricted or the time and geographical limitations
of this Covenant too broad to be enforced, such court shall not disregard this
Covenant but shall instead enforce such provisions as to such scope, time and
geographical area as the court deems just and equitable.
14.3 ENFORCEMENT. It is further agreed and recognized by the
Covenantors that if BPOW or its Affiliates are forced to utilize courts for the
enforcement of this Covenant, that it shall be entitled to receive, in
addition to all other relief sought, its reasonable attorney fees and court
costs associated with the successful enforcement thereof.
IN WITNESS WHEREOF, this Limited Partnership Agreement has been duly sworn
to and executed as of the date first above written.
LIMITED PARTNER
BASS PRO OUTDOOR WORLD, L.P.,
a Missouri Limited Partnership
By: BASSGEC MANAGEMENT COMPANY,
Its General Partner
By: /s/ Susie Henry
--------------------------------
Its: Executive Vice President
Address: 2500 East Kearney
Springfield, MO 65898
LIMITED PARTNER
BIG BUCK BREWERY & STEAKHOUSE, INC.
By: /s/ William F. Rolinski
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Its: President and CEO
Address: 550 South Wisconsin St.
Gaylord, Michigan 49735
GENERAL PARTNER
BBBP MANAGEMENT COMPANY
By: /s/ William R. Rolinski
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Its: Sole Incorporator
Address: 550 South Wisconsin St.
Gaylord, Michigan 49735