Agreement of Limited Partnership - Boston Celtics LP II
AGREEMENT OF LIMITED PARTNERSHIP
OF
BOSTON CELTICS LIMITED PARTNERSHIP II
THE UNDERSIGNED are executing this Agreement of Limited Partnership
("Agreement") for the purpose of forming a limited partnership (the
"Partnership") pursuant to the provisions of the Delaware Revised Uniform
Limited Partnership Act, 6 DEL. C. secs. 17-101 ET SEQ. (the "LP Act"), and do
hereby certify and agree as follows:
1. NAME. The name of the Partnership shall be Boston Celtics Limited
Partnership II, or such other name as the General Partners may from time to time
hereafter designate.
2. DEFINITIONS. In addition to terms otherwise defined herein, the
following terms are used herein as defined below:
"Capital Contribution" means, with respect to any Partner, the amount of
capital contributed by such Partner to the Partnership in accordance with
Section 8 hereof.
"Event of Withdrawal of a General Partner" means an event that causes a
person or entity to cease to be a General Partner as provided in Section 17-402
of the LP Act.
"General Partners" means the Initial General Partners and any or all
other persons or entities admitted as General Partners pursuant to the
provisions of this Agreement, so long as they remain General Partners. Reference
to a "General Partner" means any one of the General Partners.
"Initial General Partner" means BCLP II GP, Inc.
"Initial Limited Partner" means Boston Celtics Limited Partnership.
"Interest" means the ownership interest of a Partner in the Partnership
(which shall be considered personal property for all purposes), consisting of
(i) such Partner's Percentage Interest in profits, losses, allocations and
distributions, (ii) such Partner's right to vote or grant or withhold consents
with respect to Partnership matters as provided herein or in the LP Act, and
(iii) such Partner's other rights and privileges as herein provided.
"Limited Partners" means the Initial Limited Partners and all other
persons or entities admitted as additional or substituted Limited Partners
pursuant to this Agreement, so long as they remain Limited Partners. Reference
to a "Limited Partner" means any one of the Limited Partners.
"Majority in Interest of the Limited Partners" means Limited Partners
whose Percentage Interests aggregate to greater than 50% of the Percentage
Interests of all Limited Partners.
"Partners" means those persons or entities who from time to time are the
General Partners and the Limited Partners. Reference to a "Partner" means any
one of the Partners.
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"Percentage Interest" means a Partner's share of the profits and losses
of the Partnership and the Partner's percentage right to receive distributions
of Partnership assets. The Percentage Interest of each Partner shall be the
percentage set forth opposite such Partner's name on Schedule I hereto, as such
schedule shall be amended from time to time in accordance with the provisions
hereof. The combined Percentage Interest of all Partners shall at all times
equal 100%.
Words used herein, regardless of the number and gender used, shall be
deemed and construed to include any other number, singular or plural, and any
other gender, masculine, feminine or neuter, as the context requires, and, as
used herein, unless the context clearly requires otherwise, the words "hereof,"
"herein," and "hereunder" and words of similar import shall refer to this
Agreement as a whole and not to any particular provisions hereof.
3. PURPOSE. The purposes of the Partnership shall be
(a) the acquisition, ownership and operation of the Boston Celtics
professional basketball team of the NBA, including the management and operation
of basketball games, the licensing and exploitation of television, cable,
network and radio rights to broadcast basketball games, the acquisition and
disposition of player contracts, the leasing, licensing, construction and/or
acquisition of facilities, properties and/or space in which to play basketball
games and conduct the Partnership's operations, the licensing and use of the
Boston Celtics name for promotional and other purposes, and the participation in
the NBA as an NBA member; the carrying on of any other business relating or
incidental to the ownership and operation of the Boston Celtics professional
basketball team; the entering into any partnership, joint venture or other
similar arrangement to engage in any of the foregoing activities; and any
activities incidental or related to the foregoing activities;
(b) the development, acquisition, ownership and operation of other
businesses and activities, including without limitation the ownership and
operation of other sports teams, over-the-air or cable television stations or
networks, radio stations or networks, or other entertainment or communications
businesses; the carrying on of any other business relating or incidental to such
activities; the entering into any partnership, joint venture or other similar
arrangement to engage in any of the foregoing activities; and any activities
incidental or related to the foregoing activities; and
(c) engaging in such additional or other businesses as may be agreed upon
by all of the General Partners and a Majority in Interest of the Limited
Partners from time to time. In addition to the foregoing business activities,
the Partnership may engage in businesses and activities incidental thereto, so
far as such businesses and activities are necessary or convenient to the
conduct, promotion or attainment of the stated purposes of the Partnership.
4. OFFICES.
The principal office of the Partnership, and such additional offices as
the General Partners may determine to establish, shall be located at such place
or places inside or outside the State of Delaware as the General Partners may
designate from time to time.
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The registered office of the Partnership in the State of Delaware is
located at Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle
County, Delaware 19801. The registered agent of the Partnership for service of
process at such address is The Corporation Trust Company.
5. PARTNERS. The name and business or residence address of each Partner
of the Partnership, the General Partners and the Limited Partners being
separately designated, are as set forth on Schedule I attached hereto, as the
same may be amended from time to time.
6. TERM. The Partnership shall continue until dissolved and terminated in
accordance with Section 14 of this Agreement.
7. MANAGEMENT OF THE PARTNERSHIP.
The General Partners shall have the exclusive right to manage the
business of the Partnership, and shall have all powers and rights necessary,
appropriate or advisable to effectuate and carry out the purposes and business
of the Partnership and, in general, all powers permitted to be exercised by a
general partner under the LP Act. The General Partners may appoint, employ, or
otherwise contract with any persons or entities for the transaction of the
business of the Partnership or the performance of services for or on behalf of
the Partnership, and the General Partners may delegate to any such person (who
may be designated an officer of the Partnership) or entity such authority to act
on behalf of the Partnership as the General Partners may from time to time deem
appropriate.
Except as to actions herein specified to be taken by all the General
Partners or by the General Partners acting unanimously, whenever there is more
than one General Partner of the Partnership, the duties and powers of the
General Partners may be exercised by any one of the General Partners acting
alone.
No Limited Partner, in his status as such, shall have the right to take
part in the management or control of the business of the Partnership or to act
for or bind the Partnership or otherwise to transact any business on behalf of
the Partnership.
Any action to approve or consent to any matter hereunder or pursuant to
the LP Act by the General Partners, the Limited Partners or all Partners may be
accomplished at a meeting of the applicable Partners, held at such time and
place as shall have been agreed on by them, or by written consent executed by at
least such number or percentage in interest of Partners as is required hereunder
or under the LP Act to approve the matter at issue. Written consents may be
executed and delivered by telecopy or like electronic means.
8. CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS; ADMINISTRATIVE MATTERS.
The Initial General Partners and the Initial Limited Partners have each
contributed to the Partnership in cash the respective amount set forth on
Schedule I hereto. Except as otherwise consented to by all Partners, the Initial
General Partners and the Initial Limited Partners shall not be required to make
any further contributions to the capital of the Partnership. Persons or entities
hereafter admitted as General Partners or Limited Partners of the Partnership
shall make such
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contributions of cash (or promissory obligations), property or services to the
Partnership as shall be determined by the General Partners, acting unanimously,
at the time of each such admission.
A single, separate capital account shall be maintained for each Partner.
Each Partner's capital account shall be credited with the amount of money and
the fair market value of property (net of any liabilities secured by such
contributed property that the Partnership assumes or takes subject to)
contributed by that Partner to the Partnership; the amount of any Partnership
liabilities assumed by such Partner (other than in connection with a
distribution of Partnership property), and such Partner's distributive share of
Partnership profits (including tax exempt income). Each Partner's capital
account shall be debited with the amount of money and the fair market value of
property (net of any liabilities that such Partner assumes or takes subject to)
distributed to such Partner; the amount of any liabilities of such Partner
assumed by the Partnership (other than in connection with a contribution); and
such Partner's distributive share of Partnership losses (including items that
may be neither deducted nor capitalized for federal income tax purposes).
Notwithstanding any provision of this Agreement to the contrary, each
Partner's capital account shall be maintained and adjusted in accordance with
the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"), and
the regulations thereunder (the "Regulations"), including, without limitation,
(i) the adjustments permitted or required by Internal Revenue Code Section
704(b) and, to the extent applicable, the principles expressed in Internal
Revenue Code Section 704(c) and (ii) adjustments required to maintain capital
accounts in accordance with the "substantial economic effect test" set forth in
the Regulations under Internal Revenue Code Section 704(b).
Any Partner, including any substitute Partner, who shall receive an
Interest (or whose Interest shall be increased) by means of a transfer to him of
all or a part of the Interest of another Partner, shall have a capital account
that reflects the capital account associated with the transferred Interest (or
the applicable percentage thereof in case of a transfer of a part of an
Interest).
The Partnership hereby designates BCLP II GP, Inc. as "Tax Matters
Partner" for purposes of Internal Revenue Code Section 6231 and the Regulations
promulgated thereunder. The Tax Matters Partner shall promptly advise each
Partner of any audit proceedings proposed to be conducted with respect to the
Partnership.
It is the intention of the Partners that the Partnership shall be taxed
as a "partnership" for federal, state, local and foreign income tax purposes.
The Partners agree to take all reasonable actions, including the execution of
such documents, as may reasonably be required in order for the Partnership to
qualify for and receive "partnership" treatment for federal, state, local and
foreign income tax purposes.
The fiscal year of the Partnership shall be a calendar year. The books
and records of the Partnership shall be maintained in accordance with generally
accepted accounting principles and Section 704(b) of the Internal Revenue Code
and the Regulations.
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All items of Partnership income, gain, loss, deduction, credit or the
like shall be allocated among the Partners in accordance with their respective
Percentage Interests as set forth in Schedule I.
9. ASSIGNMENTS OF PARTNERSHIP INTEREST; SUBSTITUTED PARTNERS.
No Limited Partner may sell, assign, pledge or otherwise transfer or
encumber (collectively "transfer") all or any part of his Interest in the
Partnership, and no transferee of all or any part of the Interest of a Limited
Partner shall be admitted as a substituted Limited Partner, without, in either
event, having obtained the prior written consent of all of the General Partners.
No General Partner may transfer all or any part of his Interest in the
Partnership, and no transferee of all or any part of the Interest of a General
Partner shall be admitted as a substituted General Partner, without, in either
event, having obtained the consent of all other General Partners or, if none,
the consent of a Majority in Interest of the Limited Partners.
The General Partners shall amend Schedule I hereto from time to time to
reflect transfers made in accordance with, and as permitted under, this Section
9. Any purported transfer in violation of this Section 9 shall be null and void
and shall not be recognized by the Partnership.
10. WITHDRAWAL. No Partner shall have the right to withdraw from the
Partnership except with the consent of all of the General Partners and upon such
terms and conditions as may be specifically agreed upon between the General
Partners and the withdrawing Partner. The provisions hereof with respect to
distributions upon withdrawal are exclusive and no Partner shall be entitled to
claim any further or different distribution upon withdrawal under Section 17-604
of the LP Act or otherwise.
11. ADDITIONAL PARTNERS. The Partners, acting unanimously, shall have the
right to admit additional General Partners and additional Limited Partners upon
such terms and conditions, at such time or times, and for such capital
contributions as shall be determined by all of the Partners; and in connection
with any such admission, the General Partners shall amend Schedule I hereof to
reflect the name, address and Capital Contribution of the additional Partner and
any agreed upon changes in the Partner's respective Percentage Interests.
12. DISTRIBUTIONS. Distributions of cash or other assets of the
Partnership shall be made at such times and in such amounts as the General
Partners may determine from time to time. Distributions shall be made to (and
profits and losses shall be allocated among) Partners PRO RATA in accordance
with their respective Percentage Interests.
13. RETURN OF CAPITAL. No Partner has the right to receive, and the
General Partners have absolute discretion to make, any distributions to a
Partner which include a return of all or any part of such Partner's Capital
Contribution, provided that upon the dissolution of the Partnership, the assets
of the Partnership shall be distributed as provided in Section 17-804 of the LP
Act. No Partner shall have any personal liability for the return of any
Partner's Capital Contribution. Any return of capital to the Partners shall be
payable solely from the assets of the Partnership.
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14. DISSOLUTION. Subject to the provisions of Section 15 of this
Agreement, the Partnership shall be dissolved and its affairs wound up and
terminated upon the first to occur of the following:
December 31, 2098;
The determination of all of the General Partners to dissolve the
Partnership; or
The occurrence of an Event of Withdrawal of a General Partner or any
other event causing a dissolution of the Partnership under Section 17-801 of the
LP Act.
15. CONTINUATION OF THE PARTNERSHIP. Notwithstanding the provisions of
Section 14(c) hereof, the occurrence of an Event of Withdrawal of a General
Partner shall not dissolve the Partnership if at such time there are one or more
remaining General Partners and any one or more of such remaining General
Partners continue the business of the Partnership (any and all such remaining
General Partners being hereby authorized to continue the business of the
Partnership without dissolution). If upon the occurrence of an Event of
Withdrawal of a General Partner there shall be no remaining General Partner (or
if no remaining General Partner elects to continue the business of the
Partnership as provided in the preceding sentence), the Partnership nonetheless
shall not be dissolved and shall not be required to be wound up if, within
ninety (90) days after the occurrence of such event of withdrawal, all remaining
Partners agree in writing to continue the business of the Partnership and, if
necessary or desired, to the appointment, effective as of the date of
withdrawal, of one or more additional General Partners.
16. AMENDMENTS. This Agreement may be amended only upon the written
consent of all Partners.
17. STANDARD OF CARE; INDEMNIFICATION OF GENERAL PARTNERS, OFFICERS,
EMPLOYEES AND AGENTS.
No General Partner shall have any personal liability whatsoever to the
Partnership or any other Partner by reason of such General Partner's acts or
omissions in connection with the conduct of the business of the Partnership;
provided, however, that nothing contained herein shall protect any General
Partner against any liability to the Partnership or the Partners to which such
General Partner would otherwise be subject by reason of (i) any act or omission
of such Partner that involves actual fraud or willful misconduct or (ii) any
transaction from which such General Partner derived improper personal benefit.
Except as may be limited by mandatory provisions of applicable law, the
Partnership shall indemnify and hold harmless each General Partner and the
officers, directors, stockholders, members, managers or partners of any
non-individual Partner (each an "Indemnified Person") against any and all
losses, claims, damages, expenses and liabilities (including, but not limited
to, any investigation, legal and other reasonable expenses incurred in
connection with, and any amounts paid in settlement of, any action, suit,
proceeding or claim) of any kind or nature whatsoever that such Indemnified
Person may at any time become subject to or liable for by reason of the
formation, operation or termination of the Partnership, or the Indemnified
Person's acting as a Partner under this Agreement, or the authorized actions of
such Indemnified Person in
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connection with the conduct of the affairs of the Partnership (including,
without limitation, indemnification against negligence, gross negligence or
breach of duty); provided, however, that no Indemnified Person shall be entitled
to indemnification if and to the extent that the liability otherwise to be
indemnified for results from (i) any act or omission of such Indemnified Person
that involves actual fraud or willful misconduct or (ii) any transaction from
which such Indemnified Person derived improper personal benefit. The indemnities
provided hereunder shall survive termination of the Partnership and this
Agreement. Each Indemnified Person shall have a claim against the property and
assets of the Partnership for payment of any indemnity amounts from time to time
due hereunder, which amounts shall be paid or properly reserved for prior to the
making of distributions by the Partnership to Partners. Costs and expenses that
are subject to indemnification hereunder shall, at the request of any
Indemnified Person, be advanced by the Partnership to or on behalf of such
Indemnified Person prior to final resolution of a matter, so long as such
Indemnified Person shall have provided the Partnership with a written
undertaking to reimburse the Partnership for all amounts so advanced if it is
ultimately determined that the Indemnified Person is not entitled to
indemnification hereunder.
The contract rights to indemnification and to the advancement of expenses
conferred in this Section 17 shall not be exclusive of any other right that any
person may have or hereafter acquire under any statute, agreement, vote of the
Partners or otherwise.
The Partnership may maintain insurance, at its expense, to protect itself
and any Partner, employee or agent of the Partnership or another partnership,
limited liability company, corporation, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Partnership would
have the power to indemnify such person against such expense, liability or loss
under the LP Act.
The Partnership may, to the extent authorized from time to time by the
General Partners, grant rights to indemnification and to advancement of expenses
to any employee or agent of the Partnership to the fullest extent of the
provisions of this Section 17 with respect to the indemnification and
advancement of expenses of General Partners of the Partnership.
18. GOVERNING LAW. This Agreement shall be governed by, and construed and
enforced in accordance with, the laws of the State of Delaware.
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as
of April 13, 1998.
GENERAL PARTNER
BCLP II GP, Inc.
By: /s/ Richard G. Pond
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Name: Richard G. Pond
Title: Chief Financial Officer
LIMITED PARTNER
BOSTON CELTICS LIMITED PARTNERSHIP
By: /s/ RICHARD G. POND
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Name: Richard G. Pond
Title: Executive Vice President,
Chief Operating Officer,
Treasurer and Secretary
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SCHEDULE I
A. General Partner
Capital Percentage
Name & Address Contribution Interest
BCLP II GP, Inc. $10.00 1%
151 Merrimac Street
Boston, Massachusetts 02114
B. Limited Partner
Capital Percentage
Name & Address Contribution Interest
Boston Celtics Limited Partnership $990.00 99%
33 East 63rd Street
New York, New York 10021
TOTAL $1,000.00 100%