Exhibit 3.3

 

 

 

SECOND AMENDED AND RESTATED AGREEMENT

OF GENERAL PARTNERSHIP OF

UNIVERSAL CITY FLORIDA HOLDING CO. II

 

 

 

TABLE OF CONTENTS

 

1.	Formation and Name of Partnership
2.	Purpose
3.	Principal Place of Business
4.	Term
5.	Representations
6.	Intentionally omitted
7.	Loan Arrangements
8.	Intentionally omitted
9.	Contracts With Interested Entities
10.	Joint Approval Matters
11.	Management of the Partnership
12.	Intentionally omitted
13.	Intentionally omitted
14.	Staffing
15.	Intentionally omitted
16.	Calls for Capital Contributions
17.	Shift of Control
18.	Capital Accounts
19.	Allocations of Profits and Losses; Distributions
20.	Intentionally omitted
21.	Transfers of Interest; Withdrawal
22.	Intentionally Omitted.
23.	Events of Default
24.	Limitations on Defaulting Partner
25.	Non-Waiver
26.	Dissolution Events
27.	Winding Up Procedure
28.	Improper Dissolution
29.	Arbitration Procedure
30.	In-Kind Valuation
31.	Other Theme Park Attractions
32.	Confidentiality
33.	Banking; Auditors
34.	Initial Expenses
35.	Usury Limitations
36.	Time of the Essence
37.	Notices
38.	Applicable Law
39.	Fiscal Year
40.	Tax Matters Partner; Tax Elections
41.	Audit Committee
42.	Captions
43.	Fair Construction
44.	No Third Party Beneficiary
45.	Only Agreements

 

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46.	Successors and Assigns
47.	Intentionally omitted
48.	Affiliate Defined
49.	Severability
50.	Access to Information
51.	Guarantee
52.	Limits on exercise of rights

 

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GLOSSARY OF DEFINED TERMS

 

	Page
Adjusted Capital Account	14
Adjusted Capital Account Deficit	14
affiliate	29
Agreement	1
Authorized UniCo Transaction	16
Blackstone FMP	1
Blackstone Offshore	1
Blackstone Parent	1
Blackstone Partner	1
Blackstone Partners	1
Blackstone Representatives	5
Blackstone USE	1
Blackstone UTP	1
Blackstone UTP A	1
Call	6
Call Payments	6
Calling Partner	6
Carrying Value	12
Cash Flow	9
Code	12
Combined Project	2
Credit Agreement	4
Defaulting Partner	18
Dissolution Notice	19
Effective Date	3
Electing Partner	20
Election Notice	20
equity	25
equity kicker	25
Event of Default	17
Fiscal Period	12
Gate 1	2
Gate 2	2
HI	1
Hypothetical Income Tax	13
Key Elements	24
majority partner	9
Master Site	2
Merger	2
minority partner	9
Net Income	11
Net Loss	11
New LP	2
Non-calling Partner	6

 

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Nonrecourse Deductions	15
Offering Group	16
Original Tour	1
Other UniCo Park	24
Partner	3
Partner A	8
Partners	3
Partners’ Agreement	2
Partnership	1, 3
Partnership Minimum Gain	15
Prime	9
Process Date	20
Project 1	2
Project 2	2
Purchase Agreement	1
Rank	1
Rank America	1
Rank I	1
Rank Parent	2
Related minority partner	10
Related Partnerships	2
Representative	5
Representatives	5
Similar Theme Park	24
Studio	2
Tax Distribution	13
tax matters partner	28
UCDP	2
UCFP	2
Unilateral Call	6
Universal City Florida Holding Co. II	3
Universal City, Florida	2
Universal Parent	1
Universal Representatives	5
Withdrawing Partner	19

 

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SECOND
AMENDED AND RESTATED AGREEMENT OF
GENERAL PARTNERSHIP OF
UNIVERSAL CITY FLORIDA HOLDING CO. II

 

THIS AGREEMENT (the “Agreement”) is made and entered into as of July 27, 2000, among BLACKSTONE UTP CAPITAL PARTNERS L.P., a Delaware limited partnership (“Blackstone UTP”), BLACKSTONE UTP CAPITAL PARTNERS A  L.P., a Delaware limited  partnership (“Blackstone UTP A”), BLACKSTONE UTP OFFSHORE CAPITAL PARTNERS L.P., a Cayman Islands exempted limited partnership (“Blackstone Offshore”), and BLACKSTONE FAMILY MEDIA PARTNERSHIP III L.P., a Delaware limited partnership (“Blackstone FMP” and, together with Blackstone Offshore, Blackstone UTP A, and Blackstone UTP, collectively, the “Blackstone Partners” and individually, a “Blackstone Partner”) and UNIVERSAL CITY PROPERTY MANAGEMENT COMPANY II, a Delaware corporation, hereinafter referred to as “UniCo,” a wholly owned subsidiary of Universal Studios, Inc. (“Universal Parent”).

 

W I T N E S S E T H

 

WHEREAS, Universal Parent is a diversified international company engaged in the production and distribution of theatrical motion pictures and television product, non-theatrical film activities, merchandising and publishing of film properties, other business activities, and operation of the Universal Studios Tour in Los Angeles, California (the “Original Tour”); and

 

WHEREAS, the Blackstone Partners have been organized for the purpose of acquiring the partnership interests of Rank Orlando II, Inc. (“Rank”) in Universal City Holding Co. II (the “Partnership”) and of Rank Orlando, Inc. (“Rank I”) in Universal City Florida Holding Co. I (“HI”); and

 

WHEREAS, the Blackstone Partners are affiliates of  Blackstone Capital Partners III Merchant Banking Fund, L.P. and its affiliates (“Blackstone Parent”); and

 

WHEREAS, on May 19, 2000, Rank America, Inc. (“Rank America”), Rank, Rank I and Blackstone USE Acquisition Company, L.L.C. (“Blackstone USE”), entered into a Purchase Agreement (the “Purchase Agreement”) providing for the purchase on the closing date thereunder by Blackstone USE of  Rank’s 50% partnership interest in  this Partnership and Rank I’s 50% interest in HI;

 

WHEREAS, pursuant to an Assignment and Assumption Agreement, dated as of the date hereof, Blackstone USE assigned its rights to the Blackstone Partners under the Purchase Agreement;

 

WHEREAS, the execution and deliver of this Amended and Restated Agreement of General Partnership by the parties hereto is a condition to the obligations of the parties under the Purchase Agreement; and

 

 

WHEREAS, Rank and Rank I are indirect wholly owned subsidiaries of Rank Leisure Holdings Plc (“Rank Parent”); and

 

WHEREAS, affiliates of Rank Parent and Universal Parent have owned a project (“Project 1”) consisting of a motion picture and television themed tourist attraction (“Gate 1”) sound stages and a motion picture and television studio (the “Studio”) and related activities; and

 

WHEREAS, affiliates of Rank Parent and Universal Parent have owned a project (“Project 2”) consisting of a gated themed tourist attraction (“Gate 2”), a retail commercial development known as CityWalk, and additional land which may be developed for hotels, restaurants, offices, commercial facilities and recreational facilities; and

 

WHEREAS, the land comprising Project 1 and Project 2 is hereinafter referred to as the “Master Site” and consists of approximately 821.02 acres located in the Orlando, Florida area and known as “Universal City, Florida” and the Master Site (including any improvements now or hereafter located on any portion thereof) is sometimes referred to as the “Combined Project”; and

 

WHEREAS, land within the Master Site is being developed as the Portofino Hotel by a partnership in which affiliates of Rank Parent and UniCo have an indirect interest; and

 

WHEREAS, Project 1 was developed and operated by a general partnership organized under the laws of the State of Florida known as Universal City Florida Partners (“UCFP”); and

 

WHEREAS, Project 2 was developed and operated by a general partnership organized under the laws of the State of Florida known as Universal City Development Partners (“UCDP”); and

 

WHEREAS, on January 6, 2000, (i) UCDP converted into Universal City Development Partners, LP, a limited partnership organized under the laws of the State of Delaware (“New LP”)  and (ii) a successor partnership to UCFP  merged into the New LP (the “Merger”); and

 

WHEREAS, from and after the Merger, the Combined Project has been operated through the New LP; and

 

WHEREAS, this Partnership,  HI and New LP are hereinafter referred to as the “Related Partnerships”; and

 

WHEREAS, contemporaneously with the execution and delivery of this agreement, the Blackstone Partners and Universal Parent are entering into an Amended and Restated Partners’ Agreement (the “Partners’ Agreement”).

 

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NOW, THEREFORE, it is agreed by and between the parties hereto as follows:

 

1.             Formation and Name of Partnership.

 

Each of the Blackstone Partners and UniCo (collectively, the “Partners” and individually a “Partner”) hereby continue a general partnership, with each as a partner, under the laws of the State of Florida, which general partnership is known as “Universal City Florida Holding Co. II” (hereinafter referred to as the “Partnership”) under and pursuant to the terms of this Agreement.  The Partnership is organized, and governed by, the Revised Uniform Partnership Act in effect in the State of Florida on the Effective Date.

 

2.             Purpose.

 

The purposes of this Partnership shall be to serve as sole general partner of New LP.

 

If any of the Partners  becomes aware of an opportunity to acquire real property which is located within a radius of 3 miles from any spot on the perimeter of the Master Site, that Partner shall promptly advise the other Partners so that if the Partners believe that the acquisition of such real property will benefit the Partnership, the Partnership (or a Related Partnership) rather than any individual Partner will have the opportunity to acquire such real property.  If one Partner or its affiliates in the capacity as a partner of the Partnership or as a partner of a Related Partnership opposes the Partnership’s or a Related Partnership’s acquisition of such property and the other Partner or its affiliates in both of such capacities favors such acquisition, the Partner (or its affiliates) opposing such acquisition and its affiliates will be prohibited from acquiring or entering into an agreement to acquire such property for 2 years from the date the Partnership determined not to acquire such property, and the other Partner and its affiliates shall be free to acquire such property at any time.  If any Partner and its affiliates in the capacities described in the prior sentence oppose the Partnership’s acquisition of such property, the Partners and their affiliates shall be free to acquire such property at any time.  If during the aforementioned 2-year period, the Partner or its affiliates who opposed the Partnership’s acquisition of the property change positions and propose that the Partnership or a Related Partnership acquire the property, the above provisions of this grammatical paragraph will thereafter apply as if the previous advise and rejection had not occurred.

 

3.             Principal Place of Business.  The principal place of business of the Partnership shall be Orlando, Florida, or at such other places as the Partners shall designate.

 

4.             Term.  The term of the Partnership began in 1995.  This Agreement becomes effective on July 27, 2000 (the “Effective Date”).  The Partnership thereafter shall be indefinite in duration, subject to the provisions for termination hereinafter set forth.  No Partner shall dissociate from the Partnership, terminate the

 

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Partnership, or seek a dissolution of the Partnership except under circumstances expressly authorized elsewhere in this Agreement.  The existence of the Partnership as a separate legal entity shall continue until its termination in accordance with the provisions of this Agreement.

 

5.             Representations.  Each of the Blackstone Partners and UniCo makes the following representations: it is duly organized and existing in good standing under the laws of the state of its organization with full power and authority to enter into this Agreement; this Agreement constitutes the legal, valid and binding obligation of such Partner enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the rights or creditors generally and subject to the general powers of a court of equity; the execution and performance of this Agreement by such Partner does not and will not violate any provision of, or constitute a default under, or breach of any agreement or other instrument, order, arbitration award, judgment or decree to which such Partner is a party or by which any of its assets is bound.  The Partnership makes the following representation: as of the Effective Date, the capital account of UniCo in the Partnership is equal to the aggregate capital accounts of the Blackstone Partners in the Partnership.

 

6.             Intentionally omitted.

 

7.             Loan Arrangements.  Pursuant to the Amended and Restated Credit Agreement, dated as of November 5, 1999 by and between New LP, the lending institutions identified therein and Morgan Guaranty Trust Company of New York, as agent, as amended by Amendment No. 1 thereto dated as of July 27, 2000 (the “Credit Agreement”), the Partnership as General Partner of New LP, as debtor, is subject to certain obligations and restrictions.  If the Partnership causes New LP to enter into loan arrangements which are different than the Credit Agreement, the Partners agree to act reasonably to modify those provisions of this Agreement which were drafted to reflect the Credit Agreement so as to reflect the other loan.

 

8.             Intentionally omitted.

 

9.             Contracts With Interested Entities.  Except as elsewhere provided in or permitted by this Agreement, the Partnership shall not enter into contracts with a Partner or an affiliate of a Partner without the approval of the Representatives referred to in Section 11 below.

 

10.           Joint Approval Matters.  Except as otherwise provided in this Agreement, the following matters shall require the written approval of the Blackstone Partners, on the one hand, and UniCo on the other hand:

 

(a)           Dissolution of the Partnership, sale, pledge or encumbrance of significant assets;

 

(b)           Issuance of securities of, or interests in, the Partnership;

 

(c)           Changes in the primary business of the Partnership;

 

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