Exhibit 10.1
▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.P.
a New Jersey limited partnership
(formerly Trump's Castle Associates, L.P.)
FOURTH AMENDED AND RESTATED PARTNERSHIP AGREEMENT
March 25, 2003
▇▇▇▇▇ ▇▇▇▇▇▇ ASSOCIATES, L.P.
a New Jersey limited partnership
(formerly Trump's Castle Associates, L.P.)
FOURTH AMENDED AND RESTATED PARTNERSHIP AGREEMENT
THIS FOURTH AMENDED AND RESTATED PARTNERSHIP AGREEMENT is entered into
by and between ▇▇▇▇▇ ▇▇▇▇▇▇, Inc. (formerly Trump's Castle Hotel & Casino,
Inc.), a New Jersey corporation ("TMI"), as general partner, ▇▇▇▇▇ Casino
Holdings, LLC, a Delaware limited liability company ("THC"), as the new limited
partner and ▇▇▇▇▇ Hotels & Casino Resorts Holdings, L.P., a Delaware limited
partnership ("THCR Holdings"), as withdrawing limited partner. Each of TMI and
THC is referred to herein as a "Partner" and collectively they are the
"Partners."
PRELIMINARY STATEMENT
Terms used in this Preliminary Statement which are not defined herein
have the respective meanings set forth in Article 2 of this Agreement.
WHEREAS, TMI and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"), as general partners, and
▇▇▇▇▇ as limited partner, formed a partnership by entering into an Agreement of
Limited Partnership under the laws of the State of New Jersey on May 28, 1985,
and amended such agreement on December 14, 1988, August 8, 1990, February 7,
1992 and February 10, 1992, and further amended and restated such agreement as
set forth in an Amended and Restated Partnership Agreement dated May 29, 1992
(said Amended and Restated Partnership Agreement is referred to herein as the
"Prior Agreement"); and
WHEREAS, in connection with the consummation of an exchange offer and
recapitalization of certain outstanding indebtedness of the Partnership, ▇▇▇▇▇,
TMI and TC/GP, Inc., a Delaware corporation ("TC/GP") amended and restated in
its entirety the Prior Agreement in a Second Amended and Restated Partnership
Agreement dated as of December 30, 1993 (the "Second Restated Agreement"), which
set forth their respective rights and obligations in connection with the
Partnership; and
WHEREAS, in connection with the acquisition of all of the equity
interests in the Partnership by THCR Holdings, ▇▇▇▇▇, TMI and TC/GP amended the
Second Restated Agreement in an Amendment dated October 7, 1996 (the "Amended
Second Restated Agreement"), whereby ▇▇▇▇▇, TMI and TC/GP converted the
Partnership to a limited partnership governed by the New Jersey Uniform Limited
Partnership Law and set forth the respective limited and general partnership
interests of each Partner; and
WHEREAS, ▇▇▇▇▇, TMI and TC/GP amended and restated the Amended Second
Restated Agreement to convert each of Trump's and TC/GP's remaining one (1%)
percent general partnership interests in the Partnership into one (1%) percent
limited partnership interests (the "Conversion") such that upon the consummation
of the Conversion, ▇▇▇▇▇ had a 61.5% limited partnership interest in the
Partnership and TC/GP had a 37.5% limited partnership interest in the
Partnership and simultaneously with the Conversion, ▇▇▇▇▇ and TC/GP contributed
their respective 61.5% or 37.5% limited partnership interest in the Partnership
to THCR Holdings, substituted THCR Holdings as a limited partner of the
Partnership in lieu of ▇▇▇▇▇ and TC/GP to the full extent of the interest so
assigned, and entered into the Third Amended and Restated Partnership Agreement
dated October 7, 1996 (the "Current Agreement"); and
WHEREAS, in connection with the consummation of a refinancing of certain
outstanding indebtedness of the Partnership (the "Refinancing"), THCR Holdings,
the withdrawing limited partner, has contributed its 99% limited partnership
interest in the Partnership to TCH and substituted TCH as a limited partner of
the Partnership in lieu of THCR Holdings to the full extent of the interest so
assigned; and
WHEREAS, TMI and TCH desire to change the name of the Partnership and to
restate their respective rights and obligations in connection with the
Partnership.
NOW, THEREFORE, TMI and TCH agree that the Current Agreement is hereby
amended, restated and superseded in its entirety and that the Partnership is
hereby continued on the terms and conditions set forth herein, and further agree
as follows:
ARTICLE 1
CERTAIN MATTERS
1.1 Name. The name of the Partnership shall be, and the business of
the Partnership shall be conducted under the name of, "▇▇▇▇▇ ▇▇▇▇▇▇ Associates,
L.P." All contracts of the Partnership shall be made, all instruments and
documents executed, and all acts of the Partnership done, in the name of the
Partnership; and all properties of the Partnership shall be acquired, held and
disposed of in the name of the Partnership or in a designated nominee.
1.2 Term. The Partnership shall continue in existence until December
31, 2041 or until the earlier termination of the Partnership in accordance with
the provisions of Article 13.
ARTICLE 2
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
clearly indicated to the contrary, apply to the terms used in this Agreement:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person, and, with respect to any specified natural
Person, any other Person having a relationship with such specified Person by
blood, marriage or adoption not more remote than first cousin. For purposes of
this definition: "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" means this Fourth Amended and Restated Partnership
Agreement, as in effect from time to time.
"Capital Account" has the meaning stated in Section 4.1.
"Casino Control Act" means the New Jersey Casino Control Act and the
regulations promulgated thereunder, each as in effect from time to time.
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"Certificate of Interest" has the meaning stated in Section 15.15.
"Certificate Transfer Ledger" has the meaning stated in Section 15.15.
"Code" means the Internal Revenue Code of 1986, as in effect from time
to time.
"General Partner" shall mean TMI, its successors and assigns.
"Limited Partner" shall mean TCH, its successors and assigns.
"Limited Partner Priority Capital" means, at any date, an amount equal
to $15 million, less distributions made pursuant to Section 5.7.
"New Jersey Uniform Limited Partnership Law" means Sections 1 through 73
of Chapter 2A of Title 42 of the New Jersey Statutes Annotated, as in effect
from time to time.
"Partner" means TMI and TCH, and permitted transferees, successors and
assigns of each.
"Partnership" means ▇▇▇▇▇ ▇▇▇▇▇▇ Associates, L.P.
"Partnership Interest" means the interest of a Partner in the
Partnership.
"Partnership Percentage" has the meaning stated in Section 4.5.
"Person" means any individual, partnership, corporation, company,
association, trust, joint venture, unincorporated organization, entity or
division, or any government, governmental department or agency or political
subdivision thereof.
"Pledge Agreements" means any pledge agreement executed and delivered by
any Partner in connection with the consummation of the Refinancing.
"Profits" and "Losses" mean, for each fiscal year or other period of the
Partnership, the amount of profits or losses, as the case may be, for such year
or period determined in the manner prescribed in Code Section 703(a) using the
tax accounting methods used for Federal income tax purposes and as prescribed in
Regulations under Code Section 704(b) reflecting the book adjustment of the
Capital Accounts as initially reflected in Article 4. Amounts, if any, allocated
and payable pursuant to Section 5.5 shall be treated as expenses for determining
such profits and losses.
"Regulations" means the income tax regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"TCH" has the meaning set forth in the Preamble to this Agreement.
"TMI" has the meaning set forth in the Preamble to this Agreement.
"▇▇▇▇▇ ▇▇▇▇▇▇" has the meaning stated in Article 3.
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ARTICLE 3
PURPOSE
The purpose and business of the Partnership is to conduct casino gaming
and to own and operate the ▇▇▇▇▇ ▇▇▇▇▇▇ Casino Resort and the ancillary
structures, marina and other facilities used or to be used in connection with
the operation thereof located in Atlantic City, New Jersey ("▇▇▇▇▇ ▇▇▇▇▇▇"),
with the power to: (i) buy, sell, lease, or enter into any transaction to
effectuate any of the foregoing; (ii) exercise complete control over ▇▇▇▇▇
▇▇▇▇▇▇ and all personal property attached to or used in connection therewith and
all securities or other interests or obligations arising out of the sale,
exchange or other disposition of ▇▇▇▇▇ ▇▇▇▇▇▇ or any of its properties by the
Partnership; (iii) borrow money for partnership purposes and otherwise mortgage,
pledge or encumber ▇▇▇▇▇ ▇▇▇▇▇▇ or any part thereof either directly or through
one or more nominee corporations; and (iv) do all things necessary, incidental,
desirable or appropriate in connection with the foregoing and related to the
operations, management and financing of ▇▇▇▇▇ ▇▇▇▇▇▇.
ARTICLE 4
CAPITAL ACCOUNTS
4.1 Capital Accounts. A separate capital account shall be maintained
for each Partner (each a "Capital Account"). Capital Accounts shall be
maintained in accordance with the regulations promulgated under Section 704(b)
of the Code.
4.2 Maintenance of Separate Capital Accounts. There shall be
credited to each Partner's Capital Account, as set forth in Section 4.1, each
Partner's share of the Profits of the Partnership allocated to such Partner
pursuant to Article 5 and any additional contributions to the capital of the
Partnership made by such Partner in accordance with Section 4.4. There shall be
charged against each Partner's Capital Account the amount of all cash
distributions made to such Partner (other than such distributions treated as
guaranteed payments pursuant to Section 5.5), such Partner's share of the Losses
of the Partnership allocated to such Partner pursuant to Article 5 and the fair
market value of any property (other than cash) distributed to such Partner.
4.3 Capital Account Determinations. Except as otherwise provided in
this Agreement, whenever it is necessary to determine the Capital Account of any
Partner for purposes of any provision hereof, the Capital Account of the Partner
shall be determined after giving effect to all capital contributions theretofore
made to the Partnership and all allocations of Profits and Losses for
transactions effected prior to the time as of which such determination is made
and all distributions theretofore made. The Capital Account of any Partner,
including any additional or substitute partner, who shall receive a Partnership
Interest in the Partnership or whose Partnership Interest shall be increased by
means of a transfer to such Partner of all or a part of the Partnership Interest
of another Partner shall be credited with (or charged with) the transferor's
Capital Account (or an appropriate part thereof in the case of a partial
transfer of a Partnership Interest); and, in such event, corresponding
adjustments shall be made with respect to the Capital Account of the transferor
Partner.
4.4 Additional Capital Contributions. No Partner shall be obligated
to make any additional contributions to the capital of the Partnership or, as
between Partners, to restore any deficit in its Capital Account. If a Partner
shall make any additional contributions to the capital of the Partnership, the
amount thereof shall be credited to such Partner's Capital Account; but, unless
otherwise agreed among the Partners at the time such contribution is made, such
Partner will not be
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entitled to the return of such contribution prior to the termination of the
Partnership. No additional contribution made by a Partner will result in a
change in the Partnership Percentages of the Partners.
4.5 Partnership Percentages. As of any date, each Partner's
"Partnership Percentage" shall mean such Partner's percentage interest in the
Profits and Losses of the Partnership determined in accordance with this Section
4.5. As of the date of this Agreement the Partnership Percentage of each Partner
is as follows:
GENERAL PARTNERSHIP LIMITED PARTNERSHIP PARTNERSHIP
PARTNER PERCENTAGE PERCENTAGE PERCENTAGE
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▇▇▇▇▇ ▇▇▇▇▇▇, Inc. 1.0% -- 1.0%
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▇▇▇▇▇ Casino Holdings, LLC -- 99.0% 99.0%
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ARTICLE 5
ALLOCATIONS, CERTAIN PAYMENTS AND DISTRIBUTIONS
5.1 Allocations. Except as is otherwise provided in this Agreement,
all Profits and Losses of the Partnership shall be allocated among the Partners
for each calendar year (or portion thereof) and credited or debited, as the case
may be, to their Capital Accounts as follows:
5.1.1 Losses. Losses shall be allocated as follows: (A) First,
to those Partners with positive balances in their Capital Accounts in proportion
to and to the extent of the respective positive balances of such Capital
Accounts, until either the full amount of such Losses shall have been so
allocated or the Capital Account balances equal zero, and (B) next, in
accordance with the Partners' Partnership Percentages.
5.1.2 Profits. Profits shall be allocated as follows: (A)
First, to those Partners with negative balances in their Capital Accounts, in
proportion to and to the extent of the respective negative balances of the
Capital Accounts, until either the full amount of such Profit shall have been so
allocated or the Capital Account balances of such Partners equal zero, (B) then,
if the ratio between the Capital Account balances of the Partners is other than
in the ratio of their then prevailing Partnership Percentages (determined for
this purpose without regard to any unrecovered amounts of Limited Partner
Priority Capital), there shall be credited to the Partners with the lesser
balance so much of the Profit as may be available to eliminate or reduce the
disparity and (C) next, in accordance with the Partners' Partnership
Percentages.
5.2 Allocations for Tax Purposes.
5.2.1 Except as otherwise provided in this Section 5.2,
Profits and Losses for all income tax purposes shall be allocated to the
Partners to the greatest extent practicable in a manner consistent with the
manner set forth in Sections 5.1.1 and 5.1.2 and Code Section 704(b) and (c) and
the Regulations promulgated thereunder. Except as provided in Section 5.2.5,
allocations pursuant to this Section 5.2 shall not be reflected in the Capital
Accounts of the Partners.
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5.2.2 Notwithstanding anything to the contrary in this
Agreement, if there is a net decrease in partnership minimum gain, as defined in
Regulation Section 1.704-2(b)(2), (except as a result of conversion or
refinancing of Partnership indebtedness, certain capital contributions or
revaluations of the Partnership property as further outlined in Regulation
Sections 1.704-2(d)(4), (f)(2) or (f)(3)), each Partner shall be specially
allocated items of Partnership income and gain for such year (and if necessary,
subsequent years) in an amount equal to that Partner's share of the net decrease
in Partnership minimum gain. The items to be so allocated shall be determined in
accordance with Regulation Section 1.704-2(f). This Section 5.2.2 is intended to
comply with the minimum gain chargeback rule in said Section of the Regulations
and shall be interpreted consistently therewith. Allocations pursuant to this
Section 5.2.2 shall be made in proportion to the respective amounts required to
be allocated to each Partner pursuant hereto.
5.2.3 Notwithstanding anything to the contrary in this
Agreement except Section 5.2.2, if there is a net decrease in minimum gain
attributable to partner nonrecourse debt, as determined in accordance with
Regulation Section 1.704-2(i)(2), each Partner shall be specially allocated
items of Partnership income and gain for such year (and if necessary, subsequent
years) in an amount equal to that Partner's share of the net decrease in the
minimum gain attributable to partner nonrecourse debt. The items to be so
allocated shall be determined in accordance with Regulation Section
1.704-2(i)(4) and (j)(2). This Section 5.2.3 is intended to comply with the
minimum gain chargeback requirement contained in Regulations Section
1.704-2(i)(4) and shall be interpreted consistently therewith. Allocations
pursuant to this Section 5.2.3 shall be made in proportion to the respective
amounts required to be allocated to each Partner pursuant hereto.
5.2.4 If during any taxable year of the Partnership any
Partner unexpectedly receives an adjustment, allocation or distribution
described in Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), and such
Partner has a deficit Capital Account balance, there shall be allocated to such
Partner items of income and gain (consisting of a pro rata portion of each item
of Partnership income, including gross income and gain for such year) in an
amount and manner sufficient to eliminate such Partner's deficit Capital Account
balance as quickly as possible. This Section 5.2.4 is intended to constitute a
"Qualified Income Offset", under Regulation Section 1.704-1(b)(2)(ii)(d) and
shall be interpreted consistently therewith.
5.2.5 Each Partner's Capital Account shall be charged for such
Partner's allocable share of expenditures of the Partnership (based on the
Partnership Percentages prevailing on the date such expenditures were made)
described in Section 705(a)(2)(B) of the Code (relating to expenditures which
are neither deductible nor properly chargeable to capital) and expenditures
which, pursuant to the Regulations under Section 704(b) of the Code, are
characterized as Section 705(a)(2)(B) expenditures.
5.2.6 The amount of any partner nonrecourse deductions as
defined in Regulation Section 1.704-2(i)(2) attributable to debt of the
Partnership for which a Partner bears the economic risk of loss, within the
meaning of Regulation Section 1.752-2(d)(3), shall be specially allocated to
such Partner.
5.2.7 To the extent an adjustment to the adjusted tax basis of
any Partnership asset pursuant to Section 732, 734 or 743 of the Code is
required to be taken into account in determining Capital Accounts in accordance
with Regulation Section 1.704-1(b)(2)(iv)(m), the amount of such adjustment to
the Capital Accounts shall be treated as an item of gain (if the adjustment
decreased such basis) and such gain or loss shall be specially allocated to the
Partners in a manner consistent with the manner in which their Capital Accounts
are required to be adjusted pursuant to such Section of the Regulations.
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5.3 Tax Elections. All elections required or permitted to be made by
the Partnership under any applicable tax law shall be made by the General
Partner in its sole discretion.
5.4 Interim Closing of Books. In the event of a transfer of a
Partnership Interest or a change in the Partners' Partnership Percentages, then
Profits and Losses, each item thereof and all tax items shall be allocated to
the Partners by taking into account their varying interests during the taxable
year of the transfer or change in accordance with Section 706(d) of the Code,
using the interim closing of the books method.
5.5 Certain Payments.
The payments specified in this Section 5.5 shall be made to the
specified Partner for services or the use of capital and shall be treated as
"guaranteed payments" within the purview of Section 707(c) of the Code for
Federal income tax purposes and as expenses of the Partnership for purposes of
determining partnership Profits and Losses.
Subject to the following provisions of this Section 5.5, the Limited
Partner shall be entitled to receive a distribution on February 25 and August 25
in each fiscal year (each a "distribution date") in respect of Limited Partner
Priority Capital unrecovered and outstanding during the period commencing on the
date immediately following the next preceding distribution date and ending on
such distribution date calculated at a rate per annum equal to 9.5%. The
Partnership shall pay such distribution in cash not later than the 30th day
following the applicable distribution date. If the Partnership shall be unable
to pay the entire amount of any such distribution in cash, the portion not paid
in cash shall be forgiven and shall not cumulate.
5.6 Distributions. Except as prohibited by contractual obligations
of the Partnership entered into in accordance with the terms and provisions of
this Agreement, the General Partner may distribute to the Partners the net cash
flow of the Partnership from time to time in amounts as determined by the
General Partner in accordance with Partnership Percentage Interests.
5.7 Priority Return of Limited Partner Priority Capital in Certain
Events. The Limited Partner shall be entitled to receive an amount equal to
Limited Partner Priority Capital upon any liquidation or winding-up of the
Partnership in priority to other distributions to the Partners.
ARTICLE 6
MANAGEMENT AND OPERATION OF BUSINESS
6.1 General Partner. The management and control of the business,
operations and activities of the Partnership shall be vested in and conducted by
the General Partner which shall be responsible for supervising the activities of
the Partnership's officers, employees and agents. Except as otherwise provided
expressly in this Agreement, the General Partner shall have full authority in
the name and on behalf of the Partnership to do all things deemed necessary or
desirable by it in the conduct of the business of the Partnership, including,
without limitation, the right to enter into and perform contracts of all kinds,
to bring and defend actions at law or in equity, to buy, own, manage, sell,
lease or otherwise acquire or dispose of Partnership assets, to pay all expenses
incurred by or on behalf of the Partnership, to borrow money and to grant
mortgages and security interests in Partnership property and to cause the
Partnership to enter into partnerships, joint ventures and similar arrangements.
The General Partner may delegate matters within the authority of the General
Partner hereunder to a third party, acting as agent for the General Partner,
pursuant to a management or similar agreement.
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6.2 Compensation and Reimbursement of Partners.
6.2.1 Compensation of Partners. No Partner shall be entitled
to separate compensation for services as Partner.
6.2.2 Reimbursement of Expenses. The Partners shall be
reimbursed by the Partnership for all expenses, disbursements, and advances
incurred or made in good faith to third parties for or on behalf of the
Partnership.
ARTICLE 7
OFFICERS
7.1 Officers of the Partnership.
7.1.1 Enumeration. The Partnership shall have a Chief
Executive Officer, a Chief Operating Officer, a Chief Financial Officer, a
Secretary and such other officers, if any, as the General Partner from time to
time may in its discretion elect or appoint. The Partnership may also have such
agents, if any, as the General Partner from time to time may in its discretion
choose.
7.1.2 Duties and Powers. Subject to law and to the other
provisions of this Agreement, each officer shall have such duties and powers as
are commonly incident to his or her office.
7.1.3 Tenure. Each officer and agent shall retain his or her
authority at the pleasure of the General Partner.
7.2 Resignations and Removals.
7.2.1 Resignations. Any officer may resign by delivering his
or her resignation in writing to the General Partner. Such resignations shall be
effective upon receipt unless specified to be effective at some other time, and
without in either case the necessity of its being accepted unless the
resignation shall so state.
7.2.2 Removal. The General Partner may at any time remove any
officer either with or without cause.
ARTICLE 8
BOOKS, RECORDS, ACCOUNTING AND REPORTS
8.1 Records and Accounting. The General Partner shall maintain a
standard, modern system of accounting in which full, true and correct entries
will be made of all dealings and transactions with respect to the Partnership's
business. All books of account and other records shall at all times be kept at
the principal office of the Partnership and shall be open to the inspection and
examination of the Partners or their representatives during reasonable hours.
All books and records of the Partnership shall be kept on an accrual basis of
accounting with the fiscal year as its annual accounting period which shall end
on the date of the final dissolution or termination of the Partnership. All
references in this Agreement to a "fiscal year" are to such an annual accounting
period. Any records maintained by the Partnership in the regular course of its
business, including the books of account, and records of Partnership proceedings
may be kept on, or be in the form of,
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punch cards, magnetic tape, photographs, micrographics or any other information
storage device, provided that the records so kept are convertible into clearly
legible written form within a reasonable period of time. The books of the
Partnership shall be maintained for financial reporting purposes according to
generally accepted accounting principles.
8.2 Fiscal Year. The fiscal year of the Partnership shall end on
December 31.
8.3 Annual and Periodic Reports.
8.3.1 Annual Statement; Annual Budget. The General Partner
shall, as soon as practicable, but in no event later than 90 days after the
close of each fiscal year, cause to be furnished to each Partner the combined
balance sheet of the Partnership and its combined subsidiaries as at the end of
such fiscal year and the combined statements of profit and loss, partners'
capital and cash flow for such year (all in reasonable detail), such combined
statements to be accompanied by reports or certificates of Ernst & Young, LLP,
auditors of the Partners and its consolidated subsidiaries, or other independent
certified public accountants of recognized national standing selected by the
General Partner.
8.3.2 Quarterly Reports. The General Partner shall, as soon as
available and, in any event, within 45 days after the end of each of the first
three fiscal quarters of the Partnership, furnish to each Partner the internally
prepared unaudited combined balance sheet of the Partnership and its combined
subsidiaries as of the end of such quarter and the combined statements of profit
and loss, partners' capital and cash flow for such quarter and for the portion
of the fiscal year then ending (all in reasonable detail), accompanied by a
certificate of the General Partner or of the chief financial officer of the
Partnership to the effect that, except for the lack of required footnotes, such
balance sheets and statements have been properly prepared in accordance with
generally accepted accounting principles and fairly present the financial
condition of the Partnership and its combined subsidiaries as of the date
thereof and the results of their operations for the period-covered thereby,
subject only to normal year-end audit adjustments.
8.3.3 Other Information. From time to time upon request of any
Partner, the General Partner shall furnish to such Partner such other
information regarding the business, affairs and condition, financial or
otherwise, of the Partnership and its subsidiaries as such Partner may
reasonably request. The authorized officers and representatives of any Partner
shall have the right during normal business hours to examine the books and
records of the Partnership and each of its subsidiaries, to make copies, notes
and abstracts therefrom, and to make an independent examination of its books and
records.
ARTICLE 9
INCOME TAX MATTERS
9.1 Preparation of Tax Returns. The General Partner shall arrange
for the preparation (at the Partnership's expense) and timely filing of all
returns of Partnership income, gains, deductions and losses necessary for
federal and state income tax purposes. The General Partner shall use its best
efforts to furnish to the Partners within 60 days and in any event shall furnish
within 90 days of the close of the taxable year the tax information reasonably
required for federal and state income tax reporting purposes. A copy of the
Partnership's income tax returns will be furnished to any Partner upon request.
The classification, realization and recognition of income, gain, losses and
deductions and other items shall be on the accrual method of accounting for
federal income tax purposes. The taxable year of the Partnership shall end on
December 31.
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9.2 Tax Controversies. Subject to the provisions hereof, the
Partners hereby designate the General Partner as the "Tax Matters Partner" (as
defined in Section 6231 of the Code), and the General Partner is authorized and
required to represent the Partnership (at the Partnership's expense) in
connection with all examinations of the Partnership's affairs by tax
authorities, including resulting administrative and judicial proceedings, and to
expend Partnership funds for professional services and costs associated
therewith.
9.3 Organizational Expenses. The Partnership shall elect to deduct
expenses, if any, incurred in organizing the Partnership ratably over a
sixty-month period as provided in Section 709 of the Code.
ARTICLE 10
TRANSFER OF INTERESTS
10.1 Transfer. The term "transfer," when used in this Article 10 with
respect to a Partnership Interest means a transaction by which the holder of a
Partnership Interest assigns the Partnership Interest or any part thereof to
another Person, and includes a sale, assignment, gift, pledge, encumbrance,
hypothecation, mortgage, exchange or any other disposition.
10.2 Transfers Generally. No Partnership Interests shall be
transferred, in whole or in part, provided, that, the foregoing shall not apply
to the pledges pursuant to the Pledge Agreements.
Any transfer or purported transfer of any Partnership Interest not made in
accordance with this Section 10.2 shall be null and void.
ARTICLE 11
[Intentionally omitted.]
ARTICLE 12
ADMISSION OF ADDITIONAL PARTNERS
12.1 Admission of Additional Partners. The General Partner may admit
additional Partners without the consent of the Partners. In admitting additional
Partners, the Partnership shall not be obligated to offer first to the existing
Partners the right to make additional capital contributions or subscriptions.
The Percentage Interest of each additional Partner shall be determined by the
General Partner.
12.2 Amendment of Agreement in Connection with the Admission of
Additional Partners. For the admission to the Partnership of any Partner, the
Partners shall take all steps necessary and appropriate to prepare an amendment
of this Agreement reflecting the same.
ARTICLE 13
TERMINATION AND WINDING-UP OF PARTNERSHIP
13.1 Termination. The Partners hereby waive their right of partition
and agree not to do anything that would terminate the Partnership prior to the
expiration of its term without the prior written consent of the other Partners.
No Partner may voluntarily withdraw from the Partnership
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without the prior written consent of all other Partners. Upon the withdrawal,
death, retirement or insanity of the General Partner, or any other event of
dissolution under the New Jersey Uniform Limited Partnership Law, the business
of the Partnership shall be wound up and terminated unless all remaining
Partners, within 90 days thereafter, agree in writing that the Partnership shall
be reconstituted and its business continued.
13.2 Winding-Up of the Partnership. Upon any winding up of the
Partnership, the following shall be accomplished:
13.2.1 The financial officers of the Partnership shall be
directed to prepare a balance sheet of the Partnership in accordance with
generally accepted accounting principles as of the date of dissolution, which
shall be reported upon by the Partnership's independent public accountants.
13.2.2 The assets of the Partnership shall be liquidated by the
Partners as promptly as possible, but in an orderly and businesslike manner so
as not to involve undue sacrifice.
13.2.3 The proceeds of sale of all or substantially all of the
property of the Partnership and all other assets of the Partnership to be
liquidated shall be applied and distributed as follows, and in the following
order of priority:
13.2.3.1 To the payment of debts and liabilities
of the Partnership and the expenses of liquidation not otherwise adequately
provided for; then
13.2.3.2 To the setting up of any reserves which
are reasonably necessary for any contingent liabilities or obligations of the
Partnership or of the Partners arising out of, or in connection with, the
Partnership; and then
13.2.3.3 The remaining proceeds, to the Partners
in proportion to and to the extent of their positive Capital Account balances
determined after giving effect to the allocations of Profits and Losses provided
for in Article 5 hereof.
13.2.3.4 The Partnership shall terminate when all
property and assets owned by the Partnership to be liquidated shall have been
disposed of, and the net sale proceeds, after payment of or provision for the
amounts specified in Sections 13.2.3.1 and 13.2.3.2, and any assets to be
distributed shall have been distributed to the Partners as provided herein.
ARTICLE 14
AMENDMENTS; ETC.
14.1 Amendments. The Partners may amend any provision of this
Agreement, and any provision of this Agreement may be waived, from time to time,
with a writing executed on behalf of each of the Partners.
14.2 Non-Waiver. Except as expressly provided herein, no delay on the
part of any Partner in exercising any right hereunder shall operate as a waiver
thereof; nor shall any waiver by any Partner of any right hereunder or of any
failure to perform or breach hereof by any other Partner constitute or be deemed
a waiver of any other right hereunder or of any other failure to perform or
breach hereof by the same or any other Partner, whether of a similar or
dissimilar nature thereof.
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ARTICLE 15
GENERAL PROVISIONS
15.1 Addresses and Notices. The address of each Partner for all
purposes initially shall be the address set forth in Exhibit A to this
Agreement. Any notice or communication required hereunder shall be in writing
and either delivered personally or by overnight courier service, or mailed first
class and registered, postage prepaid, to an officer of the addressee and shall
be deemed to be given when so delivered to, or if mailed when received at, such
initial address (or to such other address or addresses as such Person may
subsequently designate by notice given hereunder).
15.2 Titles and Captions. The table of contents to this Agreement and
all article or section titles or captions in this Agreement are for convenience
only. They shall not be deemed part of this Agreement and in no way define,
limit, extend or describe the scope or intent of any provisions hereof.
15.3 Pronouns and Plurals. Whenever the context may require, any
pronoun used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns, pronouns and verbs
shall include the plural and vice versa.
15.4 Further Action. The parties shall execute and deliver all
documents, provide all information and take or refrain from taking action as may
be necessary or appropriate to achieve the purposes of this Agreement.
15.5 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their heirs, executors, administrators,
successors, legal representatives and permitted assigns.
15.6 Integration. This Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings pertaining thereto, whether written or oral.
15.7 Waiver. No failure by any party to insist upon the strict
performance of any covenant, duty, agreement or condition of this Agreement or
to exercise any right or remedy consequent upon a breach thereof shall
constitute waiver of any such breach or any other covenant, duty, agreement or
condition.
15.8 Counterparts. This Agreement may be executed in counterparts,
all of which together shall constitute one agreement binding on all the parties,
notwithstanding that all the parties are not signatories to the original or the
same counterpart.
15.9 Applicable Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New Jersey
regardless of the laws that might otherwise govern under applicable principles
of conflict of laws thereof. Each party hereto hereby expressly and irrevocably
agrees and consents that any action, suit or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby may be
instituted and maintained in any state or federal court sitting in Atlantic
County, New Jersey or in any federal court sitting in the State of New Jersey or
in any state or federal court sitting in the Borough of Manhattan in New York,
New York and, by execution of this Agreement, each party hereto expressly waives
any objection that it
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may have now or hereafter to the venue or jurisdiction of any such action, suit
or proceeding and irrevocably submits to the jurisdiction of any such court in
any such action, suit or proceeding.
15.10 Invalidity of Provisions. If any provision of this Agreement is
or becomes invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein shall
not be affected thereby.
15.11 Indemnification; Exculpation.
15.11.1 Indemnification. The Partnership shall indemnify
and hold harmless each Partner, its Affiliates, any director of the General
Partner or an Affiliate of a director of the General Partner, any partner,
officer, director, employee, attorney or agent of a Partner, any Partner
Representative (as defined in the Third Amended and Restated Partnership
Agreement dated October 7, 1996) that served on Partnership's Board of Partner
Representatives prior to the date hereof and any Affiliate of such Persons (each
individually, an "Indemnitee") from and against any and all losses, claims,
demands, costs, damages, liabilities, joint and several, expenses of any nature
(including attorneys' fees and disbursements), judgments, fines, settlements and
other amounts arising from any and all claims, demands, actions, suits, or
proceedings, civil, criminal, administrative or investigative, in which the
Indemnitee may be involved, or threatened to be involved, as a party or
otherwise, arising out of or incidental to the business of the Partnership,
including without limitation liabilities under the Federal and state securities
laws, regardless of whether the Indemnitee continues to be a Partner, an
Affiliate of a Partner, a director of the General Partner or an Affiliate of a
director of the General Partner, or any partner, officer, director, employee,
attorney or agent of a Partner, a Partner Representative or an Affiliate of such
Persons at the time any such liability or expense is paid or incurred, but only
if such course of conduct does not constitute gross negligence or willful
misconduct; provided, however, that such indemnification or agreement to hold
harmless shall be recoverable only out of assets of the Partnership and not from
the Partners. The indemnification provided by this Section 15.11 shall be in
addition to any other rights to which an Indemnitee may be entitled under any
agreement, as a matter of law or equity, or otherwise, both as to action in the
Indemnitee's capacity as a Partner, an Affiliate of a Partner, a director of the
General Partner or an Affiliate of a director of the General Partner, or any
partner, officer, director, employee, attorney or agent of a Partner, a Partner
Representative or an Affiliate of such Persons and as to any action in another
capacity, and shall continue as to an Indemnitee who has ceased to serve in such
capacity and shall inure to the benefit of the heirs, successors, assigns and
administrators of the Indemnitee. No Indemnitee shall be denied indemnification
in whole or in part under this Section 15.11 by reason of the fact that the
Indemnitee had an interest in the transaction with respect to which the
indemnification applies if the transaction was fully disclosed to all Partners
who consented to such transaction.
15.11.2 Exculpation. No director of the General Partner
shall have any liability to the Partnership or any Partner for monetary damages
for any action taken, or any failure to take any action, as a director of the
General Partner, except liability for (a) any improper financial benefit
received as a director of the General Partner; (b) an intentional infliction of
harm on the Partnership or any Partner; (c) acts or omissions not in good faith
or which involve intentional misconduct; and (d) any knowing violation of law.
15.12 [Intentionally omitted].
15.13 Casino Control Commission Regulation. Notwithstanding anything
to the contrary in this Agreement:
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(i) This Agreement will be deemed to include all provisions
required by the Casino Control Act and to the extent that anything contained in
this Agreement is inconsistent with the Casino Control Act, the provisions of
the Casino Control Act shall govern. All provisions of the Casino Control Act,
to the extent required by law to be included in this Agreement, are incorporated
herein by reference as if fully restated in this Agreement.
(ii) If the continued holding of a Partnership Interest by
any Partner will disqualify the Partnership to continue as the owner and
operator of a casino licensed in the State of New Jersey under the provisions of
the Casino Control Act, such Partner shall enter into such escrow, trust or
similar arrangement as may be required by the Commission under the
circumstances. It is the intent of this Section 15.13 to set forth procedures to
permit the Partnership to continue, on an uninterrupted basis, as the owner and
operator of a casino licensed under the provisions of the Casino Control Act.
(iii) (a) All transfers (as defined by the Casino Control Act)
of securities (as defined by the Casino Control Act), shares and other interests
in the Partnership shall be subject to the right of prior approval by the
Commission; and (b) the Partnership shall have the absolute right to repurchase
at the market price or purchase price, whichever is the lesser, any security,
share or other interest in the Partnership in the event that the Commission
disapproves a transfer in accordance with the provisions of the Casino Control
Act.
(iv) Each Partner hereby agrees to cooperate reasonably and
promptly with the others in obtaining any and all licenses, permits or approvals
required by any governmental authority or deemed expedient by the Partners in
connection with the Casino Control Act.
(v) Each Partner shall have the right to offer to acquire
any Partnership Interest required to be disposed of pursuant to this Section
15.13 on the same basis as other potential purchasers, subject to the Casino
Control Act.
15.14 Survival of Rights, Duties and Obligations. Termination of the
Partnership for any cause shall not release any party from any liability which
at the time of termination had already accrued to any other party or which
thereafter may accrue in respect of any act or omission prior to such
termination.
15.15 Certificate of Interest.
15.15.1 Form of Certificate of Interest. The interest of
each Partner in the Partnership shall be evidenced by a Certificate of Interest
in the form attached as Annex 15.15 hereto (each a "Certificate of Interest"). A
certificate transfer ledger (the "Certificate Transfer Ledger") recording the
issue and transfer of Certificates of Interest in the Partnership shall be
maintained at the principal office of the Partnership. Each such Certificate of
Interest shall be serially numbered and shall be issued by, or at the written
direction of, each of the Partners to the lawful holder of an interest in the
Partnership, upon payment by the issue of the full amount of the capital
contributions then due with respect to its interest in the Partnership
represented by such Certificate of Interest. All Certificates of Interest shall
be executed in the name of the Partnership by each of the Partners. Each
Certificate of Interest shall state on its face the name of the registered
holder thereof and the then interest in the Partnership held by the issue; and
shall bear, on both sides thereof, a statement of the restrictions imposed by
Section 105 of the Casino Control Act.
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15.15.2 Certificate of Interest. The interests of the
General Partner and the Limited Partner in the Partnership shall constitute a
security governed by Article 8 of the Uniform Commercial Code then in effect in
the State of New Jersey.
15.15.3 Transfers of Certificates of Interest.
Certificates of Interest in the Partnership may be transferred by the lawful
holders thereof only in connection with the pledge or transfer of all or part of
the interest of such holder in the Partnership, and only in accordance with the
provisions of this Agreement. All such transfers shall be effected by duly
executed and acknowledged instruments of assignment, each of which shall be duly
recorded on the Certificate Transfer Ledger. No effect shall be given to any
purported assignment of a Certificate of Interest, or transfer of the interest
in the Partnership evidenced thereby, unless such assignment and transfer shall
be in compliance with the terms and provisions of this Agreement, and any
attempted assignment or transfer in contravention hereof shall be ineffectual.
15.15.4 Lost, Stolen, Destroyed or Mutilated
Certificates of Interest. In the event that a Certificate of Interest shall be
lost, stolen, destroyed or mutilated, the Partnership may cause a replacement
Certificate of Interest to be issued upon such terms and conditions as shall be
fixed by the General Partner, including, without limitation, provision for
indemnity and the posting of a bond or other adequate security as security
therefor. No replacement Certificate of Interest shall be issued to any person
unless such person has surrendered the Certificate of Interest to be replaced,
or has complied with the terms of this Section 15.15.
15.15.5 Inspection of Certificate Transfer Ledger. The
Certificate Transfer Ledger containing the names and addresses of all Partners
and the interest of each Partner in the Partnership shall be open to the
inspection of the Partners at the principal office of the Partnership during
usual business hours upon request of any Partner. Such Certificate Transfer
Ledger shall, in addition, be available for inspection by the Casino Control
Commission or the Division of Gaming Enforcement of the State of New Jersey and
each of their respective authorized agents at all reasonable times without
notice.
****Signature Page Follows****
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IN WITNESS WHEREOF, this Agreement has been executed as of the 25th day
of March, 2003.
GENERAL PARTNER:
▇▇▇▇▇ ▇▇▇▇▇▇, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
NEW LIMITED PARTNER:
▇▇▇▇▇ CASINO HOLDINGS, LLC
By: ▇▇▇▇▇ HOTELS & CASINO RESORTS
HOLDINGS, L.P.
By: ▇▇▇▇▇ HOTELS & CASINO RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
AS WITHDRAWING LIMITED PARTNER:
▇▇▇▇▇ HOTELS & CASINO RESORTS
HOLDINGS, L.P.
By: ▇▇▇▇▇ HOTELS & CASINO RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
EXHIBIT A
PARTNER: ADDRESSES:
--------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇, Inc. ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
▇▇▇▇▇ Casino Holdings, LLC ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
--------------------------------------------------------------------------------
ANNEX 15.15
FORM OF CERTIFICATE OF INTEREST
See Attached.
ACKNOWLEDGMENT
STATE OF NEW YORK :
: ss.
COUNTY OF NEW YORK :
BE IT REMEMBERED that on March 25, 2003, before me, the subscriber,
personally appeared ▇▇▇▇ ▇. ▇▇▇▇▇, the Vice President of ▇▇▇▇▇ ▇▇▇▇▇▇, Inc., a
New Jersey corporation, who, I am satisfied, is the person who has signed the
within instrument on behalf of such corporation, and I having first made known
to him the contents thereof he thereupon acknowledged that he signed and
delivered the said instrument in his capacity as such officer aforesaid, and
that the within instrument is the voluntary act and deed of said corporation,
made by virtue of authority from its Board of Directors.
------------------------------
Notary Public
ACKNOWLEDGMENT
STATE OF NEW YORK :
: ss.
COUNTY OF NEW YORK :
BE IT REMEMBERED that on March 25, 2003, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Executive Vice President of ▇▇▇▇▇
Hotels & Casino Resorts, Inc., general partner of ▇▇▇▇▇ Hotels & Casino Resorts
Holdings, L.P., the sole member of ▇▇▇▇▇ Casino Holdings, LLC, a Delaware
limited liability company, who, I am satisfied, is the person who has signed the
within instrument on behalf of such limited liability company, and I having
first made known to him the contents thereof he thereupon acknowledged that he
signed and delivered the said instrument in his capacity as such officer
aforesaid, and that the within instrument is the voluntary act and deed of said
limited liability company.
------------------------------
Notary Public
ACKNOWLEDGMENT
STATE OF NEW YORK :
: ss.
COUNTY OF NEW YORK :
BE IT REMEMBERED that on March 25, 2003, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Executive Vice President of ▇▇▇▇▇
Hotels & Casino Resorts, Inc., general partner of ▇▇▇▇▇ Hotels & Casino Resorts
Holdings, L.P., who, I am satisfied, is the person who has signed the within
instrument on behalf of such limited liability company, and I having first made
known to him the contents thereof he thereupon acknowledged that he signed and
delivered the said instrument in his capacity as such officer aforesaid, and
that the within instrument is the voluntary act and deed of said limited
liability company.
------------------------------
Notary Public