EXHIBIT I.II
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THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇ HOTELS & CASINO RESORTS HOLDINGS, L.P.
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS .................................................... 2
Section 1.1. DEFINITIONS ................................................ 2
Section 1.2. ACCOUNTING TERMS AND DETERMINATIONS.........................17
ARTICLE II. CONTINUATION OF PARTNERSHIP; BUSINESS OF PARTNERSHIP...........17
Section 2.1. CONTINUATION ...............................................17
Section 2.2. NAME .......................................................17
Section 2.3. CHARACTER OF THE BUSINESS...................................18
Section 2.4. LOCATION OF PRINCIPAL PLACE OF BUSINESS.....................18
Section 2.5. REGISTERED AGENT AND REGISTERED OFFICE......................18
ARTICLE III. TERM .........................................................18
Section 3.1. COMMENCEMENT ...............................................18
Section 3.2. TERMINATION ................................................18
ARTICLE IV. CAPITAL CONTRIBUTIONS..........................................18
Section 4.1. CAPITAL CONTRIBUTIONS; PARTNERSHIP INTERESTS
AND PERCENTAGE INTERESTS OF THE PARTNERS...................18
Section 4.2. ISSUANCE OF ADDITIONAL PARTNERSHIP INTERESTS
AND SHARES.................................................20
Section 4.3. ADJUSTMENT OF PARTNERSHIP INTERESTS.........................22
Section 4.4. NO INTEREST ON OR RETURN OF CAPITAL CONTRIBUTION............22
Section 4.5. ADJUSTMENT FOR CASTLE ACQUISITION...........................22
ARTICLE V. ALLOCATIONS AND OTHER TAX AND ACCOUNTING MATTERS................22
Section 5.1. ALLOCATIONS OF NET INCOME AND NET LOSS......................22
Section 5.2. SPECIAL ALLOCATIONS.........................................23
Section 5.3. TAX ALLOCATIONS.............................................25
Section 5.4. BOOKS OF ACCOUNT............................................27
Section 5.5. TAX MATTERS PARTNER.........................................27
Section 5.6. TAX ELECTIONS AND RETURNS...................................28
Section 5.7. TAX CERTIFICATIONS..........................................29
ARTICLE VI. DISTRIBUTIONS..................................................30
Section 6.1. GENERAL.....................................................30
Section 6.2. DISTRIBUTIONS FOR TAXES.....................................30
Section 6.3. OTHER DISTRIBUTIONS.........................................31
Section 6.4. WITHHOLDING PAYMENTS REQUIRED BY LAW........................31
Section 6.5. NON-RECOURSE................................................32
ARTICLE VII. RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER........33
Section 7.1. POWERS AND DUTIES OF GENERAL PARTNER........................33
Section 7.2. MAJOR DECISIONS.............................................36
Section 7.3. REIMBURSEMENT OF THE GENERAL PARTNER........................36
Section 7.4. OUTSIDE ACTIVITIES OF THE GENERAL PARTNER...................37
Section 7.5. CONTRACTS WITH AFFILIATES...................................37
Section 7.6. TITLE TO PARTNERSHIP ASSETS.................................38
Section 7.7. RELIANCE BY THIRD PARTIES...................................38
Section 7.8. LIABILITY OF THE GENERAL PARTNER............................39
Section 7.9. OFFICERS OF THE PARTNERSHIP.................................39
Section 7.10. COVENANTS OF THCR REGARDING THE ISSUANCE OF NEW
SECURITIES..................................................39
Section 7.11. OTHER MATTERS CONCERNING THE GENERAL PARTNER................40
ARTICLE VIII. DISSOLUTION, LIQUIDATION AND WINDING-UP......................41
Section 8.1. ACCOUNTING..................................................41
Section 8.2. DISTRIBUTION ON DISSOLUTION.................................41
Section 8.3. TIMING REQUIREMENTS.........................................41
Section 8.4. DOCUMENTATION OF LIQUIDATION................................42
Section 8.5. DISSOLUTION.................................................42
Section 8.6. CONTINUATION OF THE PARTNERSHIP.............................43
ARTICLE IX. TRANSFER AND REDEMPTION OF PARTNERSHIP INTERESTS; CERTAIN
CONSENT RIGHTS................................................43
Section 9.1. GENERAL PARTNER TRANSFER....................................43
Section 9.2. TRANSFERS BY LIMITED PARTNERS...............................44
Section 9.3. CERTAIN ADDITIONAL RESTRICTIONS ON TRANSFER.................47
Section 9.4. EFFECTIVE DATES OF TRANSFERS................................47
Section 9.5. TRANSFER....................................................48
Section 9.6. REDEMPTION OF PARTNERSHIP INTEREST..........................49
Section 9.7. CERTAIN CONSENT RIGHTS......................................49
ARTICLE X. RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS..................49
Section 10.1. NO PARTICIPATION IN MANAGEMENT.............................49
Section 10.2. BANKRUPTCY OF A LIMITED PARTNER............................50
Section 10.3. NO WITHDRAWAL..............................................50
Section 10.4. CONFLICTS..................................................50
Section 10.5. PROVISION OF INFORMATION...................................51
Section 10.6. LIMITED PARTNER REPRESENTATIVE.............................52
Section 10.7. POWER OF ATTORNEY..........................................52
ARTICLE XI. INDEMNIFICATION; EXCULPATION...................................54
Section 11.1. INDEMNIFICATION............................................54
Section 11.2. INDEMNIFICATION PROCEDURES.................................55
Section 11.3. EXCULPATION................................................56
Section 11.4. NO LIABILITY OF DIRECTORS AND OTHERS.......................56
ARTICLE XII. RIGHTS UNDER THE EXCHANGE RIGHTS AGREEMENT....................57
Section 12.1. TRANSFER PURSUANT TO EXCHANGE RIGHTS AGREEMENT.............57
Section 12.2. SUBJECT TO THE EXCHANGE RIGHTS AGREEMENT...................57
ARTICLE XIII. AMENDMENT OF PARTNERSHIP AGREEMENT, MEETINGS.................57
Section 13.1. AMENDMENTS.................................................57
Section 13.2. MEETINGS OF THE PARTNERS; NOTICES TO PARTNERS..............59
(ii)
ARTICLE XIV. CERTIFICATE OF INTEREST.......................................60
Section 14.1. FORM OF CERTIFICATE OF INTEREST............................60
Section 14.2. TRANSFERS OF CERTIFICATES OF INTEREST......................60
Section 14.3. LOST, STOLEN, DESTROYED OR MUTILATED CERTIFICATES
OF INTEREST...............................................61
Section 14.4. INSPECTION OF CERTIFICATE TRANSFER LEDGER..................61
ARTICLE XV. REGULATORY REQUIREMENTS........................................61
Section 15.1. APPLICABLE REGULATORY AUTHORITY AND CCC REGULATION.........61
Section 15.2. ADDITIONAL APPLICABLE REGULATORY AUTHORITY REGULATION......62
Section 15.3. DISQUALIFIED HOLDERS.......................................62
ARTICLE XVI. GENERAL PROVISIONS............................................63
Section 16.1. NOTICES....................................................63
Section 16.2. CONTROLLING LAW............................................64
Section 16.3. NO THIRD PARTY BENEFICIARIES...............................64
Section 16.4. EXECUTION IN COUNTERPARTS..................................64
Section 16.5. PROVISIONS SEPARABLE.......................................64
Section 16.6. ENTIRE AGREEMENT...........................................64
Section 16.7. PARAGRAPH HEADINGS.........................................65
Section 16.8. GENDER, ETC................................................65
Section 16.9. NUMBER OF DAYS.............................................65
Section 16.10. PARTNERS NOT AGENTS.......................................65
Section 16.11. ASSURANCES................................................65
Section 16.12. SUCCESSORS AND ASSIGNS....................................65
Section 16.13. WAIVER....................................................65
SCHEDULES
SCHEDULE I -- Aggregate Capital Contributions
SCHEDULE II -- Capital Contributions Prior to April 17, 1996
SCHEDULE III -- Capital Contributions in connection with the Taj Mahal Merger
Transaction
SCHEDULE IV -- Capital Contributions in connection with the Castle Acquisition
EXHIBITS
EXHIBIT A -- Form of Second Amended and Restated Exchange and Registration
Rights Agreement
(iii)
THE LIMITED PARTNERSHIP INTERESTS REFERRED TO IN THIS AGREEMENT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR
ANY STATE SECURITIES LAWS. REFERENCE IS MADE TO ARTICLE IX OF THIS
AGREEMENT FOR PROVISIONS RELATING TO VARIOUS RESTRICTIONS ON THE SALE
OR OTHER TRANSFER OF THESE INTERESTS.
THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
▇▇▇▇▇ HOTELS & CASINO RESORTS HOLDINGS, L.P.
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is made
and entered into this 7th day of October, 1996, by and among ▇▇▇▇▇ Hotels &
Casino Resorts, Inc., a Delaware corporation ("THCR"), ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ("▇▇▇▇▇"
or the "Initial Limited Partner"), THCR/LP Corporation, a New Jersey corporation
("THCR/LP"), ▇▇▇▇▇ Casinos, Inc., a New Jersey corporation ("TCI"), ▇▇▇▇▇
Casinos II, Inc., a Delaware Corporation, formerly known as TC/GP, Inc.
("TCI-II"), and the Persons who may become party hereto from time to time
pursuant to the terms of this Agreement.
W I T N E S S E T H:
WHEREAS, THCR and ▇▇▇▇▇ formed the Partnership on March 28, 1995 by the
filing of a Certificate of Limited Partnership with the Secretary of State of
the State of Delaware;
WHEREAS, THCR and ▇▇▇▇▇ entered into an Amended and Restated Agreement of
Limited Partnership on June 12, 1995;
WHEREAS, in connection with the acquisition by the Partnership of ▇▇▇▇▇ ▇▇▇
Mahal Associates ("Taj Associates") and the other transactions related thereto
(the "Taj Mahal Merger Transaction"), THCR, ▇▇▇▇▇, THCR/LP and TCI entered into
a Second Amended and Restated Agreement of Limited Partnership, dated as of
April 17, 1996, which provided for the capital contributions as set forth on
Schedule III hereto and the admission of THCR/LP and TCI as Limited Partners of
the Partnership;
WHEREAS, effective as of the date hereof, the General Partner and ▇▇▇▇▇
desire to cause certain capital contributions to the Partnership, as set forth
on Schedule IV hereto, in connection with the acquisition (the "Castle
Acquisition") by the Partnership of the equity interests of Trump's Castle
Associates, L.P., a New Jersey limited partnership ("Castle Associates");
WHEREAS, in exchange for its capital contribution as set forth in Schedule
IV, effective as of the date hereof, TCI-II is being admitted to the Partnership
as a Limited Partner; and
WHEREAS, the parties hereto desire to continue the Partnership as a limited
partnership under the Delaware Revised Uniform Limited Partnership Act in
accordance with the provisions of this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I.
DEFINITIONS
Section 1.1. DEFINITIONS. Except as otherwise herein expressly provided,
the following terms and phrases shall have the meanings as set forth below:
"ACCOUNTANTS" shall mean the national firm or firms of independent
certified public accountants selected by the General Partner on behalf of the
Partnership to audit the books and records of the Partnership and to prepare
statements and reports in connection therewith, which initially shall be ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP.
"ACT" shall mean the Delaware Revised Uniform Limited Partnership Act, as
the same may hereafter be amended from time to time.
"ACTION" shall mean any and all claims, demands, actions, suits or
proceedings, civil, criminal, administrative or investigative, that give rise to
a claim for indemnification pursuant to Article XI hereof.
"ADDITIONAL DISTRIBUTIONS" shall mean distributions by the Partnership
pursuant to Section 6.3 hereof.
"ADDITIONAL PARTNERSHIP INTERESTS" shall have the meaning set forth in
Section 4.2(a).
"ADJUSTED CAPITAL ACCOUNT DEFICIT" shall mean, with respect to any Limited
Partner, the deficit balance, if any, in such Partner's Capital Account as of
the end of any relevant fiscal year and after giving effect to the following
adjustments:
(a) credit to such Capital Account any amounts which such Partner is
obligated or treated as obligated
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to restore with respect to any deficit balance in such Capital Account
pursuant to Section 1.704-1(b)(2)(ii)(c) of the Regulations, or is deemed
to be obligated to restore with respect to any deficit balance pursuant to
the penultimate sentences of Sections 1.704-2(g)(1) and 1.704-2(i)(5) of
the Regulations; and
(b) debit to such Capital Account the items described in Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6) of the Regulations.
The foregoing definition of Adjusted Capital Account Deficit is intended to
comply with the requirements of the alternate test for economic effect
contained in Section 1.704-1(b)(2)(ii)(d) of the Regulations and shall be
interpreted consistently therewith.
"ADJUSTMENT DATE" shall have the meaning set forth in Section 4.3 hereof.
"AFFILIATE" shall mean, with respect to any specified Person, any other
Person directly or indirectly controlling, controlled by, or under common
control with, such specified Person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, means the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by agreement or otherwise.
"AGREEMENT" shall mean this Third Amended and Restated Agreement of Limited
Partnership, as originally executed and as amended, modified, supplemented or
restated from time to time, as the context requires.
"APPLICABLE REGULATORY AUTHORITY" shall mean any governmental or
quasi-governmental authority with applicable jurisdiction over the business,
affairs, securities, or properties of the Partnership or any of its
Subsidiaries, including, without limitation, the CCC, the IGC, and the MGC.
"AUDITED FINANCIAL STATEMENTS" shall mean financial statements (balance
sheet, statement of income, statement of partners' equity and statement of cash
flows) prepared in accordance with GAAP and accompanied by an independent
auditor's report containing an opinion thereon.
"BANKRUPTCY" shall mean, with respect to any Person, (i) the commencement
by such Person of any petition, case or proceeding seeking relief under any
provision or chapter of the federal bankruptcy code or any other federal or
state law relating to insolvency, bankruptcy or reorganization, (ii) an
adjudication that such Person is insolvent or bankrupt, (iii) the entry of an
order for relief under the federal bankruptcy code with respect to such Person,
(iv) the filing of any such petition
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or the commencement of any such case or proceeding against such Person, unless
such petition and the case or proceeding initiated thereby are dismissed within
ninety (90) days from the date of such filing or (v) the filing of an answer by
such Person admitting the allegations of any such petition.
"BENEFICIAL OWNER" shall mean any Person who, singly or together with any
of such Person's Affiliates, directly or indirectly, has "beneficial ownership"
of Partnership Interests (as determined pursuant to Rule 13d-3 of the Securities
Exchange Act of 1934, as amended).
"BUSINESS DAY" shall mean any day that is not a Saturday, Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
"CAPITAL ACCOUNT" shall mean, with respect to any Partner, the separate
"book" account which the Partnership shall establish and maintain for such
Partner in accordance with Section 704(b) of the Code and the Regulations
promulgated thereunder. In the event that a Partnership Interest is transferred
in accordance with the terms of this Agreement, the Capital Account, at the time
of the transfer, of the transferor attributable to the transferred interest
shall carry over to the transferee.
"CAPITAL CONTRIBUTION" shall mean, with respect to any Partner, the amount
of money and the initial Gross Asset Value of any Contributed Property (net of
liabilities to which such property is subject) set forth on Schedule I, as such
exhibit will be amended by the General Partner from time to time to reflect the
amount of money and the Gross Asset Value of any Contributed Property received
by the Partnership pursuant to any additional Capital Contribution or deemed
contributed pursuant to Sections 4.2 or 7.10.
"CASINO CONTROL ACT" shall mean the New Jersey Casino Control Act, N.J.S.A.
5:12-1 ET SEQ.
"CASTLE ACQUISITION" shall have the meaning set forth in the Recitals to
this Agreement.
"CASTLE ACQUISITION AGREEMENT" shall mean the Agreement, dated as of June
24, 1996, by and among THCR, the Partnership, TCI-II, TCHI and ▇▇▇▇▇, as amended
as of August 27, 1996.
"CASTLE ASSOCIATES" shall have the meaning set forth in the Recitals to
this Agreement.
"CCC" shall mean the New Jersey Casino Control Commission and any successor
agency.
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"CERTIFICATE" shall mean the Certificate of Limited Partnership
establishing the Partnership, as filed with the office of the Delaware Secretary
of State on March 28, 1995, as it may be amended from time to time in accordance
with the terms of this Agreement and the Act.
"CLASS B STOCK" shall mean Class B Common Stock, par value $.01 per share,
of THCR, and any class of securities into which the Class B Stock has been
converted, other than Common Stock.
"CODE" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"COMMON STOCK" shall mean the common stock, par value $.01 per share, of
THCR, other than the Class B Stock.
"CONSENT OF THE LIMITED PARTNERS" shall mean the written consent of a
Majority-In-Interest of the Limited Partners given in accordance with Section
13.2 hereof, which consent shall be obtained prior to the taking of any action
for which it is required by this Agreement and may be given or withheld by a
Majority-In-Interest of the Limited Partners, unless otherwise expressly
provided herein, in their sole and absolute discretion.
"CONTRIBUTED PROPERTY" shall mean any property or asset, in such form as
may be permitted by the Act, but excluding cash, contributed or deemed
contributed to the Partnership with respect to the Partnership Interest held by
each Partner.
"CURRENT MARKET PRICE" shall mean, with respect to any security on any
Valuation Date specified herein, the arithmetic mean over a period of twenty
consecutive trading days ending the second trading day prior to such date (a) if
the security is listed or admitted to trading on any national securities
exchange, of the high and low sale price of the security or if no such sale
takes place on such date, the average of the highest closing bid and lowest
closing asked prices thereof on such date, in each case as officially reported
on all national securities exchanges on which the security is then listed or
admitted to trading, (b) if the security is not then listed or admitted to
trading on any national securities exchange, the highest closing price thereof
on such date in the over-the-counter market as shown by the NASDAQ National
Market System, or (c) if the security is not then quoted in such system, as
published by the National Quotation Bureau, Incorporated or any similar
successor organization, and in any case as reported by any member firm of the
New York Stock Exchange selected by the General Partner. If the security is not
then listed or admitted to trading on any national securities exchange and if no
closing bid and ask prices therefor are then quoted or published in the
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over-the-counter market, "Current Market Price" shall mean the value of the
security as of a date which is 15 days preceding the date as of which the
determination is to be made, as determined in good faith by an investment
banking firm of national reputation (which firm may have provided other services
to the General Partner or the Partnership) selected by the Board of Directors of
the General Partner, and, in connection with a Capital Contribution by the
Initial Limited Partner or his Permitted Holders, which selection shall be
approved by a majority of the Special Committee. Notwithstanding the foregoing,
if a determination of Current Market Price is being made in connection with an
arms length underwritten public offering, such value shall be the public
offering price of the Common Stock in such offering.
"DAMAGES" shall have the meaning set forth in Section 11.1(a) hereof.
"DEEMED PARTNERSHIP INTEREST VALUE" as of any date, shall mean with respect
to a Partner, the Deemed Value of the Partnership (as of the day preceding such
date) multiplied by such Partner's Percentage Interest (expressed as a decimal
carried to four places, e.g., .1234 or 12.34%).
"DEEMED VALUE OF THE PARTNERSHIP" shall mean, as of the Valuation Date, (a)
the sum of (i) the product of (A) the Current Market Price per share of Common
Stock, (B) the number of shares of outstanding Common Stock, and (C) a fraction,
the numerator of which is one, and the denominator of which is the Percentage
Interest (expressed as a decimal) of the General Partner, (ii) the aggregate
Fair Market Value of the outstanding capital stock of THCR, other than the
Common Stock or the Class B Stock, and (iii) the Fair Market Value of the
outstanding Indebtedness of THCR appearing on the balance sheet of THCR,
prepared in accordance with GAAP, as of the Valuation Date, which Indebtedness
(the "Included Indebtedness") shall exclude (A) the Indebtedness of the
Partnership and its consolidated and combined Subsidiaries, appearing on the
balance sheet of the Partnership and its consolidated and combined Subsidiaries,
prepared in accordance with GAAP as of the Valuation Date, and (B) any other
Indebtedness appearing on the balance sheet of THCR, prepared in accordance with
GAAP, as of the Valuation Date, the proceeds of which were not used to purchase
additional Partnership Interests, reduced by (b) the amount, if any, by which
the consolidated net worth of the General Partner exceeds its pro rata share of
the consolidated net worth of the Partnership; PROVIDED, HOWEVER, that if the
General Partner shall have material amounts of liabilities (other than Included
Indebtedness) or material assets other than cash and Partnership Interests, the
General Partner may seek the advice of an investment banking firm of national
reputation as to the appropriate modification of the Deemed Value of the
Partnership formula set forth herein to take into account such liabilities or
assets.
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"DEPRECIATION" shall mean, with respect to any asset of the Partnership for
any fiscal year or other period, the depreciation or amortization, as the case
may be, allowed or allowable for federal income tax purposes in respect of such
asset for such fiscal year or other period; PROVIDED, HOWEVER, that if there is
a difference between the Gross Asset Value and the adjusted tax basis of such
asset, Depreciation shall mean "book depreciation, depletion or amortization" as
determined under Section 1.704-1(b)(2)(iv)(g)(3) of the Regulations.
"DISABLING EVENT" shall have the meaning set forth in Section 8.6 hereof.
"DISQUALIFIED HOLDER" shall mean any Beneficial Owner of Partnership
Interests or Equity Interests of the General Partner, the Partnership or any of
its Subsidiaries (a) who is found to be disqualified by any Applicable
Regulatory Authority, or (b) whose holding of such Partnership Interests or
Equity Interests may result or, when taken together with the holding of such
Partnership Interests or Equity Interests by any other Beneficial Owner, may
result, in the judgment of the General Partner, in the inability to obtain, loss
or non-reinstatement of any license or franchise from any Applicable Regulatory
Authority sought or held by the Partnership or any Subsidiary to conduct any
portion of the business of the Partnership or any Subsidiary, which license or
franchise is conditioned upon some or all of the holders of Partnership
Interests and such Equity Interests meeting certain criteria.
"ENTITY" shall mean any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust, real
estate investment trust, association or other entity.
"EQUITY INTEREST" of any Person shall mean any shares, interests,
participations or other equivalents (however designated) of such Person in
equity.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time (or any corresponding provisions of succeeding laws).
"EXCHANGE RIGHTS AGREEMENT" shall mean the Second Amended and Restated
Exchange and Registration Rights Agreement, dated as of October 7, 1996,
substantially in the form of Exhibit A hereto, entered into by and among ▇▇▇▇▇,
TCI, TCI-II and THCR, providing certain rights to exchange Limited Partnership
Interests for Common Stock on the terms and conditions set forth therein, as the
same may be amended from time to time in accordance with the terms thereof.
"EXECUTIVE AGREEMENT" shall mean the ▇▇▇▇▇ Executive Agreement, by and
among ▇▇▇▇▇, THCR and the
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Partnership, dated as of June 12, 1995, as the same may be amended from time to
time in accordance with the terms thereof.
"FAIR MARKET VALUE" shall mean (i) in the case of any security, its Current
Market Price and (ii) in the case of any property or Indebtedness that is not a
security, the fair market value of such property or Indebtedness as determined
in good faith by a majority of the Board of Directors of the General Partner
and, in connection with a Capital Contribution by the Initial Limited Partner or
his Permitted Holders, by a majority of the Special Committee.
"FORECLOSURE SALE" shall mean any judicial sale or any sale of collateral
conducted by a pledgee in exercising its rights under the Uniform Commercial
Code.
"GENERAL PARTNER" shall mean THCR, its duly admitted successors and assigns
and any other Person who is a general partner of the Partnership at the time of
reference thereto.
"GENERAL PARTNER EXPENSES" shall mean all organization, formation,
administrative and operating costs and expenses of the General Partner,
including, but not limited to, (a) salaries paid to officers of the General
Partner, and insurance, accounting, legal, and other professional fees and
expenses incurred by the General Partner, (b) costs and expenses relating to the
organization, formation and continuity of existence of the Partnership and the
General Partner, including franchise taxes, fees and assessments associated
therewith, any and all costs, expenses or fees payable or reimbursable to, or in
respect of, any director or officer of the General Partner, (c) costs and
expenses relating to any offer or registration of securities by the General
Partner or the Partnership and all statements, reports, fees and expenses
incidental thereto, including Issuance Costs applicable to any such offer of
securities, (d) costs and expenses associated with compliance by the General
Partner with laws, rules and regulations promulgated by any Applicable
Regulatory Authority, including the SEC, and (e) any costs and expenses incurred
in connection with any matter for which the General Partner may seek
indemnification from the Partnership pursuant to the provisions of this
Agreement; PROVIDED, HOWEVER, that "General Partner Expenses" shall not include,
(i) any taxes taken into account in calculating Tax Amounts, and (ii) any
administrative and operating costs and expenses of the General Partner to the
extent arising out of any Outside Business Activities.
"GROSS ASSET VALUE" shall mean, with respect to any asset of the
Partnership, such asset's adjusted basis for federal income tax purposes, except
as follows:
(a) the initial Gross Asset Value of any asset contributed by a
Partner to the Partnership shall be
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(i) in the case of any asset described on attached Schedule I, the gross
fair market value ascribed thereto on such Schedule and (ii) in the case of
any other asset hereafter contributed by a Partner, the gross Fair Market
Value of such asset at the time of its contribution, which determination,
in the case of the Initial Limited Partner and his Permitted Holders, shall
be made by a majority of the Special Committee;
(b) the Gross Asset Values of all Partnership assets shall be adjusted
to equal their respective gross Fair Market Values:
(i) immediately prior to a Capital Contribution (other than a de
minimis Capital Contribution) to the Partnership by a new or existing
Partner as consideration for a Partnership Interest;
(ii) immediately prior to the distribution by the Partnership to
a Partner of more than a de minimis amount of Partnership property as
consideration for the redemption of a Partnership Interest;
(iii) immediately prior to the liquidation of the Partnership
within the meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations;
and
(iv) upon any other event as to which the General Partner
reasonably determines that an adjustment is necessary or appropriate
to reflect the relative economic interests of the Partners;
(c) the Gross Asset Values of Partnership assets distributed to any
Partner shall be the gross Fair Market Values of such assets as of the date
of distribution; and
(d) the Gross Asset Values of Partnership assets shall be increased
(or decreased) to reflect any adjustments to the adjusted basis of such
assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the
extent that such adjustments are taken into account in determining Capital
Accounts pursuant to Section 1.704-1(b)(2)(iv)(m) of the Regulations;
PROVIDED, HOWEVER, that Gross Asset Values shall not be adjusted pursuant
to this paragraph to the extent that the General Partner reasonably
determines that an adjustment pursuant to paragraph (b) above is necessary
or appropriate in connection with a transaction that would otherwise result
in an adjustment pursuant to this paragraph (d).
At all times, Gross Asset Values shall be adjusted by any Depreciation taken
into account with respect to the Partnership's
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assets for purposes of computing Net Income and Net Loss. Any adjustment to the
Gross Asset Values of Partnership property shall require an adjustment to the
Partners' Capital Accounts; as for the manner in which such adjustments are
allocated to the Capital Accounts, see clause (c) of the definition of Net
Income and Net Loss in the case of adjustment by Depreciation, and clause (d) of
said definition in all other cases.
"IGC" shall mean the Indiana Gaming Commission and any successor agency.
"INDEBTEDNESS" shall mean any obligation, whether or not contingent, (i) in
respect of borrowed money or evidenced by bonds, notes, debentures or similar
instruments, (ii) representing the balance deferred and unpaid of the purchase
price of any property (including pursuant to capital leases), except any such
balance that constitutes an accrued expense or a trade payable, if and to the
extent any of the foregoing indebtedness would appear as a liability upon a
balance sheet prepared on a consolidated basis in accordance with GAAP, (iii) to
the extent not otherwise included, obligations under interest rate exchange,
currency exchange, swaps, futures or similar agreements, and (iv) guaranties
(other than endorsements for collection or deposit in the ordinary course of
business), direct or indirect, in any manner (including, without limitation,
reimbursement agreements in respect of letters of credit), of all or any part of
any Indebtedness of any third party.
"INDEMNITEE" shall mean any Person made or threatened to be made a party to
a proceeding by reason of its status as a Partner or a trustee, director,
officer, employee, agent, stockholder or Liquidating Trustee of the Partnership,
a Partner or an Affiliate of a Partner.
"INDIANA RIVERBOAT" shall mean a riverboat or dockside gaming facility and
the ancillary structures and other facilities used in connection with the
operation thereof located in ▇▇▇▇▇▇▇▇▇▇ Harbor, Indiana.
"INDIANA RIVERBOAT ACT" shall mean the Indiana Riverboat Gambling Act, Ind.
Code ss. 4-33-1-1 ET SEQ.
"INITIAL LIMITED PARTNER" shall have the meaning set forth in the Preamble
to this Agreement.
"ISSUANCE COSTS" shall mean the underwriter's discount, placement fees,
commissions or other expenses relating to the issuance of New Securities by the
General Partner.
"LIEN" shall mean any liens, security interests, mortgages, deeds of trust,
pledges, options, escrows, collateral assignments, rights of first offer or
first refusal, preemptive rights and any other similar encumbrances of any
nature whatsoever.
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"LIMITED PARTNER REPRESENTATIVE" shall have the meaning set forth in
Section 10.6 hereof.
"LIMITED PARTNERS" shall mean the Initial Limited Partner, those Persons
listed under the heading "Limited Partners" on the signature page hereto in
their respective capacities as limited partners of the Partnership, their
permitted successors or assigns as limited partners hereof, and any Person who,
at the time of reference thereto, is a limited partner of the Partnership.
"LIQUIDATING TRUSTEE" shall mean such individual or Entity which is
selected as the Liquidating Trustee hereunder by the General Partner, which
individual or Entity may include the General Partner or an Affiliate of the
General Partner; PROVIDED THAT, such Liquidating Trustee agrees in writing to be
bound by the terms of this Agreement. The Liquidating Trustee shall be empowered
to give and receive notices, reports and payments in connection with the
dissolution, liquidation and/or winding up of the Partnership and shall hold and
exercise such other rights and powers granted to the General Partner herein or
under the Act as are necessary or required to conduct the winding-up and
liquidation of the Partnership's affairs and to authorize all parties to deal
with the Liquidating Trustee in connection with the dissolution, liquidation
and/or winding-up of the Partnership.
"MAJOR DECISIONS" shall have the meaning set forth in Section 7.2 hereof.
"MAJORITY-IN-INTEREST OF THE LIMITED PARTNERS" shall mean Limited
Partner(s) (excluding the General Partner to the extent it Beneficially Owns any
limited Partnership Interest) who hold in the aggregate more than fifty (50)
percent of the Percentage Interests then allocable to and held by the Limited
Partners (excluding the General Partner to the extent it Beneficially Owns any
limited Partnership Interest), as a class.
"MGC" shall mean the Mississippi Gaming Commission and any successor
agency.
"MINIMUM GAIN ATTRIBUTABLE TO PARTNER NONRECOURSE DEBT" shall mean "partner
nonrecourse debt minimum gain" as determined in accordance with Regulation
Section 1.704-2(i)(3).
"MISSISSIPPI GAMING CONTROL ACT" shall mean the Gaming Control Act of
Mississippi, Miss. Code ss. 75-76-1 ET SEQ.
"NET INCOME" or "NET LOSS" shall mean, for each fiscal year or other
applicable period, an amount equal to the Partnership's net income or loss for
such year or period as determined for federal income tax purposes by the
Accountants, determined in accordance with Section 703(a) of the Code (for
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this purpose, all items of income, gain, loss or deduction required to be stated
separately pursuant to Section 703(a) of the Code shall be included in taxable
income or loss), with the following adjustments: (a) by including as an item of
gross income any tax-exempt income received by the Partnership; (b) by treating
as a deductible expense any expenditure of the Partnership described in Section
705(a)(2)(B) of the Code (including amounts paid or incurred to organize the
Partnership (unless an election is made pursuant to Code Section 709(b)) or to
promote the sale of interests in the Partnership and by treating deductions for
any losses incurred in connection with the sale or exchange of Partnership
property disallowed pursuant to Section 267(a)(1) or Section 707(b) of the Code
as expenditures described in Section 705(a)(2)(B) of the Code); (c) in lieu of
depreciation, depletion, amortization and other cost recovery deductions taken
into account in computing total income or loss, there shall be taken into
account Depreciation; (d) gain or loss resulting from any disposition of
Partnership property with respect to which gain or loss is recognized for
federal income tax purposes shall be computed by reference to the Gross Asset
Value of such property rather than its adjusted tax basis; (e) in the event of
an adjustment of the Gross Asset Value of any Partnership asset which requires
that the Capital Accounts of the Partnership be adjusted pursuant to Regulation
Section 1.704-1(b)(2)(iv)(e), (f) and (m), the amount of such adjustment is to
be taken into account as additional Net Income or Net Loss pursuant to Section
5.1; and (f) excluding any items specially allocated pursuant to Section 5.2.
Once an item of income, gain, loss or deduction has been included in the initial
computation of Net Income or Net Loss and is subjected to the special allocation
rules in Section 5.2, Net Income and Net Loss shall be computed without regard
to such item.
"NEW SECURITIES" means Indebtedness or Equity Interests of the General
Partner and any of its Subsidiaries other than the Partnership and its
Subsidiaries; PROVIDED THAT, New Securities shall not include Class B Stock and
Common Stock issued by THCR prior to the date of this Agreement.
"NONRECOURSE DEDUCTIONS" shall have the meaning set forth in Sections
1.704-2(b)(1) and (c) of the Regulations.
"NONRECOURSE LIABILITIES" shall have the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"OUTSIDE BUSINESS ACTIVITY" shall mean any business other than (i) the
ownership, acquisition and disposition of Partnership Interests as a General
Partner or Limited Partner and (ii) the management of the business of the
Partnership, and such activities as are incidental thereto, including, without
limitation, the issuance of New Securities and the application of the proceeds
thereof in compliance with the provisions of Section 7.10 of this Agreement.
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"PARTNER NONRECOURSE DEBT" shall have the meaning set forth in Section
1.704-2(b)(4) of the Regulations.
"PARTNER NONRECOURSE DEDUCTIONS" shall have the meaning set forth in
Section 1.704-2(i)(2) of the Regulations.
"PARTNERS" shall mean the General Partner and the Limited Partners, their
duly admitted successors or assigns or any Person who is a partner of the
Partnership at the time of reference thereto.
"PARTNERSHIP" shall mean the limited partnership formed under the Act
pursuant to this Agreement, and any successor thereto.
"PARTNERSHIP INTEREST" shall mean the ownership interest of a Partner in
the Partnership from time to time, including each Partner's Percentage Interest
and such Partner's Capital Account. Wherever in this Agreement reference is made
to a particular Partner's Partnership Interest it shall be deemed to refer to
such Partner's Percentage Interest and shall include the proportionate amount of
such Partner's other interests in the Partnership which are attributable to or
based upon the Partner's Partnership Interest.
"PARTNERSHIP MINIMUM GAIN" shall have the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"PERCENTAGE INTEREST" shall mean, with respect to any Partner, the
percentage ownership interest of such Partner in such items of the Partnership
as to which the term "Percentage Interests" is applied in this Agreement, as
specified in Schedule I hereto, as such Schedule may be amended from time to
time.
"PERMITTED HOLDER" with respect to any Partner shall mean (i) such Partner
and (ii) if a natural person, the spouse and descendants of such Partner
(including any related trusts controlled by, and established and maintained for
the sole benefit of, such Partner or such spouse or descendants) and the estate
of any of the foregoing. In addition, (x) TCI and ▇▇▇▇▇ and (y) TCI-II and ▇▇▇▇▇
shall each be Permitted Holders in respect of each other.
"PERMITTED LIMITED PARTNERSHIP INTEREST LIEN" shall mean any Lien to which
the limited Partnership Interest of a Limited Partner is subject; PROVIDED THAT,
the terms of such Lien (other than a Lien on the proceeds (as defined in Section
9-306 of the Uniform Commercial Code) of, or right to receive distributions or
payments with respect to, a limited Partnership Interest) must expressly
acknowledge that the rights of the holder of such Lien, upon foreclosure, will
be subject to the terms of the Exchange Rights Agreement.
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"PERMITTED PARTNERS" shall have the meaning set forth in Section 5.1(b)(ii)
hereof.
"PERSON" shall mean any natural person or Entity.
"PLAZA ASSOCIATES" shall mean ▇▇▇▇▇ Plaza Associates, a New Jersey general
partnership.
"REDEMPTION DATE" shall mean the date fixed by the General Partner for the
redemption of any Partnership Interests pursuant to Article XV hereof.
"REDEMPTION SECURITIES" shall mean any debt or equity securities of the
Partnership, any Subsidiary or any other corporation, or any combination
thereof, having such terms and conditions as shall be approved by the General
Partner and which, together with any cash to be paid as part of the redemption
price, in the opinion of any nationally recognized investment banking firm
selected by the General Partner (which may be a firm which provides other
investment banking, brokerage or other services to the Partnership), has a
value, at the time notice of redemption is given pursuant to Section 15.3, at
least equal to the Fair Market Value of the Partnership Interests to be redeemed
pursuant to Article XV (assuming, in the case of Redemption Securities to be
publicly traded, such Redemption Securities were fully distributed and subject
only to normal trading activity).
"REGULATIONS" shall mean the income tax regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"RESTRICTED PARTNER" shall have the meaning set forth in Section 5.1(b)(ii)
hereof.
"RIGHTS" shall mean the exchange rights as provided in the Exchange Rights
Agreement.
"SEC" shall mean the United States Securities and Exchange Commission.
"SPECIAL COMMITTEE" shall mean a committee of at least two (2) of the
members of the board of directors of the General Partner, composed solely of
directors who are not officers or employees of the General Partner and who are
not Affiliates of ▇▇▇▇▇ or any of his Affiliates; PROVIDED THAT, a director
shall not be deemed to be an Affiliate of either ▇▇▇▇▇ or his Affiliates solely
by reason of his or her being a member of the board of directors of the General
Partner or its Subsidiaries.
"STOCK INCENTIVE PLAN" shall mean the General Partner's 1995 Stock Option
Plan and such successor or additional plan as the General Partner may adopt.
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"STOCK OPTION" shall mean an option to purchase Shares granted under the
Stock Incentive Plan.
"SUBSIDIARY" with respect to any Person shall mean a "subsidiary" as
defined in Section 1-02 of Regulation S-X promulgated under the Securities Act
of 1933, as amended.
"TAJ ASSOCIATES" shall have the meaning set forth in the Recitals to this
Agreement.
"TAJ MAHAL" shall mean the ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ Casino Resort and the ancillary
structures and other facilities used in connection with the operation thereof
located in Atlantic City, New Jersey.
"TAJ MAHAL MERGER TRANSACTION" shall have the meaning set forth in the
Recitals to this Agreement.
"TAX AMOUNTS" with respect to any year shall not exceed an amount equal to
(a) the higher of (i) the product of (A) the taxable income of the Partnership
(computed as if the Partnership were an individual) for such year as determined
in good faith by the board of directors of the General Partner and (B) the Tax
Percentage and (ii) the product of (A) the alternative minimum taxable income
attributable to the Partnership (computed as if the Partnership were an
individual) for such year as determined in good faith by the board of directors
of the General Partner and (B) the Tax Percentage, reduced by (b) to the extent
not previously taken into account, any income tax benefit attributable to the
Partnership which could be realized (without regard to the actual realization)
by its Partners in the current or any prior taxable year, or portion thereof,
commencing on the date of this Agreement (including any tax losses or tax
credits), computed at the applicable Tax Percentage for the year that such
benefit is taken into account for purposes of this computation. Any part of the
Tax Amount not distributed in respect of a tax period for which it is calculated
shall be available for distribution in subsequent tax periods.
"TAX DISTRIBUTION" shall mean distributions by the Partnership pursuant to
Section 6.2 hereof.
"TAX ITEMS" shall have the meaning set forth in Section 5.3(a).
"TAX PAYMENT LOAN" shall have the meaning set forth in Section 6.4(a)
hereof.
"TAX PERCENTAGE" shall mean the highest, aggregate effective marginal rate
of Federal, state and local income tax or, when applicable, alternative minimum
tax, to which any Partner would be subject in the relevant year of determination
(as certified to the General Partner by the Accountants);
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PROVIDED, HOWEVER, that in no event shall the Tax Percentage be greater than the
sum of (x) the highest, aggregate effective marginal rate of Federal, state, and
local income tax, or when applicable, alternative minimum tax, to which the
Partnership would have been subject if it were a C corporation for Federal
income tax purposes, and (y) 5 percentage points. If any Partner is an S
corporation, partnership, or similar pass-through entity for Federal income tax
purposes, the Tax Percentage shall be computed based upon the tax rates
applicable to the shareholder or partner of such Partner, as the case may be.
"TCHI" shall mean Trump's Castle Hotel & Casino, Inc., a New Jersey
corporation.
"TCI" shall mean ▇▇▇▇▇ Casinos, Inc., a New Jersey corporation.
"TCI-II" shall have the meaning set forth in the Preamble to this
Agreement.
"THCR" shall mean ▇▇▇▇▇ Hotels & Casino Resorts, Inc., a Delaware
corporation.
"THCR/LP" shall mean THCR/LP Corporation, a New Jersey corporation.
"TRADING DAY" shall mean a day on which the principal national securities
exchange on which the Common Stock is listed or admitted to trading is open for
the transaction of business or, if the Common Stock is are not listed or
admitted to trading on any national securities exchange, shall mean a Business
Day.
"TRANSFER" shall have the meaning set forth in Section 9.5.
"TRANSFER DETERMINATION" shall have the meaning set forth in Section
9.2(c).
"▇▇▇▇▇" shall have the meaning set forth in the Preamble to this Agreement.
"▇▇▇▇▇ ▇▇" shall mean ▇▇▇▇▇ Atlantic City Associates, a New Jersey general
partnership.
"▇▇▇▇▇ PLAZA" shall mean the ▇▇▇▇▇ Plaza Hotel and Casino and the ancillary
structures and other facilities used in connection with the operation thereof
located in Atlantic City, New Jersey.
"TRUMP'S CASTLE" shall mean Trump's Castle Casino Resort and the ancillary
structures and other facilities used in connection with the operation thereof
located in Atlantic City, New Jersey.
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"TRUMP'S CASTLE PROPERTY" shall have the meaning set forth in Section
5.3(c) hereof.
"VALUATION DATE" shall mean any date as of which the value of New
Securities, the Partnership, or any other property is to be determined for
purposes of this Agreement.
"WITHHOLDING TAX ACT" shall have the meaning set forth in Section 6.6(a)
hereof.
Section 1.2. ACCOUNTING TERMS AND DETERMINATIONS. All references in this
Agreement to "generally accepted accounting principles" or "GAAP" shall mean
generally accepted accounting principles in effect in the United States of
America at the time of application thereof. Unless otherwise specified herein,
all accounting terms used herein shall be interpreted, all determinations with
respect to accounting matters hereunder shall be made, and all financial
statements and certificates and reports as to financial matters required to be
furnished hereunder shall be prepared, in accordance with generally accepted
accounting principles, applied on a consistent basis.
ARTICLE II.
CONTINUATION OF PARTNERSHIP; BUSINESS OF PARTNERSHIP
Section 2.1. CONTINUATION. The parties hereto do hereby agree to continue
the Partnership as a limited partnership pursuant to the provisions of the Act,
for the purposes and upon the terms and conditions hereinafter set forth. The
Partners agree that the rights and liabilities of the Partners shall be as
provided in the Act, except as otherwise herein expressly provided.
Section 2.2 NAME.
(a) Subject to the provisions of paragraph (b) below, the name of the
Partnership shall be ▇▇▇▇▇ Hotels & Casino Resorts Holdings, L.P. or such
other name as shall be chosen from time to time by the General Partner in
its sole and absolute discretion. The inclusion of Trump's name in the name
of the Partnership shall not be deemed to be evidence that ▇▇▇▇▇
participates in the control of the business within the meaning of Section
17-303 of the Act or any comparable provision.
(b) The Partnership shall conduct business and qualify as a foreign
limited partnership under an assumed name, which shall not include the name
of any Limited Partner, in any jurisdiction where the inclusion of a
Limited Partner's name in the name of the Partnership would subject such
Limited Partner to general liability for the Partnership's debts.
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Section 2.3. CHARACTER OF THE BUSINESS. The purpose and business of the
Partnership is through its Affiliates and Subsidiaries (a) to conduct casino
gaming and to own and/or operate (i) ▇▇▇▇▇ Plaza, (ii) the Taj Mahal, (iii) the
Indiana Riverboat, (iv) Trump's Castle and (v) such other gaming properties and
facilities as the Partnership may acquire in the future; (b) to do all things
necessary, incidental, desirable or appropriate in connection with the
foregoing; and (c) to otherwise engage in any enterprise or business in which a
limited partnership may engage or conduct under the Act.
Section 2.4. LOCATION OF PRINCIPAL PLACE OF BUSINESS. The location of the
principal place of business of the Partnership shall be at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or such other location as shall be selected
from time to time by the General Partner in its sole and absolute discretion.
Section 2.5. REGISTERED AGENT AND REGISTERED OFFICE. The registered agent
of the Partnership shall be The Corporation Trust Company, or such other Person
as the General Partner may select in its sole and absolute discretion. The
registered office of the Partnership in the State of Delaware shall be ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ or such other location as the General
Partner may from time to time select in its sole discretion.
ARTICLE III.
TERM
Section 3.1. COMMENCEMENT. The Partnership's term commenced upon the filing
of the Certificate with the Secretary of State of Delaware on March 28, 1995.
Section 3.2. TERMINATION. The Partnership shall terminate on the close of
business on the 31st day of December 2035, unless sooner terminated pursuant to
Article VIII hereof.
ARTICLE IV.
CAPITAL CONTRIBUTIONS
Section 4.1. CAPITAL CONTRIBUTIONS; PARTNERSHIP INTERESTS AND PERCENTAGE
INTERESTS OF THE PARTNERS
(a) Prior to the date hereof, (I) the General Partner and the Initial
Limited Partner made or caused to be made the Capital Contributions set
forth opposite their respective names on Schedule II hereto and (II) the
General Partner, the Initial Limited Partner, THCR/LP and TCI made the
Capital Contributions set forth opposite their
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respective names on Schedule III hereto, and THCR/LP and TCI became Limited
Partners of the Partnership. Effective as of the date hereof, the Initial
Limited Partner and TCI-II shall make or cause to be made the Capital
Contributions set forth opposite their respective names on Schedule IV
hereto, and TCI-II shall become a Limited Partner of the Partnership. The
General Partner, the Initial Limited Partner, THCR/LP and TCI hereby
consent to the admission of TCI-II as a Limited Partner of the Partnership.
As of the date hereof, each Partner shall have made or caused to be made
the Capital Contributions set forth opposite such Partner's name on
Schedule I hereto (which shall reflect the aggregate of such Partner's
Capital Contributions as set forth on Schedules II, III and IV), and each
Partner shall have the Percentage Interests in the Partnership set forth
opposite such Partner's name in Schedule I, which Percentage Interests
shall be adjusted as provided in Schedule I as amended by the General
Partner from time to time after the date hereof to the extent necessary to
reflect properly redemptions or conversions of Partnership Interests,
Capital Contributions, the issuance of Additional Partnership Interests or
any other event having an effect on a Partner's Percentage Interest, in
each case to the extent permitted by and in accordance with this Agreement.
Except to the extent specifically set forth in this Agreement with respect
to the General Partner, the Partners shall have no obligation to make any
additional Capital Contributions or loans to the Partnership, even if the
failure to do so could result in the Bankruptcy or insolvency of the
Partnership or any other adverse consequence to the Partnership. All
surtax, documentary stamp tax or other transfer tax that may be imposed as
a result of the foregoing Capital Contributions shall be paid by the
Partnership.
(b) Except as provided by law, (i) no Limited Partner shall be liable
for any deficit in its Capital Account or (ii) except as provided in
Section 6.2(b), be obligated to return any distributions of any kind
received from the Partnership.
(c) So long as the Initial Limited Partner and his Permitted Holders
collectively beneficially own more than 10% of the issued and outstanding
Partnership Interests, the General Partner shall notify such Partners no
less than 60 days prior to any reduction of nonrecourse indebtedness or
other indebtedness which such Partner may include in the basis of its
interest in the Partnership (other than scheduled repayments of principal)
in an amount greater than $10 million during any fiscal year. Upon receipt
of such notice, such Partners shall be permitted, at their own expense, to
undertake any action they desire to increase the "economic risk of loss,"
within the meaning of Regulation section 1.752-2, that the Initial Limited
Partner and his Permitted Holders have with respect to the
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liabilities of the Partnership; PROVIDED, HOWEVER, that the Initial Limited
Partner and his Permitted Holders may not undertake any action that would
have, in the reasonable judgment of a majority of the Special Committee, a
material adverse tax impact on the Partnership, the General Partner or
other Limited Partners. If the Initial Limited Partner or his Permitted
Holders wish to undertake any action permitted pursuant to this section
4.1(c), the General Partner shall endeavor to cooperate with such Partners,
PROVIDED THAT, such Partners shall promptly reimburse the General Partner
for any reasonable costs incurred in providing such cooperation.
Section 4.2. ISSUANCE OF ADDITIONAL PARTNERSHIP INTERESTS AND SHARES.
(a) The General Partner is authorized to cause the Partnership from
time to time to issue to the General Partner, THCR/LP, the Initial Limited
Partner and his Permitted Holders, TCI, and TCI-II, Partnership Interests
("ADDITIONAL PARTNERSHIP INTERESTS") in one or more classes, or one or more
series of any of such classes, with such designations, preferences and
participating, optional or other special rights, powers and duties,
including rights, powers and duties which may be senior to interests in the
Partnership theretofore issued, for consideration not less than the Fair
Market Value thereof, and on such terms and conditions as shall be
determined by the General Partner and, which special rights, powers and
duties, without limitation, may relate to (i) the allocations of items of
Partnership income, gain, loss, deduction and credit to each such class or
series of Partnership Interests; (ii) the right of each such class or
series of Partnership Interests to share in Partnership distributions; and
(iii) the rights of each such class or series of Partnership Interests upon
dissolution and liquidation of the Partnership.
(b) No Additional Partnership Interests shall be issued to the General
Partner or any Subsidiary or nominee of the General Partner, unless either
(i) the Additional Partnership Interests are issued in connection
with an issuance of New Securities, the General Partner complies with
all of the provisions of this Agreement, including, without
limitation, Section 7.10(b) and (A) if such New Securities are Common
Stock, such Additional Partnership Interests have terms equivalent to
the Partnership Interest originally issued to the General Partner
hereunder; PROVIDED, HOWEVER, in the case of the issuance of Common
Stock as compensation for services rendered, the General Partner shall
be deemed to have contributed to the Partnership as a Capital
Contribution pursuant to Section 4.3 hereof an amount
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equal to the product of (x) the Fair Market Value of the Common Stock
(as of the Trading Day immediately preceding the date of issue of the
deferred stock to such recipient), times (y) the number of shares of
deferred Common Stock issued by the General Partner to such recipient;
(B) if such New Securities are Stock Options, no Additional
Partnership Interests shall be issued at the time of the issuance of
such Stock Options; PROVIDED THAT, upon the exercise of such Stock
Options, the General Partner shall contribute to the capital of the
Partnership an amount equal to the exercise price of such Stock
Options and shall be deemed to have contributed to the Partnership as
a Capital Contribution pursuant to Section 4.3 hereof an amount
equal to the product of (x) the Fair Market Value of the Common Stock
(as of the Valuation Day immediately preceding the date on which the
Stock Options are exercised), and (y) the number of shares of Common
Stock issued upon the exercise of such Stock Options, and (C) if such
New Securities are other than Common Stock or Stock Options, such
Additional Partnership Interests have conversion, subscription,
purchase and other terms equivalent to the terms of such New
Securities;
(ii) the Additional Partnership Interests are issued to all
Partners in proportion to their respective Percentage Interests;
(iii) Additional Partnership Interests are issued in connection
with any other contribution of value made by the General Partner to
the Partnership not otherwise described in clauses (i) and (ii) of
this Section 4.2(b); or
(iv) the Additional Partnership Interests are issued with the
written consent of all of the Limited Partners given in accordance
with Section 13.2 hereof.
(c) No Person shall have any preemptive, preferential or other similar
right with respect to (i) additional Capital Contributions or loans to the
Partnership; or (ii) issuance or sale of any Partnership Interests.
(d) The General Partner is hereby authorized on behalf of each of the
Partners to amend this Agreement solely to reflect any increase in the
Percentage Interests of any Partner and the corresponding reduction of the
Percentage Interests of the other Partners in accordance with the
provisions of this Section 4.2, and the General Partner shall promptly send
a copy of such amendment to each Limited Partner.
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Section 4.3. ADJUSTMENT OF PARTNERSHIP INTERESTS. Except with respect to a
Capital Contribution described in Section 4.2(b)(i)(C), effective on each date
on which a Partner has made a Capital Contribution to the Partnership (each an
"Adjustment Date"), the Percentage Interest of each Partner shall be adjusted,
which adjustment in the case of a Capital Contribution by the Initial Limited
Partner or his Permitted Holders shall be subject to the approval of a majority
of the Special Committee, such that the Percentage Interest of the Partner shall
be equal to a fraction, (a) the numerator of which is equal to the sum of (i)
the Deemed Partnership Interest Value of such Partner (computed as of the
Trading Day immediately preceding the Adjustment Date) and (ii) the amount of
the Capital Contribution contributed by such Partner on such Adjustment Date,
and (b) the denominator of which is equal to the sum of (i) the Deemed Value of
the Partnership (computed as of the Trading Day immediately preceding the
Adjustment Date) and (ii) the amount of the Capital Contribution contributed by
all Partners on such Adjustment Date. The General Partner shall promptly give
each Limited Partner written notice of its Percentage Interest, as adjusted, and
the Gross Asset Value shall be adjusted.
Section 4.4. NO INTEREST ON OR RETURN OF CAPITAL CONTRIBUTION. No Partner
shall be entitled to interest on its Capital Contribution or Capital Account.
Except as provided herein or by law, no Partner shall have any right to demand
or receive the return of its Capital Contribution.
Section 4.5. ADJUSTMENT FOR CASTLE ACQUISITION. Notwithstanding anything
to the contrary contained in this Agreement, the adjustments to the Partnership
Interest of each Partner with respect to the Castle Acquisition shall be as set
forth in Schedule I and Schedule IV hereof.
ARTICLE V.
ALLOCATIONS AND OTHER TAX AND ACCOUNTING MATTERS
The Net Income, Net Loss and/or other Partnership items shall be allocated
as follows:
Section 5.1. ALLOCATIONS OF NET INCOME AND NET LOSS.
(a) NET INCOME. Except as otherwise provided herein, Net Income for
any fiscal year or other applicable period shall be allocated in the
following order and priority:
(i) First, to the Partners, until the cumulative Net Income
allocated pursuant to this subparagraph (a)(i) for the current and all
prior periods equals the cumulative Net Loss allocated pursuant to
subparagraph (b)(ii) hereof for all prior
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periods, among the Partners in the reverse order that such Net Loss
was allocated to the Permitted Partners pursuant to subparagraph
(b)(ii) hereof.
(ii) Thereafter, the balance of the Net Income, if any, shall be
allocated to the Partners in accordance with their respective
Percentage Interests.
(b) NET LOSS. Except as otherwise provided herein, Net Loss of the
Partnership for each fiscal year or other applicable period shall be
allocated as follows:
(i) To the Partners in accordance with their respective
Percentage Interests.
(ii) Notwithstanding subparagraph (b)(i) hereof, to the extent
any Net Loss allocated to a Partner under subparagraph (b)(i) hereof
or this subparagraph (b)(ii) would cause such Partner (a "RESTRICTED
PARTNER") to have an Adjusted Capital Account Deficit as of the end of
the fiscal year to which such Net Loss relates, such Net Loss shall
not be allocated to such Restricted Partner and instead shall be
allocated to the other Partner(s) (the "PERMITTED PARTNERS") pro rata
in accordance with their relative Percentage Interests.
Section 5.2. SPECIAL ALLOCATIONS. Notwithstanding any provisions of Section
5.1, the following special allocations shall be made, to the least extent
necessary to satisfy section 704(b) of the Code and the Regulations promulgated
thereunder, in the following order:
(a) MINIMUM GAIN CHARGEBACK (NONRECOURSE LIABILITIES). If there is a
net decrease in Partnership Minimum Gain for any Partnership fiscal year
(except as a result of conversion or refinancing of Partnership
indebtedness, certain capital contributions or revaluation 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)(6). This
paragraph (a) is intended to comply with the minimum gain chargeback
requirement in said section of the Regulations and shall be interpreted
consistently therewith. Allocations pursuant to this paragraph (a) shall be
made in proportion to the respective amounts required to be allocated to
each Partner pursuant hereto.
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(b) MINIMUM GAIN ATTRIBUTABLE TO PARTNER NONRECOURSE DEBT. If there is
a net decrease in Minimum Gain Attributable to Partner Nonrecourse Debt
during any fiscal year (other than due to the conversion, refinancing or
other change in the debt instrument causing it to become partially or
wholly nonrecourse, certain capital contributions, or certain revaluations
of Partnership property (as further outlined in Regulation Section
1.704-2(i)(4))), 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 the 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 paragraph (b) is intended to comply with the
minimum gain chargeback requirement with respect to Partner Nonrecourse
Debt contained in said section of the Regulations and shall be interpreted
consistently therewith. Allocations pursuant to this paragraph (b) shall be
made in proportion to the respective amounts required to be allocated to
each Partner pursuant hereto.
(c) QUALIFIED INCOME OFFSET. In the event a Limited Partner
unexpectedly receives any adjustments, allocations or distributions
described in Regulation Section 1.704-1(b)(2)(ii) (d)(4), (5), or (6), and
such Limited Partner has an Adjusted Capital Account Deficit, items of
Partnership income and gain shall be specially allocated to such Partner in
an amount and manner sufficient to eliminate the Adjusted Capital Account
Deficit as quickly as possible. This paragraph (c) is intended to
constitute a "qualified income offset" under Regulation Section
1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
(d) NONRECOURSE DEDUCTIONS. Nonrecourse Deductions for any fiscal year
or other applicable period shall be allocated to the Partners in accordance
with their respective Percentage Interests. For purposes of Regulation
Section 1.752-3(a)(3), "excess nonrecourse liabilities" shall be allocated
among the Partners in proportion to their respective Percentage Interests.
(e) PARTNER NONRECOURSE DEDUCTIONS. Partner Nonrecourse Deductions for
any fiscal year or other applicable period shall be specially allocated to
the Partner that bears the economic risk of loss for the debt (i.e., the
Partner Nonrecourse Debt) in respect of which such Partner Nonrecourse
Deductions are attributable (as determined under Regulation Section
1.704-2(b) (4) and (i) (1)).
(f) ADDITIONAL ALLOCATIONS. Notwithstanding the foregoing, if, upon
final dissolution and termination of the
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Partnership and after taking into account all allocations of Net Income and
Net Loss (and other Tax Items) under this Article V, the distributions to
be made in accordance with the positive Capital Account balances would
result in a distribution that would be different from a distribution under
Section 6.3 hereof, then gross items of income and gain (and other Tax
Items) for the taxable year of the final dissolution and termination (and,
to the extent permitted under section 761(c) of the Code, gross items of
income and gain (and other Tax Items) for the immediately preceding taxable
year) shall be allocated to the Partners to increase or decrease their
Capital Account balances, as the case may be, so that the final
distribution will occur in the same manner as a distribution under Section
6.3 hereof.
Section 5.3. TAX ALLOCATIONS.
(a) GENERALLY. Subject to paragraphs (b) and (c) hereof, items of
income, gain, loss, deduction and credit to be allocated for income tax
purposes (collectively, "TAX ITEMS") shall be allocated among the Partners
on the same basis as their respective book items.
(b) SECTIONS 1245/1250 RECAPTURE. If any portion of gain from the sale
of property is treated as gain which is ordinary income by virtue of the
application of Code Sections 1245 or 1250 ("AFFECTED GAIN"), except to the
extent that the tax treatment of such sale is governed by section 704(c) of
the Code as provided under Section 5.3(c) hereof, then (i) such Affected
Gain, to the extent attributable to depreciation or amortization allowed or
allowable for any taxable period subsequent to the date hereof, shall be
allocated among the Partners in the same proportion that the depreciation
and amortization deductions giving rise to the Affected Gain were allocated
and (ii) other Tax Items of gain of the same character that would have been
recognized, but for the application of Code Sections 1245 and/or 1250,
shall be allocated away from those Partners who are allocated Affected Gain
pursuant to clause (i) so that, to the extent possible, the other Partners
are allocated the same amount, and type, of capital gain that would have
been allocated to them had Code Sections 1245 and/or 1250 not applied. For
purposes hereof, in order to determine the proportionate allocations of
depreciation and amortization deductions for each fiscal year or other
applicable period, such deductions shall be deemed allocated on the same
basis as Net Income or Net Loss for such respective period.
(c) ALLOCATIONS RESPECTING SECTION 704(C).
(i) Property contributed to the Partnership shall be subject to
Section 704(c) of the Code and Regulation Section 1.704-3 so that
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notwithstanding Section 5.2 hereof, taxable gain and loss from
disposition of such property contributed to the Partnership that is
subject to section 704(c) of the Code shall be allocated on a property
by property basis in accordance with the Regulations promulgated
thereunder. Notwithstanding the foregoing, tax depreciation and
amortization with respect to Partnership property contributed by a
Partner (x) pursuant to the Contribution Agreement between the
Partnership and the Initial Limited Partner, dated as of June 12,
1995, (y) pursuant to the 1996 Contribution Agreement among ▇▇▇▇▇,
TCI, THCR/LP and the Partnership, dated as of April 17, 1996, and (z)
pursuant to the Castle Acquisition Agreement and the documents of
transfer executed in connection therewith, dated as of the date
hereof, shall be allocated on an aggregate basis for purposes of
complying with the requirements of Section 704(c) of the Code, taking
into account, for any particular taxable year for which such
allocation is made, the aggregate amount of depreciation and
amortization allowable with respect to the aggregate basis of such
Partnership properties determined as of the respective date of
contribution (and not taking into account (i) any increase in the
basis of such properties resulting from improvements thereon made by
the Partnership subsequent to the respective date of contribution or
(ii) any additional basis resulting from any new property purchased by
the Partnership in a taxable transaction subsequent to the respective
date of contribution); PROVIDED THAT, the General Partner shall not
specially allocate any Tax Items other than items of depreciation and
amortization referred to in this Section 5.3 (c) (i) to cure for the
effect of the ceiling rule set forth in Regulation Section 1.704-3(b),
except as specifically provided in subparagraph (c) (ii) hereof. The
Partnership shall allocate items of income, gain, loss and deduction
allocated to it by a partnership to the Partner or Partners
contributing the interest or interests in such partnership, so that,
to the greatest extent possible and consistent with the foregoing,
such contributing Partner or Partners are allocated the same amount
and character of items of income, gain, loss and deduction with
respect to such partnership that they would have been allocated had
they contributed undivided interests in the assets owned by such
partnership to the Partnership in lieu of contributing the interest or
interests in the partnership to the Partnership.
(ii) Notwithstanding subparagraph (c)(i) hereof, the Partnership
shall make reasonable curative allocations in accordance with
Regulations Section 1.704-3(c): (A) first, to THCR, THCR/LP and TCI of
Tax Items consisting of depreciation, amortization or other
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cost-recovery deductions that would have been otherwise allocable to
▇▇▇▇▇ pursuant to subparagraph (c)(i) hereof and the provisions of
Regulations Section 1.704-3 without any curative or remedial
allocations, and then (B) second, to ▇▇▇▇▇ of Tax Items of gross
income as provided below. These reasonable curative allocations shall
be made solely for the purpose of providing THCR, THCR/LP and TCI with
the tax equivalent of the depreciation and amortization deductions
that would have been allocated annually to THCR, THCR/LP and TCI
pursuant to subparagraph (c)(i) hereof had the basis of the interest
held by ▇▇▇▇▇ in Castle Associates as of the date hereof been equal to
$100,294,369, as such amount would have been adjusted to reflect
deductions for the portion of 1996 ending immediately prior to the
date hereof. The Tax Items that shall be allocated pursuant to this
subparagraph are limited to, first, to the extent available, tax
depreciation, amortization and other cost-recovery deductions, and,
second, to the extent necessary to satisfy the purpose described in
the preceding sentence, items of gross income (y) the allocation of
which is expected to have substantially the same effect to THCR,
THCR/LP and TCI as would an allocation to THCR, THCR/LP and TCI of
depreciation and amortization deductions with respect to the property
contributed by ▇▇▇▇▇ pursuant to the Castle Acquisition Agreement and
the documents of transfer executed in connection therewith ("Trump's
Castle Property"), or (z) from the disposition of Trump's Castle
Property.
(iii) The tax allocations made pursuant to this paragraph (c)
shall be reflected only in the tax capital accounts of the Partners
and shall have no effect on their Capital Accounts.
Section 5.4. BOOKS OF ACCOUNT. At all times during the continuance of the
Partnership, the General Partner shall maintain or cause to be maintained full,
true, complete and correct books of account in accordance with GAAP, using the
calendar year as the fiscal and taxable year of the Partnership. In addition,
the Partnership shall keep all records required to be kept pursuant to the Act.
Section 5.5. TAX MATTERS PARTNER. The General Partner is hereby designated
as the Tax Matters Partner within the meaning of Section 6231(a)(7) of the Code
for the Partnership; PROVIDED, HOWEVER, that (i) in exercising its authority as
Tax Matters Partner, the General Partner shall be limited by the provisions of
this Agreement affecting tax aspects of the Partnership; (ii) the General
Partner shall consult in good faith with the Limited Partner Representative
regarding the filing of a Code Section 6227(b) administrative adjustment request
with respect to the Partnership or a Contributed Property before
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filing such request, it being understood, however, that the provisions hereof
shall not be construed to limit the ability of any Partner, including the
General Partner, to file an administrative adjustment request on its own behalf
pursuant to Section 6227(a) of the Code; (iii) the General Partner shall consult
in good faith with the Limited Partner Representative regarding the filing of a
petition for judicial review of an administrative adjustment request under
Section 6228 of the Code, or a petition for judicial review of a final
partnership administrative judgment under Section 6226 of the Code relating to
the Partnership before filing such petition; (iv) the General Partner shall give
prompt notice to the Limited Partner Representative and any notice partners
under Section 6231 of the Code of the receipt of any written notice that the
Internal Revenue Service or any state or local taxing authority intends to
examine or audit Partnership income tax returns for any year, receipt of written
notice of the beginning of an administrative proceeding at the Partnership level
relating to the Partnership under Section 6223 of the Code, receipt of written
notice of the final Partnership administrative adjustment relating to the
Partnership pursuant to Section 6223 of the Code, and receipt of any request
from the Internal Revenue Service for waiver of any applicable statute of
limitations with respect to the filing of any tax return by the Partnership and
(v) the General Partner shall promptly notify the Limited Partner Representative
if the General Partner does not intend to file for judicial review with respect
to the Partnership.
Section 5.6. TAX ELECTIONS AND RETURNS. 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 and absolute discretion, except that the
General Partner shall, if requested by a Limited Partner or a transferee, file
an election on behalf of the Partnership pursuant to Section 754 of the Code to
adjust the basis of the Partnership property in the case of a transfer of a
Partnership Interest or distribution from the Partnership, including transfers
made in connection with the exercise of the Rights, made in accordance with the
provisions of this Agreement. The General Partner shall cause the Accountants to
prepare and submit to the Limited Partner Representative on or before March 31st
of each year for review drafts of all federal and state income tax returns of
the Partnership. If the Limited Partner Representative determines that any
modifications to the tax returns of the Partnership should be considered, the
Limited Partner Representative shall, within fifteen (15) days following receipt
of such tax returns from the Accountants or the General Partner, indicate to the
Accountants or to the General Partner the suggested revisions to the tax
returns, which returns shall be resubmitted to the Limited Partner
Representative for its review and approval. The Limited Partner Representative
shall complete its review of the resubmitted returns within ten (10) days after
receipt thereof from the Accountants or the General Partner. The General Partner
shall consult in good faith with the Limited Partner Representative regarding
any proposed
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modifications to the tax returns of the Partnership, PROVIDED THAT, (i) a
majority of the Special Committee shall make the final decision, in light of the
best interest of all Partners, of whether to accept or reject any such proposed
modifications, which decision shall be binding upon the Partnership and all of
the Partners and (ii) no Partner shall, unless otherwise required by applicable
law, take any position for income tax purposes or otherwise that is inconsistent
with such final decision of the majority of the Special Committee. A statement
of the allocation of Net Income or Net Loss of the Partnership shown on the
annual income tax returns prepared by the Accountants shall be transmitted and
delivered to the Limited Partner Representative within ten (10) days of the
receipt thereof by the Partnership. The General Partner shall be responsible for
preparing and filing all federal and state tax returns for the Partnership and
furnishing copies thereof to the Partners, together with required Partnership
schedules showing allocations of tax items, all within the period of time
prescribed by law. The General Partner shall use reasonable efforts to make
available to the Limited Partners final Forms K-1 not later than March 31 of
each year. Notwithstanding the foregoing, (x) ▇▇▇▇▇ shall have the right to
control the resolution of tax matters affecting or relating to Taj Associates in
respect of periods ending on or prior to April 17, 1996, including requiring the
Partnership, ▇▇▇▇▇ ▇▇ and ▇▇▇ Associates to adjust the tax basis of assets held
by Taj Associates in connection with the resolution of such tax matters to the
extent such basis adjustments shall not reduce THCR's share of federal income
tax depreciation and cost recovery deductions in respect of assets held by Taj
Associates as of the date hereof and contributions of the interests in Taj
Associates to ▇▇▇▇▇ ▇▇ and (y) ▇▇▇▇▇ shall have the right to control the
resolution of tax matters affecting or relating to Castle Associates in respect
of periods ending on or prior to the date hereof, including requiring the
Partnership, TCHI and Castle Associates to adjust the tax basis of assets held
by Castle Associates in connection with the resolution of such tax matters to
the extent such basis adjustments shall not reduce THCR's share of federal
income tax depreciation and cost recovery deductions in respect of assets held
by Castle Associates as of the date hereof and contributions of the interests in
Castle Associates to the Partnership.
Section 5.7. TAX CERTIFICATIONS.
(a) The Partnership shall deliver to each partner in the manner
provided in Section 16.1, from time to time as necessary to implement
timely the provisions of this Agreement, certificates executed by its chief
financial officers and the Accountants indicating the respective
calculations with respect to, and the amounts of, a Partner's share of Tax
Distributions and the amount of any repayments to the Partnership called
for thereunder, together with supporting schedules in reasonable detail all
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as of each pertinent date and delivered at least 15 business days prior to
the date payment is due.
(b) The certificates delivered pursuant to paragraph (a) hereof shall
be deemed approved by all parties and the Partnership shall act upon such
certificates as provided in this Agreement unless within five business days
of delivery of such certificate a Partner objects to the contents of any
certificate by written notice in detail sufficient to state the basis for
the objection. The Partners shall negotiate in good faith to resolve such
objection.
ARTICLE VI.
DISTRIBUTIONS
Section 6.1. GENERAL. Distributions of cash or property may be made in
accordance herewith at such times as the General Partner deems appropriate in
the order provided in this Article VI, subject to the limitations, if any, set
forth in the agreements governing the Partnership's Indebtedness.
Section 6.2. DISTRIBUTIONS FOR TAXES.
(a) The Partnership shall distribute to each Partner in one or more
payments, including payments described in paragraph (b) from time to time
during each year, but in no event later than March 1 of the year
immediately following such year, an aggregate cash sum equal to the product
of (i) Tax Amounts in respect of the taxable year, or portion thereof, for
which such distribution is being made and (ii) the Partner's Percentage
Interest. In addition, the Partnership shall make additional pro rata
distributions as are necessary to reflect adjustments, as determined in
good faith by the board of directors of the General Partner, to any item
affecting Tax Amounts, as reflected on the Partnership's tax return, as it
may be amended from time to time, or as a result of a concluded tax audit.
(b) In addition to the certificates required by Section 5.7, the
Partnership shall furnish the Partners with such information as they shall
reasonably request from time to time respecting estimates of the
Partnership's taxable income or loss (and items thereof) for any fiscal
year or portion thereof. If, in any year, any Partner shall be required to
make federal, state or local estimated income tax payments under applicable
law and regulations, then, at least thirty (30) days prior to the date (the
"Estimated Payment Date") upon which any such payments are due, the
Partnership shall deliver to each Partner the certificates required by
Section 5.7, indicating the amount (the
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"Estimated Payment") of the tax in respect of the respective Tax Amounts
due on the Estimated Payment Date, and not later than fifteen (15) days
prior to such Estimated Payment Date, the Partnership shall pay to such
Partner an amount equal to such Estimated Payment. The amount of each
Estimated Payment received by such Partner shall be treated as a
non-interest bearing advance against the amounts distributable in respect
of such Partner's pro rata share of Tax Amounts to such Partner for such
year. If the aggregate amount of the Estimated Payments received by a
Partner for any year shall exceed the distribution to which such Partner
actually is entitled under paragraph (a) above, such Partner shall
forthwith repay such excess to the Partnership on or before the date set
forth in paragraph (a) above, unless such excess shall have been paid to
taxing authorities in which event such excess shall be applied to reduce
the amount otherwise distributable pursuant to this Section 6.2 in respect
of the Partnership's next succeeding fiscal year or years. Each Partner
shall seek, to the extent entitled thereto, and contribute to the
Partnership any refund of taxes paid by such Partner out of amounts
distributed pursuant to this Section 6.2 promptly after receipt of such
refund.
Section 6.3. OTHER DISTRIBUTIONS. After payments and distributions, if any,
of the amounts set forth in Section 6.2 above, the Partnership may distribute,
in the discretion of a majority of the board of directors of the General
Partner, cash or other property, valued at its Fair Market Value, to the
Partners. Any such distributions shall be made pro rata in accordance with their
Percentage Interests.
Section 6.4. WITHHOLDING PAYMENTS REQUIRED BY LAW.
(a) Unless treated as a Tax Payment Loan (as hereinafter defined), any
amount paid by the Partnership for or with respect to any Partner on
account of any withholding tax or other tax payable with respect to the
income, profits or distributions of the Partnership pursuant to the Code,
the Regulations, or any state or local statute, regulation or ordinance
requiring such payment (a "WITHHOLDING TAX ACT") shall be treated as a
distribution to such Partner for all purposes of this Agreement, consistent
with the character or source of the income, profits or cash which gave rise
to the payment or withholding obligation. To the extent that the amount
required to be remitted by the Partnership under the Withholding Tax Act
exceeds the amount then otherwise distributable to such Partner, unless and
to the extent that funds shall have been provided by such Partner pursuant
to the last sentence of this Section 6.4(a), the excess shall constitute a
loan from the Partnership to such Partner (a "TAX PAYMENT LOAN") which
shall be payable upon demand and shall bear interest, from the date that
the Partnership makes the payment to the
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relevant taxing authority, at the rate announced from time to time by
Citibank, N.A. (or any successor thereto) as its "prime rate", compounded
monthly (but in no event higher than the highest interest rate permitted by
applicable law). So long as any Tax Payment Loan to any Partner or the
interest thereon remains unpaid, the Partnership shall make future
distributions due to such Partner under this Agreement by applying the
amount of any such distributions first to the payment of any unpaid
interest on such Tax Payment Loan and then to the repayment of the
principal thereof, and no such future distributions shall be paid to such
Partner until all of such principal and interest has been paid in full. If
the amount required to be remitted by the Partnership under the Withholding
Tax Act exceeds the amount then otherwise distributable to a Partner, the
Partnership shall notify such Partner at least five (5) Business Days in
advance of the date upon which the Partnership would be required to make a
Tax Payment Loan under this Section 6.4(a) (the "TAX PAYMENT LOAN DATE")
and provide such Partner the opportunity to pay to the Partnership, on or
before the Tax Payment Loan Date, all or a portion of such deficit.
(b) The General Partner shall have the authority to take all actions
necessary to enable the Partnership to comply with the provisions of any
Withholding Tax Act applicable to the Partnership and to carry out the
provisions of this Section 6.4. Nothing in this Section 6.4 shall create
any obligation on the General Partner to advance funds to the Partnership
or to borrow funds from third parties in order to make any payments on
account of any liability of the Partnership under a Withholding Tax Act.
(c) In the event that a Tax Payment Loan is not paid by a Limited
Partner within thirty (30) days after written demand therefor is made by
the General Partner, the General Partner may cause all distributions that
would otherwise be made to such Limited Partner to be retained by the
Partnership, up to the amount necessary to repay such Tax Payment Loan,
including all accrued and unpaid interest thereon, and such retained
distributions shall be applied against, FIRST, the accrued interest on and,
SECOND, the principal of, such Tax Payment Loan.
Section 6.5. NON-RECOURSE. Notwithstanding any other provisions of this
Agreement, the obligations to make distributions contemplated hereby shall be
limited to the assets of the Partnership and shall be non-recourse with respect
to the Partners and any of their assets.
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ARTICLE VII.
RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER
Section 7.1. POWERS AND DUTIES OF GENERAL PARTNER.
(a) The General Partner shall be responsible for the management of the
Partnership's business and affairs. Except as otherwise expressly provided
in this Agreement, and subject to the limitations contained in Section 7.2
hereof with respect to Major Decisions, the General Partner shall have, and
is hereby granted, full and complete power, authority and discretion to
take such action for and on behalf of the Partnership and in its name as
the General Partner shall, in its sole and absolute discretion, deem
necessary or appropriate to carry out the Partnership's business and the
purposes for which the Partnership was organized. Except as otherwise
expressly provided herein, and subject to Section 7.2 hereof, the General
Partner shall, on behalf of, and at the expense of, the Partnership, have
the right, power and authority:
(i) to manage, control, invest, reinvest, acquire by purchase,
lease or otherwise, sell, contract to purchase or sell, grant, obtain,
or exercise options to purchase, options to sell or conversion rights,
assign, transfer, convey, deliver, endorse, exchange, pledge,
mortgage, abandon, improve, repair, maintain, insure, lease for any
term and otherwise deal with any and all property of whatsoever kind
and nature, and wheresoever situated, in furtherance of the business
or purposes of the Partnership;
(ii) to acquire, directly or indirectly, interests in gaming
ventures of any kind and of any type, and any and all kinds of
interests therein (including, without limitation, Entities investing
therein), and to determine the manner in which title thereto is to be
held; to manage (directly or through management agreements), insure
against loss, protect and subdivide any of such gaming ventures,
interests therein or parts thereof; and to participate in the
ownership, management and operation of any gaming venture;
(iii) to employ, engage, indemnify or contract with or dismiss
from employment or engagement Persons to the extent deemed necessary
or appropriate by the General Partner for the operation and management
of the Partnership's business, including but not limited to
contractors, subcontractors, engineers, architects, surveyors,
mechanics, consultants, accountants, attorneys, insurance brokers and
others;
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(iv) to enter into contracts on behalf of the Partnership, and to
cause all General Partner Expenses to be paid;
(v) to borrow or loan money, obtain or make loans and advances
from and to any Person for Partnership purposes and to apply for and
secure from or accept and grant to any Person credit or
accommodations; to contract liabilities and obligations (including
interest rate swaps, caps and ▇▇▇▇▇▇) of every kind and nature with or
without security; and to repay, collect, discharge, settle, adjust,
compromise or liquidate any such loan, advance, obligation or
liability;
(vi) to grant security interests, mortgage, assign, deposit,
deliver, enter into sale and leaseback arrangements or otherwise give
as security or as additional or substitute security or for sale or
other disposition any and all Partnership property, tangible or
intangible, including, but not limited to, personal property and real
estate and interests in land trusts, and to make substitutions
thereof, and to receive any proceeds thereof upon the release or
surrender thereof; to sign, execute and deliver any and all
assignments, deeds, bills of sale and contracts and instruments in
writing; to authorize, give, make, procure, accept and receive moneys,
payments, property notices, demands, protests and authorize and
execute waivers of every kind and nature; to enter into, make,
execute, deliver and receive agreements, undertakings and instruments
of every kind and nature; and generally to do any and all other acts
and things incidental to any of the foregoing or with reference to any
dealings or transactions which the General Partner may deem necessary,
proper or advisable to effect or accomplish any of the foregoing or to
carry out the business and purposes of the Partnership;
(vii) to acquire and enter into any contract of insurance
(including, without limitation, general partner liability and
partnership reimbursement insurance policies) which the General
Partner may deem necessary or appropriate;
(viii) to conduct any and all banking transactions on behalf of
the Partnership; to adjust and settle checking, savings and other
accounts with such institutions as the General Partner shall deem
appropriate; to draw, sign, execute, accept, endorse, guarantee,
deliver, receive and pay any checks, drafts, bills of exchange,
acceptances, notes, obligations, undertakings and other instruments
for or relating to the payment of money in, into or from any account
in
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the Partnership's name; to make deposits into and withdrawals from the
Partnership's bank accounts and to negotiate or discount commercial
paper, acceptances, negotiable instruments, bills of exchange and
dollar drafts;
(ix) to demand, ▇▇▇ for, receive and otherwise take steps to
collect or recover all debts, rents, proceeds, interests, dividends,
goods, chattels, income from property, damages and all other property,
to which the Partnership may be entitled or which are or may become
due the Partnership from any Person; to commence, prosecute or
enforce, or to defend, answer or oppose, contest and abandon all legal
proceedings in which the Partnership is or may hereafter be
interested; and to settle, compromise or submit to arbitration any
accounts, debts, claims, disputes and matters which may arise between
the Partnership and any other Person and to grant an extension of time
for the payment or satisfaction thereof on any terms, with or without
security;
(x) to acquire interests in and contribute money or property to
any limited or general partnerships, joint ventures, Subsidiaries or
other Entities as the General Partner deems desirable and to conduct
the Partnership's business through such Entities;
(xi) to maintain or cause to be maintained the Partnership's
books and records;
(xii) to prepare and deliver, or cause to be prepared and
delivered, all financial and other reports with respect to the
operations of the Partnership, and preparation and filing of all tax
returns and reports;
(xiii) to do all things which are necessary or advisable for the
protection and preservation of the Partnership's business and assets,
and to execute and deliver such further instruments and undertake such
further acts as may be necessary or desirable to carry out the intent
and purposes of this Agreement and as are not inconsistent with the
terms hereof; and
(xiv) in general, to exercise all of the general rights,
privileges and powers permitted to be had and exercised under the Act.
(b) Except as otherwise provided in this Agreement, to the extent the
duties of the General Partner require expenditures of funds to be paid to
third parties, the General Partner shall not have any obligations hereunder
except to the extent that Partnership funds are reasonably
-35-
available to it for the performance of such duties, and nothing herein
contained shall be deemed to require the General Partner, in its capacity
as such, to expend its individual funds for payment to third parties or to
undertake any specific liability or litigation on behalf of the
Partnership.
(c) Notwithstanding the provisions of Section 7.1(a), the Partnership
shall not commingle its funds with those of any Affiliate or other Entity;
funds and other assets of the Partnership shall be separately identified
and segregated; all of the Partnership's assets shall at all times be held
by or on behalf of the Partnership, and, if held on behalf of the
Partnership by another Entity, shall at all times be kept identifiable (in
accordance with customary usages) as assets owned by the Partnership; and
the Partnership shall maintain its own separate bank accounts, payroll and
books of account.
(d) Notwithstanding the provisions of Section 7.1(a), the Partnership
shall pay from its own assets all obligations of any kind incurred by the
Partnership.
Section 7.2. MAJOR DECISIONS. The General Partner shall not, without the
prior Consent of the Limited Partners undertake, on behalf of the Partnership,
any of the following actions at any time that the Limited Partners (not
including the General Partner) own in the aggregate more than ten percent (10%)
of the issued and outstanding Partnership Interests (the "MAJOR DECISIONS"):
(a) make a general assignment for the benefit of creditors or appoint
or acquiesce in the appointment of a custodian, receiver or trustee for all
or any part of the assets of the Partnership;
(b) institute any proceedings for Bankruptcy on behalf of the
Partnership; or
(c) dissolve the Partnership.
Without the consent of all the Limited Partners, the General Partner shall
have no power to do any act in contravention of this Agreement or possess any
Partnership property for other than a Partnership purpose. In addition, the
General Partner shall have no power to do any act in contravention of applicable
law.
Section 7.3. REIMBURSEMENT OF THE GENERAL PARTNER.
(a) Except as provided in this Section 7.3 and elsewhere in this
Agreement (including the provisions of Articles VI and VIII), the General
Partner shall not receive
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payments from, or be compensated for its services as general partner of,
the Partnership.
(b) The General Partner shall be reimbursed on a monthly basis, or
such other basis as the General Partner may determine in its sole and
absolute discretion, for all General Partner Expenses. The Partners agree
that the General Partner Expenses shall be deemed to be incurred on behalf
of the Partnership. The General Partner represents that, except as
permitted by Section 7.4, its sole business is the ownership of direct and
indirect interests in and operation of the Partnership and as such all of
the General Partner Expenses will be incurred for the benefit of the
Partnership.
Section 7.4. OUTSIDE ACTIVITIES OF THE GENERAL PARTNER. Without the Consent
of the Limited Partners, the General Partner shall not directly or indirectly
enter into or conduct any Outside Business Activity.
Section 7.5. CONTRACTS WITH AFFILIATES.
(a) The Partnership may engage in transactions and enter into
contracts with Affiliates which are on terms that are no less favorable to
the Partnership than would be available at the time of such transaction or
transactions in a comparable transaction in arm's-length dealings with an
unaffiliated third party; PROVIDED THAT, the foregoing shall not limit any
of the transactions relating to the Taj Mahal Merger Transaction or the
Castle Acquisition.
(b) Notwithstanding the foregoing:
(i) No compensation shall be paid directly or indirectly to the
Initial Limited Partner by the Partnership or any of its Subsidiaries,
except (A) as set forth in the Executive Agreement, as in effect on
the date of this Agreement, (B) the Services Agreement between Plaza
Associates and the Initial Limited Partner, as in effect on the date
of this Agreement, (C) the Services Agreement between Castle
Associates and TCI-II, as in effect on the date of this Agreement, or
(D) with the approval of the Compensation Committee of the board of
directors of the General Partner; and
(ii) The Partnership and its Subsidiaries shall not enter into
any management, services, consulting or similar agreements with the
Initial Limited Partner or any of his Affiliates, except (A) the
Executive Agreement, as in effect on the date of this Agreement, (B)
the Services Agreement between Plaza Associates and the Initial
Limited Partner, as in effect on the date of this Agreement, (C) the
Services Agreement between Castle Associates and TCI-II, as in
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effect on the date of this Agreement, or (D) employment agreements in
the ordinary course of business, consistent with industry practice,
which are approved by the Compensation Committee of the board of
directors of the General Partner.
Section 7.6. TITLE TO PARTNERSHIP ASSETS. Title to Partnership assets,
whether real, personal or mixed and whether tangible or intangible, shall be
deemed to be owned by the Partnership as an Entity, and no Partner, individually
or collectively, shall have any ownership interest in such Partnership assets or
any portion thereof. Title to any or all of the Partnership assets may be held
in the name of the Partnership, the General Partner or one or more nominees, as
the General Partner may determine, including Affiliates of the General Partner.
The General Partner hereby acknowledges and confirms that any Partnership assets
for which legal title is held in the name of the General Partner or any nominee
or Affiliate of the General Partner shall be held by the General Partner for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; PROVIDED, HOWEVER, that the General Partner shall use its best
efforts to cause beneficial and record title to such assets to be vested in the
Partnership as soon as reasonably practicable. All Partnership assets shall be
recorded as the property of the Partnership in its books and records,
irrespective of the name in which legal title to such Partnership assets is
held.
Section 7.7. RELIANCE BY THIRD PARTIES. Notwithstanding anything to the
contrary in this Agreement, any Person dealing with the Partnership shall be
entitled to assume that the General Partner has full power and authority to
encumber, sell or otherwise use in any manner any and all assets of the
Partnership and to enter into any contracts on behalf of the Partnership, and
such Person shall be entitled to deal with the General Partner as if it were the
Partnership's sole party in interest, both legally and beneficially. In no event
shall any Person dealing with the General Partner or its representatives be
obligated to ascertain that the terms of this Agreement have been complied with
or to inquire into the necessity or expedience of any act or action of the
General Partner or its representatives. Each and every certificate, document or
other instrument executed on behalf of the Partnership by the General Partner
shall be conclusive evidence in favor of any and every Person relying thereon or
claiming thereunder that (i) at the time of the execution and delivery of such
certificate, document or instrument, this Agreement was in full force and
effect, (ii) the Person executing and delivering such certificate, document or
instrument was duly authorized and empowered to do so for and on behalf of the
Partnership and (iii) such certificate, document or instrument was duly executed
and delivered in accordance with the terms and provisions of this Agreement and
is binding upon the Partnership.
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Section 7.8. LIABILITY OF THE GENERAL PARTNER.
(a) Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner shall not be liable for monetary or other
damages to the Partnership, any of the Partners or any assignee of any
interest of any Partner for losses sustained or liabilities incurred as a
result of errors in judgment or of any act or omission if the General
Partner acted in good faith without fraud, gross negligence, willful
misconduct or a breach of the General Partner's fiduciary duties to the
Limited Partners. The General Partner shall not be obligated to make any
additional payments from its own funds or Capital Contributions for the
purpose of returning any capital of the Limited Partners.
(b) Subject to its obligations and duties as General Partner set forth
in Section 7.1 hereof, the General Partner may exercise any of the powers
granted to it by this Agreement and perform any of the duties imposed upon
it hereunder either directly or by or through its agents. The General
Partner shall not be responsible for any act of any such agent appointed by
it in good faith and without gross negligence including, without
limitation, any willful misconduct or gross negligence on the part of any
such agent.
Section 7.9. OFFICERS OF THE PARTNERSHIP. The Partnership shall have such
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. Each officer
shall have such duties and powers as are commonly incident to his or her office
and such additional duties and powers as the General Partner may from time to
time designate. Each officer and agent shall retain his or her authority at the
pleasure of the General Partner.
Section 7.10. COVENANTS OF THCR REGARDING THE ISSUANCE OF NEW SECURITIES.
THCR hereby covenants and agrees that so long as it is a General Partner:
(a) THCR shall not issue any additional shares of Class B Stock,
except to the Initial Limited Partner and his Permitted Holders.
(b) THCR shall not issue any additional New Securities, other than pro
rata to all holders of Common Stock unless (x) the General Partner shall
cause the Partnership to issue to THCR (or, in the absence of such
issuance, there shall be deemed to have been issued to THCR) Additional
Partnership Interests, as provided in Section 4.2(b)(i) and (y) THCR
contributes the gross proceeds (net of any Issuance Costs not paid by the
Partnership, which
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Issuance Costs shall be deemed to have been contributed to the Partnership
as a Capital Contribution for purposes of Section 4.3), if any, from the
issuance of such New Securities and from the exercise of rights contained
in such New Securities to the Partnership.
(c) In connection with any issuance of New Securities pursuant to
paragraph (b) of this Section 7.10, THCR shall make a Capital Contribution
to the Partnership of the gross proceeds (net of any Issuance Costs not
paid by the Partnership) raised in connection with such issuance (and any
proceeds paid upon conversion or exchange of the New Securities) and the
Partnership shall, as agent for THCR, simultaneously pay the Issuance Costs
to the extent included in General Partner Expenses, and credit such
contribution to the capital account of THCR.
Section 7.11. OTHER MATTERS CONCERNING THE GENERAL PARTNER.
(a) The General Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, or other document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(b) The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers and other
consultants and advisers selected by it, and any act taken or omitted to be
taken in reliance upon the advice or opinion of such Persons as to matters
which the General Partner reasonably believes to be within such Person's
professional or expert competence and in accordance with such advice or
opinion shall be prima facie evidence that such actions have been done or
omitted in good faith.
(c) The General Partner shall have the right, in respect of any of its
powers or obligations hereunder, to act through any of its duly authorized
officers and any attorney or attorneys-in-fact duly appointed by the
General Partner. Each such attorney shall, to the extent provided by the
General Partner in the power of attorney, have full power and authority to
do and perform all and every act and duty which is permitted or required to
be done by the General Partner hereunder.
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ARTICLE VIII.
DISSOLUTION, LIQUIDATION AND WINDING-UP
Section 8.1. ACCOUNTING. In the event of the dissolution, liquidation and
winding-up of the Partnership, a proper accounting shall be made of the Capital
Account of each Partner and of the Net Income or Net Loss of the Partnership
from the date of the last previous accounting to the date of dissolution.
Section 8.2. DISTRIBUTION ON DISSOLUTION. In the event of the dissolution
and liquidation of the Partnership for any reason, the assets of the Partnership
shall be liquidated for distribution in the following rank and order:
(a) Payment of creditors of the Partnership, including creditors who
are Partners or former Partners;
(b) Establishment of reserves as provided by the Liquidating Trustee
to provide for contingent liabilities, if any; and
(c) To the Partners in accordance with the positive balances in their
Capital Accounts after giving effect to all contributions, distributions
and allocations for all periods.
Whenever the Liquidating Trustee reasonably determines that any reserves
established pursuant to paragraph (b) above are in excess of the reasonable
requirements of the Partnership, the amount determined to be excess shall be
distributed to the Partners in accordance with the provisions of this Section
8.2.
Section 8.3. TIMING REQUIREMENTS.
(a) In the event that the Partnership is "liquidated" within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, any and all
distributions to the Partners pursuant to Section 8.2(c) hereof shall be
made no later than the later to occur of (i) the last day of the taxable
year of the Partnership in which such liquidation occurs or (ii) ninety
(90) days after the date of such liquidation.
(b) Notwithstanding the provisions of Section 8.2 hereof which require
liquidation of the assets of the Partnership, but subject to the order of
priorities set forth therein, if prior to or upon dissolution of the
Partnership the Liquidating Trustee determines that an immediate sale of
part or all of the Partnership's assets would be impractical or would cause
undue loss to the Partners, the Liquidating Trustee may, in its sole and
absolute discretion, defer for a reasonable time the
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liquidation of any assets except those necessary to satisfy liabilities of
the Partnership (including to those Partners which are creditors of the
Partnership) and/or, with the Consent of the Limited Partners, distribute
to the Partners, in lieu of cash, as tenants in common and in accordance
with the provisions of Section 8.2 hereof, undivided interests in such
Partnership assets as the Liquidating Trustee deems not suitable for
liquidation. Any such distributions in kind shall be made only if, in the
good faith judgment of the Liquidating Trustee, such distributions in kind
are in the best interest of the Partners, and shall be subject to such
conditions relating to the disposition and management of such properties as
the Liquidating Trustee deems reasonable and equitable and to any
agreements governing the operation of such properties at such time. The
Liquidating Trustee shall determine the fair market value of any property
distributed in kind using such reasonable method of valuation as it may
adopt.
Section 8.4. DOCUMENTATION OF LIQUIDATION. Upon the completion of the
dissolution and liquidation of the Partnership, the Partnership shall terminate
and the Liquidating Trustee shall have the authority to execute and record any
and all documents or instruments required to effect the dissolution, liquidation
and termination of the Partnership.
Section 8.5. DISSOLUTION. The Partnership shall be dissolved upon the
occurrence of any of the following events:
(a) the dissolution, liquidation, termination, withdrawal, death,
insanity, retirement or Bankruptcy of the last remaining General Partner or
other event causing dissolution under the Act;
(b) the election to dissolve the Partnership made in writing by the
General Partner with the Consent of the Limited Partners;
(c) the sale or other disposition of all or substantially all of the
assets of the Partnership unless the General Partner elects to continue the
Partnership business for the purpose of the receipt and the collection of
indebtedness or the collection of any other consideration to be received in
exchange for the assets of the Partnership (which activities shall be
deemed to be part of the winding up of the affairs of the Partnership); or
(d) the entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act, which decree is final and not
subject to appeal.
Following an event causing a dissolution of the Partnership, the
Partnership shall be wound-up and terminated
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unless the business of the Partnership is continued by the Partnership in
reconstituted form pursuant to Section 8.6.
Section 8.6. CONTINUATION OF THE PARTNERSHIP. The Partners hereby waive
their right of partition and agree, that except as provided in Section 9.7, they
shall not do anything that would terminate the Partnership prior to the
expiration of its term without the prior Consent of the Limited Partners. Upon
the bankruptcy, dissolution, liquidation, withdrawal, death, retirement or
insanity of any General Partner (a "Disabling Event"), or any other event of
dissolution under the Act, within 90 days thereafter, all of the remaining
Partners (or, to the extent permitted under the Act, such lesser number or
percentage of the Partners, but in no event less than a majority-in-interest of
the remaining Partners) may (a) elect to reconstitute the Partnership and
continue its business, and (b) in the case of an event as a result of which
there is no longer a party serving as general partner of the Partnership, select
a substitute General Partner, which substitute General Partner accepts such
election and agrees to serve as General Partner. Such successor General Partner
shall thereupon succeed to the rights and obligations of the General Partner as
provided in Section 9.1. A General Partner which has suffered a Disabling Event
shall automatically be converted to a Limited Partner having none of the voting
rights or privileges provided hereunder for the election to reconstitute the
Partnership as provided above.
ARTICLE IX.
TRANSFER AND REDEMPTION OF PARTNERSHIP INTERESTS;
CERTAIN CONSENT RIGHTS
Section 9.1. GENERAL PARTNER TRANSFER.
(a) Except as set forth in Section 9.7, during such time as the
Limited Partners (not including the General Partner) own in the aggregate
more than ten percent (10%) of the issued and outstanding Partnership
Interests, the General Partner shall not withdraw from the Partnership and
shall not Transfer all or any portion of its interest in the Partnership
without the Consent of the Limited Partners.
(b) Upon any Transfer of a Partnership Interest by the General Partner
in accordance with the provisions of this Section 9.1 (other than in
connection with the granting of a Lien), the transferee General Partner
shall become vested with the powers and rights of the transferor General
Partner, and shall be liable for all obligations and responsible for all
duties of the General Partner, once such transferee has executed such
instruments as may be necessary to effectuate such admission and to confirm
the agreement of such transferee to be bound by all the terms and
provisions of this Agreement with respect to the Partnership Interest
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so acquired. It shall be a further condition to any Transfer otherwise
permitted hereunder (other than in connection with the granting of a Lien)
that the transferee assumes by express agreement (or pursuant to a
statutory merger or consolidation wherein all obligations and liabilities
of the General Partner are assumed by a successor corporation by operation
of law) all of the obligations of the transferor General Partner under this
Agreement with respect to such transferred Partnership Interest and no such
Transfer (other than pursuant to a statutory merger or consolidation
wherein all obligations and liabilities of the transferor General Partner
are assumed by a successor corporation by operation of law) shall relieve
the transferor General Partner of its obligations under this Agreement
without the Consent of the Limited Partners. In connection with any such
permitted Transfer (other than in connection with the granting of a Lien),
the successor General Partner shall be deemed admitted as such immediately
prior to the effective time of the Transfer from the transferor General
Partner and shall continue the business of the Partnership without
dissolution.
(c) If the General Partner withdraws or retires from the Partnership,
in violation of this Agreement, (i) any remaining general partner may
continue the Partnership business or (ii) within 90 days thereafter, all of
the remaining Partners (or, to the extent permitted under the Act, such
lesser number or percentage of the Partners, but in no event less than a
majority-in-interest of the remaining Partners) may elect to continue the
Partnership business pursuant to Section 8.6.
Section 9.2. TRANSFERS BY LIMITED PARTNERS.
(a) No Limited Partner shall have the right, directly or indirectly,
to Transfer all or any part of its Partnership Interest to any Person
without the prior written consent of the General Partner, including a
majority of the Special Committee, which consent shall not be unreasonably
withheld or delayed; PROVIDED, HOWEVER, that no such consent shall be
required for (i) a Transfer of Partnership Interests pursuant to Article
XII hereof, (ii) a Transfer of Partnership Interests to a Permitted Holder,
(iii) the subjecting of a Limited Partnership Interest to a Permitted
Limited Partnership Interest Lien or (iv) the subsequent foreclosure on
such a Permitted Limited Partnership Interest Lien.
(b) It shall be a further condition to any Transfer (other than the
granting of a Permitted Limited Partnership Interest Lien) otherwise
permitted hereunder (including upon the foreclosure of any Lien) that the
transferee assume by operation of law or express agreement
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all of the obligations of the transferor Limited Partner under this
Agreement (including, without limitation, under Article IX) with respect to
such transferred Partnership Interest and no such Transfer (other than
pursuant to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor Partner of
its obligations under this Agreement without the approval of the General
Partner, in its reasonable discretion (it being understood that, without
limiting the generality of Section 9.5, a transferor Partner shall be
deemed relieved from such obligations, without the necessity of any such
approval, in respect of Partnership Interests transferred to the General
Partner pursuant to Article XII hereof). Upon such Transfer, the transferee
shall, subject to Section 9.2(d), be admitted as a substituted Limited
Partner and shall succeed to all of the rights, including rights with
respect to Article XII hereof, of the transferor Limited Partner under this
Agreement in the place and stead of such transferor Limited Partner (which
succession, in the event of a pledge, may be entered into and become
effective at the time of foreclosure or other realization of such pledge).
Any transferee, whether or not admitted as a substituted Limited Partner,
shall succeed to the obligations of the transferor hereunder (unless such
transfer is a pledge, encumbrance, hypothecation or mortgage or except as
otherwise provided herein). Unless admitted as a Limited Partner pursuant
to, and in accordance with, the terms hereof, no transferee, whether by a
voluntary Transfer, by operation of law or otherwise, shall have rights
hereunder, other than (i) to receive such portion of the distributions made
by the Partnership as are allocable to the Percentage Interest transferred
and (ii) under Article XII hereof.
(c) In addition to any other restrictions on transfer provided herein,
no Partnership Interest of a Limited Partner shall be transferable unless
the General Partner has determined by written notification (a "TRANSFER
DETERMINATION") to the transferring Limited Partner, which Transfer
Determination shall not be unreasonably withheld and shall be deemed given
if not refused within ten Business Days of the notice to the Partnership of
a proposed transfer; PROVIDED THAT, the proposed transferor and transferee
have promptly responded in writing to the reasonable requests, if any, of
the General Partner for additional information sufficient for the General
Partner to determine the matters set forth in this Section 9.2(c), that
either (i) such transfer will not cause (x) any lender to the Partnership
to hold in excess of ten (10) percent of the aggregate Partnership
Interests or any other percentage of the Partnership Interest that would,
pursuant to the Regulations under Section 752 of the Code or any successor
provision, cause a loan by such lender to constitute Partner
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Nonrecourse Debt, (y) a transfer of a Partnership Interest the value of
which would have been less than $20,000 when issued, or (z) a prohibited
transaction (as defined in section 4975(c) of the Code or Section 406 of
ERISA) to occur, or the Partnership to become, with respect to any employee
benefit plan subject to Title 1 of ERISA, a "party in interest" (as defined
in Section 3(14) of ERISA) or a "disqualified person" (as defined in
Section 4975(e)(2) of the Code), or the Partnership to be deemed to hold
"plan assets" (as defined in regulations promulgated by the Department of
Labor) of any employee benefit plan subject to Title I of ERISA, or (ii)
the General Partner has determined to waive one or more of such
requirements as of the date of this Agreement, and may, after the date of
this Agreement, waive one or more of such requirements in its reasonable
discretion after having determined that the transfer will not materially
adversely affect the Partnership, its assets or any Partner, or constitute
a violation of law.
(d) Any transferee of the interest of a Limited Partner pursuant to
this Section 9.2 shall, upon the written request of such transferee and the
transferring Limited Partner and the consent of the General Partner,
including a majority of the Special Committee, which consent shall not be
unreasonably withheld or delayed, be admitted as a Limited Partner under
this Article IX, and the transferring Limited Partner shall, if all of its
Partnership Interests have been Transferred, withdraw from the Partnership.
The Partnership shall not be required in any way to determine the validity
of any written instrument referred to in the immediately preceding
sentence, and shall be authorized to rely upon any such written instrument
signed by the necessary parties.
(e) Any permitted transferee under Section 9.2 who is not admitted as
a substituted Limited Partner in accordance with this Article IX
(including, without limitation, Sections 9.2(b) and 9.2(d)) shall be
considered an assignee for purposes of this Agreement. An assignee shall be
deemed to have had assigned to it, and shall be entitled to receive,
distributions from the Partnership and the share of Net Income, Net Losses,
and any other items of income, gain, loss, deduction and credit of the
Partnership and rights attributable to the Partnership Interests assigned
to such transferee, and shall have the rights of the transferor under
Article XII hereof, but shall not be deemed to be a holder of Partnership
Interests for any other purpose under this Agreement, and shall not be
entitled to vote such Partnership Interests in any matter presented to the
Limited Partners for a vote or consent. In the event any such transferee
desires to make a further assignment of any such Partnership Interests,
such transferee shall be subject to all the provisions of this Article IX
to the same
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extent and in the same manner as any Limited Partner desiring to make an
assignment of Partnership Interests.
(f) The Limited Partners acknowledge that the Partnership Interests
have not been registered under any federal or state securities laws and, as
a result thereof, they may not be sold or otherwise transferred, except in
compliance with such laws. Notwithstanding anything to the contrary
contained in this Agreement, no Partnership Interest may be sold or
otherwise transferred unless such transfer is exempt from registration
under any applicable securities laws or such transfer is registered under
such laws, it being acknowledged that the Partnership has no obligation to
take any action which would cause any such Partnership Interests to be
registered.
(g) Any transferee of ownership of the Partnership Interests
originally held by the Initial Limited Partner shall have the right to
purchase from the transferor of such Partnership Interests a pro rata
portion of the Class B Stock held by such transferor at a purchase price
equal to its par value.
Section 9.3. CERTAIN ADDITIONAL RESTRICTIONS ON TRANSFER. In addition to
any other restrictions on Transfer herein contained, in no event may any
Transfer of a Partnership Interest by any Partner be made (i) to any person or
Entity that lacks the legal right, power or capacity to own a Partnership
Interest; (ii) if such Transfer would cause a termination of the Partnership for
federal income tax purposes, except with the Consent of the Limited Partners,
subject to the provisions of Section 9.7; (iii) if such Transfer would, in the
opinion of counsel to the Partnership, cause the Partnership to cease to be
classified as a partnership for Federal income tax purposes; (iv) if such
Transfer is effectuated through an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Section 7704(b) of the Code; (v) if such Transfer would cause the Partnership to
become, with respect to any employee benefit plan subject to Title 1 of ERISA, a
"party-in-interest" (as defined in Section 3(14) of ERISA) or a "disqualified
person" (as defined in Section 4975(e)(2) of the Code); (vi) in violation of the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976; or (vii) if such transfer
would, in the opinion of counsel to the Partnership, cause any portion of the
assets of the Partnership to constitute assets of any employee benefit plan
pursuant to Department of Labor Regulations Section 2510.3-101.
Section 9.4. EFFECTIVE DATES OF TRANSFERS.
(a) Transfers pursuant to this Article IX may be made on any day, but
for purposes of this Agreement, the effective date of any such Transfer
shall be (i) the first day of the month in which such Transfer occurred if
such
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Transfer occurred on or prior to the fifteenth calendar day of a month, or
(ii) the first day of the month immediately following the month in which
such transfer occurred, if such Transfer occurred after the fifteenth
calendar day of a month, or such other date determined by the General
Partner pursuant to such convention as may be administratively feasible and
consistent with applicable law.
(b) If any Partnership Interest is Transferred (other than the
granting of a Permitted Limited Partnership Interest Lien) in compliance
with the provisions of this Article IX, on any day other than the first day
of a calendar year, then Net Income, Net Loss, each item thereof and all
other items attributable to such Partnership Interest for such year shall
be allocated to the transferor Partner, or the redeemed or selling
Partners, as the case may be, and, in the case of a Transfer other than a
redemption or the granting of a Permitted Limited Partnership Interest
Lien, to the transferee Partner, by taking into account their varying
interests during such year in accordance with Section 706(d) of the Code,
using the interim closing of the books method. Solely for purposes of
making such allocations, each of such items for the calendar month in which
the effective date of a Transfer (other than the granting of a Lien) occurs
shall be allocated to the transferor or transferee Partner as provided in
Section 9.4(a), and for purposes of Section 9.4(a), the transferee shall be
the owner of the Partnership Interest at the close of business on any day
on which a Transfer takes place.
Section 9.5. TRANSFER.
(a) The term "Transfer," when used in this Article IX with respect to
a Partnership Interest, shall be deemed to refer to a transaction by which
a Partner purports to assign its Partnership Interest or any portion
thereof to another Person, and includes a sale, assignment, gift, pledge,
encumbrance, hypothecation, mortgage, exchange, granting of a Lien or any
other disposition by law or otherwise; PROVIDED, HOWEVER, that the term
"TRANSFER", when used in this Article IX (except when such term is used in
Section 9.4) does not include any acquisition of Partnership Interests from
a Limited Partner by the General Partner or the Partnership pursuant to
Article XII.
(b) The Limited Partner has consented, in Section 4.1, to certain
issuances of Partnership Interests, and the foregoing provisions of this
Article IX, to the extent that they would, but for such Section or this
subsection (b), be applicable to such Transfers, are hereby deemed
satisfied or waived.
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(c) The General Partner is hereby authorized on behalf of each of the
Partners to amend this Agreement (including the schedules hereto) to
reflect the admission of any transferee of a Partnership Interest as a
substituted Limited Partner in accordance with the provisions of this
Article IX.
(d) No Partnership Interest shall be Transferred, in whole or in part,
except in accordance with the terms and conditions set forth in this
Article IX. Any Transfer or purported Transfer of a Partnership Interest
not made in accordance with this Article IX shall be null and void.
Section 9.6. REDEMPTION OF PARTNERSHIP INTEREST. The Partnership shall not
redeem, repurchase, or otherwise acquire Partnership Interests from the
Partners, except (i) for redemptions of Partnership Interests pro rata based on
the Partners' Percentage Interests, (ii) for redemptions of Partnership
Interests as provided in Article XV, and (iii) with the Consent of the Limited
Partners.
Section 9.7. CERTAIN CONSENT RIGHTS. Notwithstanding any other provision
of this Agreement to the contrary, (A) the General Partner shall have the right
to enter into, effect, and/or consummate, and, (B) the Limited Partners, as
such, shall not have the right to approve, consent, or vote with respect to: (x)
any merger, consolidation, combination, sale of all or substantially all of the
assets or stock of the General Partner, the sale of all of the General Partner's
interest in the Partnership, or any similar transaction, which, in the case of
this clause (x), if and only to the extent required by applicable law, has been
approved by the stockholders of the General Partner, or (y) any merger,
consolidation, combination, sale of all or substantially all of the assets of
the Partnership, or any similar transaction, which in the case of this clause
(y) has been approved by the stockholders of the General Partner; PROVIDED,
HOWEVER, that if any transaction is determined to be described in both clauses
(x) and (y) immediately above, the imposition of any requirement that the
stockholders of the General Partnership approve such transaction shall be
governed solely by clause (x) and not by clause (y).
ARTICLE X.
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
Section 10.1. NO PARTICIPATION IN MANAGEMENT. No Limited Partner, in its
capacity as such, shall take part in the management of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for or otherwise bind the Partnership. Any rights expressly
granted to the Limited Partners in this Agreement shall not be deemed to be
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rights relating to the management of the Partnership's business.
Section 10.2. BANKRUPTCY OF A LIMITED PARTNER. The Bankruptcy of any
Limited Partner shall not cause a dissolution of the Partnership, but the rights
of such Limited Partner to share in the Net Profits or Net Losses of the
Partnership and to receive distributions of Partnership funds shall, on the
happening of such event, devolve on its successors or assigns, subject to the
terms and conditions of this Agreement, and the Partnership shall continue as a
limited partnership. In no event, however, shall such assignee(s) become a
substituted Limited Partner except in accordance with Article IX hereof.
Section 10.3. NO WITHDRAWAL. No Limited Partner may withdraw from the
Partnership without the prior written consent of the General Partner, other than
as provided in Article IX of this Agreement; PROVIDED THAT, the foregoing
provisions of this Section 10.3 shall not apply to a withdrawal from the
Partnership upon a Transfer pursuant to Article XII hereof, such withdrawal to
be effective immediately without any requirement for consent thereto by the
General Partner.
Section 10.4. CONFLICTS. The Partners recognize that the Limited Partners
and their Affiliates have or may have other business interests, activities and
investments, some of which may be in conflict or competition with the business
of the Partnership, and that such Persons are entitled to carry on such other
business interests, activities and investments. Without limiting the foregoing
in deciding whether to take any actions in such capacity, such Limited Partners
and their Affiliates shall be under no obligation to consider the separate
interests of the Partnership and shall have no fiduciary obligations to the
Partnership and shall not be liable for monetary damages for losses sustained,
liabilities incurred or benefits not derived by the other Partners in connection
with such actions. The Limited Partners and their Affiliates may engage in or
possess an interest in any other business or venture of any kind, independently
or with others, on their own behalf or on behalf of other entities with which
they are affiliated or associated, and such persons may engage in any
activities, whether or not competitive with the Partnership, without any
obligation to offer any interest in such activities to the Partnership or to any
Partner. Neither the Partnership nor any Partner shall have any right, by virtue
of this Agreement, in or to such activities, or the income or profits derived
therefrom, and the pursuit of such activities, even if competitive with the
business of the Partnership, shall not be deemed wrongful or improper.
Notwithstanding the foregoing, (i) the provisions of this Section 10.4 shall not
negate or impair any other agreement between one or more of the Limited Partners
and the General Partner, the Partnership, or any of their respective
Subsidiaries, and (ii) in conducting an Outside Business Activity, a Limited
Partner will to the best of its ability and consistent with its fiduciary duty
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to such Outside Business Activity, conduct such Outside Business Activity in a
commercially reasonable manner so that on an annual overall basis the
Partnership is not discriminated against.
Section 10.5. PROVISION OF INFORMATION.
(a) ANNUAL AND PERIODIC REPORTS.
(i) ANNUAL STATEMENT. The General Partner shall, as soon as
practicable, but in no event later than 105 days after the close of
each fiscal year, cause to be furnished to each Partner Audited
Financial Statements for the Partnership, or of the General Partner if
such statements are prepared solely on a consolidated basis with the
General Partner, for the immediately preceding fiscal year of the
Partnership.
(ii) 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's fiscal year,
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 GAAP 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. In lieu of the foregoing, the General
Partner may furnish to each Partner a copy of the Partnership's
quarterly report on Form 10-Q, if the Partnership is then obligated to
file such report with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
(b) In addition to other rights provided by this Agreement or by the
Act, each Limited Partner shall have the right, for a purpose reasonably
related to such Limited Partner's interest as a limited partner in the
Partnership (the interests of a lender to such Limited Partner having a
Permitted Limited Partnership Interest Lien on its Partnership Interests
being so related), upon written demand with a statement of the purpose of
such demand:
(i) to obtain a copy of the most recent annual and quarterly
reports and current reports on
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Form 8-K filed with the SEC by the General Partner pursuant to the
Securities Exchange Act of 1934, as amended;
(ii) to obtain a copy of the Partnership's federal, state and
local income tax returns for each fiscal year of the Partnership;
(iii) to obtain a current list of the name and last known
business, residence or mailing address of each Partner;
(iv) to obtain a copy of this Agreement and the Certificate and
all amendments thereto, together with executed copies of all powers of
attorney pursuant to which this Agreement, the Certificate and all
amendments thereto have been executed; and
(v) such other information regarding the business, affairs and
condition, financial or otherwise, of the Partnership and its
Subsidiaries as such Partner may reasonably request.
(c) Notwithstanding any other provision of this Section 10.5, the
General Partner may keep confidential from the Limited Partners, for such
period of time as the General Partner determines in its sole and absolute
discretion to be reasonable, any information that the Partnership is
required by law or by agreements with an unaffiliated third party to keep
confidential.
Section 10.6. LIMITED PARTNER REPRESENTATIVE. The Initial Limited Partner
is hereby appointed as the Limited Partner Representative. A
Majority-in-Interest of the Limited Partners shall have the right, at any time,
within their sole discretion, to replace the Limited Partner Representative, or
to appoint a temporary substitute to act for a Limited Partner Representative
unable to act. Any appointment of a Limited Partner Representative made
hereunder shall remain effective until rescinded in a writing delivered to the
General Partner via certified mail, registered overnight express mail or
telecopy, and the General Partner shall have the right and authority to rely
(and shall be fully protected in so doing) on the actions taken and directions
given by such Limited Partner Representative, without any further evidence of
their authority or further action by the Limited Partners. The General Partner
shall send copies of all notices received by it pursuant to Section 5.6 to each
Limited Partner requesting the same.
Section 10.7. POWER OF ATTORNEY.
(a) Each Limited Partner constitutes and appoints the General Partner,
any Liquidating Trustee and authorized officers and attorneys-in-fact of
each, and each of those
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acting singly, in each case with full power of substitution, as its true
and lawful agent and attorney-in-fact, with full power and authority in its
name, place and stead to: execute, swear to, acknowledge, deliver, file and
record in the appropriate public offices (i) all certificates, documents
and other instruments (including, without limitation, this Agreement and
the Certificate and all amendments or restatements thereof) that the
General Partner or the Liquidating Trustee deems appropriate or necessary
to form, qualify or continue the existence or qualification of the
Partnership as a limited partnership (or a partnership in which the limited
partners have limited liability) in the State of Delaware and in all other
jurisdictions in which the Partnership may conduct business or own
property; (ii) all instruments that the General Partner deems appropriate
or necessary to reflect any amendment, change, modification or restatement
of this Agreement in accordance with its terms; (iii) all conveyances and
other instruments or documents that the General Partner deems appropriate
or necessary to reflect the dissolution and liquidation of the Partnership
pursuant to the terms of this Agreement, including, without limitation, a
certificate of cancellation; and (iv) all instruments relating to the
admission, withdrawal, removal or substitution of any Partner pursuant to
the provisions of this Agreement or the Capital Contribution of any
Partner.
(b) The foregoing power of attorney is irrevocable and a power coupled
with an interest, in recognition of the fact that each of the Partners will
be relying upon the power of the General Partner to act as contemplated by
this Agreement in any filing or other action by it on behalf of the
Partnership, and it shall survive the death or incompetency of a Limited
Partner to the effect and extent permitted by law, subsequent incapacity of
any Limited Partner and the transfer of all or any portion of such Limited
Partner's Partnership Interests and shall extend to such Limited Partner's
heirs, successors, assigns and personal representatives.
(c) Nothing contained in this Section 10.7 shall be construed as
authorizing the General Partner to amend this Agreement except in
accordance with Article XIII hereof.
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ARTICLE XI.
INDEMNIFICATION; EXCULPATION
Section 11.1. INDEMNIFICATION.
(a) To the fullest extent permitted by law, the Partnership shall and
does hereby indemnify an Indemnitee from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including
reasonable legal fees and expenses), judgments, fines, settlements, and
other amounts (collectively "Damages") arising from any and all claims,
demands, actions, suits or proceedings, civil, criminal, administrative or
investigative, that relate to the operations of the Partnership as set
forth in this Agreement in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise, unless it is
established that: (i) the act or omission of the Indemnitee was material to
the matter giving rise to the proceeding and was committed with fraud,
gross negligence, willful misconduct or in breach of the General Partner's
fiduciary duties to the Limited Partners; (ii) the Indemnitee actually
received an improper personal benefit in money, property or services; or
(iii) in the case of any criminal proceeding, the Indemnitee had reasonable
cause to believe that the act or omission was unlawful. The termination of
any proceeding by judgment, order or settlement shall not create a
presumption that the Indemnitee did not meet the requisite standard of
conduct set forth in this Section 11.1(a). Any indemnification pursuant to
this Section 11.1 shall be made only out of the assets of the Partnership
and no Partner shall have any personal liability therefor.
(b) Reasonable expenses incurred by an Indemnitee may be paid or
reimbursed by the Partnership in advance of the final disposition of the
proceeding upon receipt by the Partnership of (i) a written affirmation by
the Indemnitee of the Indemnitee's good faith belief that the standard of
conduct necessary for indemnification by the Partnership, as authorized in
this Section 11.1, has been met, and (ii) a written undertaking by or on
behalf of the Indemnitee to repay the amount paid or reimbursed if it shall
ultimately be determined that such standard of conduct has not been met.
(c) The indemnification provided by this Section 11.1 shall be in
addition to any other rights to which an Indemnitee may be entitled under
any agreement, as a matter of law or otherwise, and shall continue as to an
Indemnitee who has ceased to serve in such capacity.
(d) The Partnership may purchase and maintain insurance, on behalf of
the Indemnitees, against any
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liability that may be asserted against or expenses that may be incurred by
such Person in connection with the Partnership's activities, regardless of
whether the Partnership would have the power to indemnify such Person
against such liability under the provisions of this Agreement.
(e) For purposes of this Section 11.1, the Partnership shall be deemed
to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the
Partnership also imposes duties on, or otherwise involves services by, it
to the plan or participants or beneficiaries of the plan; excise taxes
assessed on an Indemnitee with respect to an employee benefit plan pursuant
to applicable law shall constitute fines within the meaning of this Section
11.1; and actions taken or omitted by the Indemnitee with respect to an
employee benefit plan in the performance of its duties for a purpose
reasonably believed by it to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Partnership.
(f) An Indemnitee shall not be denied indemnification in whole or in
part under this Section 11.1 solely because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies.
(g) The provisions of this Section 11.1 are for the benefit of the
Indemnitees, their heirs, successors, assigns personal representatives and
administrators, and shall not be deemed to create any rights for the
benefit of any other Persons.
Section 11.2. INDEMNIFICATION PROCEDURES.
(a) If a claim for indemnification is asserted against the Partnership
under Article XI, the Partnership shall have the right, at its own expense,
(i) subject to the Partnership's obligations to pay all amounts under
Section 11.1(a) to participate in the defense of any Action which resulted
in the claim for indemnification or (ii) to assume at any time the defense
of any Action which resulted in the claim for indemnification. Such
assumption of the defense by the Partnership shall be an admission that the
Action is a proper subject of indemnification pursuant to this Article XI.
The Indemnitee at any time may elect to participate in (but not conduct or
control) such defense at its expense, and the Partnership shall not be
responsible for the Indemnitee's costs of participation (including
attorneys, accountants, and in-house counsel fees). In either event, the
parties shall cooperate in the defense of such Action. The Partnership in
the defense of any Action shall not,
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except with the consent of the Indemnitee claiming indemnification under
Article XI, cause to be entered any judgment or enter into any settlement
which provides for the release of the Partnership or any other Partner but
does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such Indemnitee of a release equivalent to that
provided to the Partnership or any other Partner.
(b) The Indemnitee claiming indemnification under Article XI may, at
any time upon written notice to the Partnership, elect to conduct or
control its own defense in such Action (as opposed to merely participating
in the defense with counsel for the Partnership), but in such event,
provided that the Partnership has theretofore undertaken the defense of the
Indemnitee pursuant to Section 11.2(a) and subject to Section 11.2(c), such
Indemnitee shall cease to have the indemnification rights under Article XI,
and the Partnership shall no longer be obligated to continue the defense of
the Limited Partner, with respect to such Action.
(c) If the Partnership has assumed the defense of any Action under
clause (ii) of the first sentence of Section 11.2(a), and if at any time
there exists a conflict of interest in defending both the Partnership and
the Indemnitee, as determined in the reasonable judgment of counsel to the
Indemnitee, the Indemnitee shall so notify the Partnership and the
Indemnitee may, upon written notice to the Partnership delivered promptly
thereafter, elect to defend itself in such Action with counsel selected by
the Indemnitee, but reasonably acceptable to the Partnership, at the
expense of the Partnership. Following the assumption of defense by an
Indemnitee under this Section 11.2(c), an Indemnitee may not enter into any
settlement without the prior written consent of the Partnership, which
consent shall not be unreasonably withheld.
Section 11.3. EXCULPATION. No officer, employee or agent shall have any
liability to the Partnership or any Partner for monetary damages for any action
taken, or any failure to take any action, in such capacity, except liability for
(a) any improper financial benefit received by such Person; (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.
Section 11.4. NO LIABILITY OF DIRECTORS AND OTHERS. Notwithstanding
anything to the contrary contained herein, no recourse shall be had by the
Partnership or any Partner against any director, shareholder, officer, employee,
agent or attorney of the General Partner for any act or omission of the General
Partner or any obligation or liability of the General Partner under this
Agreement, and none of the foregoing shall have any
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personal liability for or with respect to any of the foregoing; PROVIDED THAT,
the foregoing shall not relieve any officer or director of the General Partner
of any liability in his capacity as such.
ARTICLE XII.
RIGHTS UNDER THE EXCHANGE RIGHTS AGREEMENT
THCR, the Initial Limited Partner, TCI and TCI-II have entered into the
Exchange Rights Agreement, substantially in the form of Exhibit A to this
Agreement.
Section 12.1. TRANSFER PURSUANT TO EXCHANGE RIGHTS AGREEMENT.
Notwithstanding anything to the contrary contained in this Agreement, the
Partners hereby consent to the Transfer of Partnership Interests pursuant to the
terms of such Exchange Rights Agreement, without compliance with any of the
other provisions of this Agreement.
Section 12.2. SUBJECT TO THE EXCHANGE RIGHTS AGREEMENT. The Initial Limited
Partner, TCI, TCI-II and all their respective subsequent transferees shall be
entitled to the benefits of, and subject to the burdens of, the Exchange Rights
Agreement, including, but not limited to, the "Conversion Right" of the Company
to require any such transferee (other than the Initial Limited Partner and his
Permitted Holders) to exchange its Partnership Interests for shares of Common
Stock on the terms and subject to the conditions set forth therein.
ARTICLE XIII.
AMENDMENT OF PARTNERSHIP AGREEMENT, MEETINGS
Section 13.1. AMENDMENTS.
(a) This Agreement may not be amended unless such amendment is
approved by the General Partner, with the consent of a majority of the
Special Committee, and by the Consent of the Limited Partners, except as
provided below in this Section 13.1.
(b) Notwithstanding Section 13.1(a), the General Partner, with the
consent of a majority of the Special Committee, shall have the power,
without the Consent of the Limited Partners but after five Business Days
notice to the Limited Partners, to amend this Agreement as may be required
to facilitate or implement any of the following purposes:
(i) to add to the obligations of the General Partner or surrender
any right or power granted
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to the General Partner for the benefit of the Limited Partners;
(ii) to reflect the admission, substitution, termination, or
withdrawal of Partners after the date hereof in accordance with
Article IX or XII of this Agreement; PROVIDED THAT, the General
Partner shall not be required to give the notice referred to in the
first paragraph of this subsection (b) in respect of a transfer of
Partnership Interests pursuant to Article XII hereof;
(iii) to reflect a change that is of an inconsequential nature
and does not adversely affect the Limited Partners, or to cure any
ambiguity, correct or supplement any provision in this Agreement not
inconsistent with law or with other provisions, or make other changes
with respect to matters arising under this Agreement that will not be
inconsistent with law or with the provisions of this Agreement; and
(iv) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or regulation of a
federal or state agency or contained in federal or state law.
The General Partner will provide notice to the Limited Partners promptly
after any action under this Section 13.1(b) is taken.
(c) Notwithstanding Sections 13.1(a) and (b) hereof, this Agreement
shall not be amended without the prior written consent of each Partner
adversely affected if such amendment would (i) convert a Limited Partner's
interest in the Partnership into a general partner's interest, (ii) modify
the limited liability of a Limited Partner, (iii) alter rights of the
Partners to receive allocations and distributions pursuant to Articles V
and VI hereof, (iv) alter or modify the Rights set forth in Article XII
except in compliance therewith, (v) amend this Section 13.1(c), (vi) alter
such Partner's rights to transfer its Partnership Interests, or (vii) amend
Section 4.1(c), 7.8, 10.8, Article XI or 13.2(d). Further, no amendment may
alter the restrictions on the General Partner's authority set forth in
Section 7.2 without the Consent specified in that section.
(d) Notwithstanding Section 13.1(a) hereof, no amendment of Section
7.4 shall be effective unless appropriate corresponding modifications are
made to Article XII and the Registration Rights Agreement to preserve the
financial terms of the Limited Partners' rights thereunder.
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(e) Any amendment, modification or repeal of Section 7.8 or Article XI
or any provision thereof shall be prospective only and shall not in any way
affect the rights to indemnification and limitations on the General
Partner's liability to the Partnership and the Limited Partners as in
effect immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in whole
or in part, prior to such amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
Section 13.2. MEETINGS OF THE PARTNERS; NOTICES TO PARTNERS.
(a) Meetings of the Partners may be called by the General Partner or
by any Limited Partner to act on any matter specified herein or in the Act
to be voted on or consented to by the Partners. The call shall state the
nature of the business to be transacted. Notice of any such meeting shall
be given to all Partners not less than seven (7) Business Days prior to the
date of such meeting. Partners may vote in person or by proxy at such
meeting. Whenever the vote or Consent of the Limited Partners is permitted
or required under this Agreement, such vote or Consent may be given at a
meeting of Partners or may be given in accordance with the procedure
prescribed in Section 13.2(b) hereof. Except as otherwise expressly
provided in this Agreement, the consent of holders of a majority of the
Partnership Interests shall control.
(b) Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth
the action so taken is (i) signed by Partners holding a majority of the
Partnership Interests of the Partners (or such other percentage as is
expressly required by this Agreement) and (ii) in the case of any matter
that would otherwise require the approval of a majority of the Special
Committee, such consent is approved by a majority of the Special Committee.
Such consent may be in one instrument or in several instruments, and shall
have the same force and effect as a vote of a majority of the Partnership
Interests of the Partners (or such other percentage as is expressly
required by this Agreement). Such consent shall be filed with the General
Partner and copies thereof delivered to all Partners. An action so taken
shall be deemed to have been taken at a meeting held on the effective date
so certified.
(c) Each Limited Partner may authorize any Person or Persons to act
for him by proxy on all matters in which a Limited Partner is entitled to
participate, including waiving notice of any meeting, or voting or
participating at a meeting. Every proxy must be signed by the Limited
Partner or his attorney-in-fact. No proxy shall be valid
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after the expiration of 11 months from the date thereof unless otherwise
provided in the proxy. Every proxy shall be revocable at the pleasure of
the Limited Partner executing it. No such proxy and no such revocation
shall be effective unless a copy thereof has been delivered to the General
Partner.
(d) Whenever the Consent of the Limited Partners is required
hereunder, the General Partner shall provide a notice to each Partner who
is a Limited Partner on the date the notice is given setting forth the
matter(s) as to which it proposes to seek such Consent at least five (5)
Business Days in advance of the date upon which such Consent is sought.
ARTICLE XIV.
CERTIFICATE OF INTEREST
Section 14.1. FORM OF CERTIFICATE OF INTEREST. The interest of each Partner
in the Partnership shall be evidenced by a Certificate of Interest (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 the General Partner to the lawful holder of an interest in
the Partnership, upon payment of the full amount of the Capital Contributions
then due with respect to the Partnership Interest represented by such
Certificate of Interest. All Certificates of Interest shall be executed in the
name of the Partnership by the General Partner. Each Certificate of Interest
shall state on its face the name of the registered holder thereof, and shall
bear, on both sides thereof, a statement of the restrictions imposed by Section
105 of the Casino Control Act. Effective on the date hereof, the General
Partner, the Initial Limited Partner, THCR/LP and TCI shall tender their
respective Certificates of Interest (which shall be canceled) for new
Certificates of Interest evidencing, as of the date hereof, their respective
interests in the Partnership.
Section 14.2. 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
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in compliance with the terms and provisions of this Agreement, and any attempted
assignment or transfer in contravention hereof shall be ineffectual.
Section 14.3. 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 14.3.
Section 14.4. 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 CCC and the Division of Gaming
Enforcement of the State of New Jersey and each of their respective authorized
agents at all reasonable times without notice.
ARTICLE XV.
REGULATORY REQUIREMENTS
Section 15.1. APPLICABLE REGULATORY AUTHORITY AND CCC REGULATION.
Notwithstanding anything to the contrary in this Agreement:
(a) This Agreement will be deemed to include all provisions required
by the Casino Control Act, the Indiana Riverboat Act, and the Mississippi
Gaming Control Act and to the extent that anything contained in this
Agreement is inconsistent with such acts, the provisions of such acts shall
govern. All provisions of the Casino Control Act, the Indiana Riverboat
Act, and the Mississippi Gaming 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.
(b) 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 CCC under the circumstances.
It is the intent of this Section
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15.1 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.
(c) All transfers (as defined by the Casino Control Act and the
governing laws, statutes rules and regulations of any Applicable Regulatory
Authority) of securities (as defined by the Casino Control Act and the
governing laws, statutes rules and regulations of any Applicable Regulatory
Authority), shares and other interests in the Partnership shall be subject
to the right of prior approval by the Applicable Regulatory Authority; and
(b) the Partnership shall have the absolute right to repurchase in
accordance with Section 15.3, any security, share or other interest in the
Partnership in the event that the Applicable Regulatory Authority
disapproves a transfer in accordance with the provisions of the Casino
Control Act.
(d) Each Partner hereby agrees to cooperate reasonably and promptly
with the others in obtaining any and all licenses, permits or approvals
required by any Applicable Regulatory Authority or deemed expedient by the
Partners.
Section 15.2. ADDITIONAL APPLICABLE REGULATORY AUTHORITY REGULATION. No
Person may become the Beneficial Owner of five percent (5%) or more of any class
or series of Partnership Interests unless such Person agrees in writing to: (i)
provide to the Applicable Regulatory Authorities information regarding such
Person, including without limitation thereto, information regarding other
gaming-related activities of such Person and financial statements, in such form,
and with such updates, as may be required by the Applicable Regulatory
Authorities; (ii) respond to written or oral questions that may be propounded by
the Applicable Regulatory Authorities and (iii) consent to the performance of
any background investigation that may be required by the IGC, including without
limitation thereto, an investigation of any criminal record of such Person.
Section 15.3. DISQUALIFIED HOLDERS. Notwithstanding any other provision of
this Agreement, Partnership Interests held by a Disqualified Holder (or in the
case of a Disqualified Holder of securities of the General Partner, the
corresponding Partnership Interest of the General Partner) shall be subject to
redemption at any time by the Partnership by action of the General Partner,
pursuant to this Section 15.3 as follows:
(a) the redemption price of the Partnership Interest to be redeemed
pursuant to this Section 15.3 shall be equal to the Fair Market Value of
such Partnership Interest or such other redemption price as required by
pertinent state or federal law pursuant to which the redemption is
required;
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(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof; PROVIDED, HOWEVER, in the
case of a redemption mandated by the CCC, the redemption price shall be
paid in cash;
(c) if less than all the Partnership Interest held by Disqualified
Holders are to be redeemed, the Partnership Interest to be redeemed shall
be selected in such manner as shall be determined by the General Partner,
which may include selection first of the most recently purchased portion
thereof, selection by lot, or selection in any other manner determined by
the General Partner;
(d) at least thirty (30) days' written notice of the Redemption Date
shall be given to the record holders of the Partnership Interest selected
to be redeemed (unless waived in writing by any such holder); PROVIDED,
HOWEVER, that the Redemption Date shall be deemed to be the date on which
written notice shall be given to record holders if the cash or Redemption
Securities necessary to effect the redemption shall have been deposited in
trust for the benefit of such record holders and subject to immediate
withdrawal by them upon surrender of the Certificates of Interests for
their Partnership Interests to be redeemed;
(e) from and after the Redemption Date or such earlier date as
mandated by pertinent state or federal law, any and all rights of whatever
nature, which may be held by the Beneficial Owners of Partnership Interests
selected for redemption (including without limitation any rights to vote or
participate in distribution) shall cease and terminate and they shall
thenceforth be entitled only to receive the cash or Redemption Securities
payable upon redemption; and
(f) such other terms and conditions as the General Partner shall
determine.
ARTICLE XVI.
GENERAL PROVISIONS
Section 16.1. NOTICES. All notices, offers or other communications required
or permitted to be given pursuant to this Agreement shall be in writing and may
be personally served or sent by United States mail and shall be deemed to have
been given when delivered in person or three business days after deposit in
United States mail, registered or certified, postage prepaid, and properly
addressed, by or to the appropriate party. For purposes of this Section 16.1,
the addresses of the parties hereto shall be as set forth below their name on
the signature page hereof.
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The address of any party hereto may be changed by a notice in writing given in
accordance with the provisions hereof.
Section 16.2. CONTROLLING LAW. This Agreement and all questions relating to
its validity, interpretation, performance and enforcement (including, without
limitation, provisions concerning limitations of actions), shall be governed by
and construed in accordance with the laws of the State of Delaware,
notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary.
Section 16.3. NO THIRD PARTY BENEFICIARIES. No creditor or other third
party shall have the right to enforce any right or obligation of any Partner to
make Capital Contributions or to pursue any other right or remedy hereunder or
at law or in equity, it being understood and agreed that the provisions of this
Agreement shall be solely for the benefit of, and may be enforced solely by, the
parties hereto and their respective successors and assigns. None of the rights
or obligations of the Partners herein set forth to make Capital Contributions to
the Partnership shall be deemed an asset of the Partnership for any purpose by
any creditor or other third party, nor may such rights or obligations be sold,
transferred or assigned by the Partnership or pledged or encumbered by the
Partnership to secure any debt or other obligation of the Partnership or of any
of the Partners.
Section 16.4. EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected hereon as the
signatories.
Section 16.5. PROVISIONS SEPARABLE. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
Section 16.6. ENTIRE AGREEMENT. This Agreement (together with the Exhibit
and Schedules hereto) contains the entire understanding among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof. This Agreement may not be
modified or amended other than by an agreement in writing.
-64-
Section 16.7. PARAGRAPH HEADINGS. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
Section 16.8. GENDER, ETC. Words used herein, regardless of the number and
gender specifically 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 indicates is appropriate.
Section 16.9. NUMBER OF DAYS. In computing the number of days (other than
Business Days) for purposes of this Agreement, all days shall be counted,
including Saturdays, Sundays and holidays; PROVIDED, HOWEVER, that if the final
day of any time period falls on a date which is not a Business Day, then the
final day shall be deemed to be the next Business Day.
Section 16.10. PARTNERS NOT AGENTS. Nothing contained herein shall be
construed to constitute any Partner the agent of another Partner, except as
specifically provided herein, or in any manner to limit the Limited Partners in
the carrying on of their own respective businesses or activities.
Section 16.11. ASSURANCES. Each of the Partners shall hereafter execute and
deliver such further instruments and do such further acts and things as may be
reasonably required or useful to carry out the intent and purpose of this
Agreement and as are not inconsistent with the terms hereof.
Section 16.12. SUCCESSORS AND ASSIGNS. 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,
including any pledgee upon the foreclosure of any pledge of a Partner's
Partnership Interest in the Partnership.
Section 16.13. 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.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or
caused this Agreement to be executed on their behalf as of the date first above
written.
GENERAL PARTNER:
▇▇▇▇▇ HOTELS & CASINO RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President
and Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
LIMITED PARTNERS: (Addresses
are as set forth on Schedule I):
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ CASINOS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
▇▇▇▇▇ CASINOS II, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
THCR/LP CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III
Title: Assistant Treasurer
-▇▇-
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇ )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on October 7, 1996, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, an individual, who, I am satisfied, is the
person who has signed the within instrument on his own behalf, and I having
first made known to him the contents thereof he thereupon acknowledged that he
signed and delivered the said instrument in his personal capacity as an
individual, and that the within instrument is his voluntary act and deed.
/s/
-----------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on October 7, 1996, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, the Executive Vice President and Secretary
of ▇▇▇▇▇ Hotels & Casino Resorts, Inc., a Delaware 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.
/s/
-----------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on October 7, 1996, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the President of ▇▇▇▇▇ Casinos, 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.
/s/
-----------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on October __, 1996, before me, the subscriber,
personally appeared ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ III, the Assistant Treasurer of THCR/LP
Corporation, 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.
/s/
-----------------------------------------
Notary Public
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on October 7, 1996, before me, the subscriber,
personally appeared ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the President of ▇▇▇▇▇ Casinos II, 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.
/s/
-----------------------------------------
Notary Public
SCHEDULE I
AGGREGATE CAPITAL CONTRIBUTIONS*
PARTNER CONTRIBUTION PERCENTAGE INTEREST
------- ------------ -------------------
▇▇▇▇▇ Hotels & Casino Resorts, Inc. $683,659,153.00 59.87743% general partner
▇▇▇▇▇▇ ▇. ▇▇▇▇▇*** $309,013,680.00 27.06458%** limited partner
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇ Casinos, Inc.*** $ 42,210,510.00 3.69695% limited partner
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
THCR/LP Corporation $ 40,543,547.00 3.55096% limited partner
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇
▇▇▇▇▇ Casinos II, Inc.*** $ 66,337,500.00 5.81009% limited partner
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
---------------
* Aggregate contributions are based on a Common Stock market value of $30.00
per share, the value ascribed to the Common Stock pursuant to the terms of
the Castle Acquisition Agreement.
** Certificate No. 4 , 4-A and 4-B represent a 17.51675%, 0.01928% and 9.52854
percentage interest in the Partnership, respectively.
*** Notwithstanding anything to the contrary in this Agreement, for the
purposes of determining the voting power in THCR of the Class B Stock, (a)
Trump's Percentage Interest evidenced by certificates 4 and 4A and by
certificate 4B shall be evidenced by 800 shares and 50 shares of Class B
Stock, respectively, (b) TCI's Percentage Interest shall be evidenced by 50
shares of Class B Stock and (c) TCI-II's Percentage Interest shall be
evidenced by 100 shares of Class B Stock.
Dated: October 7, 1996
SCHEDULE II
CAPITAL CONTRIBUTIONS PRIOR TO APRIL 17, 1996
PARTNER CONTRIBUTION PERCENTAGE INTEREST
------- ------------ -------------------
▇▇▇▇▇ Hotels & Casino $140,933,338 60.15936% general partner
Resorts, Inc.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $ 93,333,333 39.84064% limited partner
Dated: October 7, 1996
SCHEDULE III
CAPITAL CONTRIBUTIONS IN CONNECTION WITH THE
TAJ MAHAL MERGER TRANSACTION
PARTNER CONTRIBUTION
------- ------------
▇▇▇▇▇ Hotels & Casino Resorts, Inc. $375,068,151.00
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $ 4,392.62
▇▇▇▇▇ Casinos, Inc. $ 43,921,854.66
THCR/LP Corporation $ 40,499,609.57
Dated: October 7, 1996
SCHEDULE IV
CAPITAL CONTRIBUTIONS IN CONNECTION WITH THE
CASTLE ACQUISITION*
PARTNER CONTRIBUTION
------- ------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ $108,793,500.00
▇▇▇▇▇ Casinos II, Inc. $ 66,337,500.00
---------------
* Capital contributions are based on a Common Stock market value of $30.00
per share, the value ascribed to the Common Stock pursuant to the terms of
the Castle Acquisition Agreement.
Dated: October 7, 1996