Sample Contracts - Agreement of Limited Partnership - Trump Hotels & Casino Resorts Holdings LP, Trump Hotels & Casino Resorts Inc., Donald J. Trump, TM/GP Corp. and Trump Taj Mahal Inc.

Sample Business Contracts

-------------------------------------------------------------------------------- SECOND AMENDED AND RESTATED ------ AGREEMENT OF LIMITED PARTNERSHIP OF TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P. -------------------------------------------------------------------------------- <PAGE> <TABLE> <CAPTION> TABLE OF CONTENTS ----------------- Page ---- <S> <C> ARTICLE I. DEFINITIONS................................................................................... 2 Section 1.1. Definitions............................................................................ 2 Section 1.2. Accounting Terms and Determinations.................................................... 16 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.............................................................. 17 Section 2.4. Location of Principal Place of Business................................................ 17 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.................................................... 21 Section 4.4. No Interest on or Return of Capital Contribution....................................... 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....................................................................... 26 Section 5.5. Tax Matters Partner.................................................................... 26 Section 5.6. Tax Elections and Returns.............................................................. 27 Section 5.7. Tax Certifications..................................................................... 28 ARTICLE VI. DISTRIBUTIONS................................................................................ 29 Section 6.1. General................................................................................ 29 Section 6.2. Distributions for Taxes................................................................ 29 Section 6.3. Other Distributions.................................................................... 30 Section 6.4. Withholding Payments Required By Law................................................... 30 Section 6.5. Non-Recourse........................................................................... 31 ARTICLE VII. RIGHTS, DUTIES AND RESTRICTIONS OF THE GENERAL PARTNER...................................... 32 Section 7.1. Powers and Duties of General Partner................................................... 32 Section 7.2. Major Decisions........................................................................ 35 Section 7.3. Reimbursement of the General Partner................................................... 36 Section 7.4. Outside Activities of the General Partner.............................................. 36 </TABLE> <PAGE> <TABLE> <S> <C> Section 7.5. Contracts with Affiliates.............................................................. 36 Section 7.6. Title to Partnership Assets............................................................ 37 Section 7.7. Reliance by Third Parties.............................................................. 37 Section 7.8. Liability of the General Partner....................................................... 38 Section 7.9. Officers of the Partnership............................................................ 38 Section 7.10. Covenants of THCR Regarding the Issuance of New Securities............................ 39 Section 7.11. Other Matters Concerning the General Partner.......................................... 39 ARTICLE VIII. DISSOLUTION, LIQUIDATION AND WINDING-UP.................................................... 40 Section 8.1. Accounting............................................................................. 40 Section 8.2. Distribution on Dissolution............................................................ 40 Section 8.3. Timing Requirements.................................................................... 40 Section 8.4. Documentation of Liquidation........................................................... 41 Section 8.5. Dissolution............................................................................ 41 Section 8.6. Continuation of the Partnership........................................................ 42 ARTICLE IX. TRANSFER AND REDEMPTION OF PARTNERSHIP INTERESTS; CERTAIN CONSENT RIGHTS..................... 42 Section 9.1. General Partner Transfer............................................................... 43 Section 9.2. Transfers by Limited Partners.......................................................... 44 Section 9.3. Certain Additional Restrictions on Transfer............................................ 46 Section 9.4. Effective Dates of Transfers........................................................... 47 Section 9.5. Transfer............................................................................... 48 Section 9.6. Redemption of Partnership Interest..................................................... 48 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....................................................... 49 Section 10.3. No Withdrawal......................................................................... 49 Section 10.4. Conflicts............................................................................. 50 Section 10.5. Provision of Information.............................................................. 50 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 </TABLE> (ii) <PAGE> <TABLE> <S> <C> ARTICLE XIV. CERTIFICATE OF INTEREST..................................................................... 61 Section 14.1. Form of Certificate of Interest....................................................... 61 Section 14.2. Transfers of Certificates of Interest................................................. 61 Section 14.3. Lost, Stolen, Destroyed or Mutilated Certificates of Interest......................... 61 Section 14.4. Inspection of Certificate Transfer Ledger............................................. 62 ARTICLE XV. REGULATORY REQUIREMENTS...................................................................... 62 Section 15.1. Applicable Regulatory Authority and CCC Regulation.................................... 62 Section 15.2. Additional Applicable Regulatory Authority Regulation................................. 63 Section 15.3. Disqualified Holders.................................................................. 63 ARTICLE XVI. GENERAL PROVISIONS.......................................................................... 64 Section 16.1. Notices............................................................................... 64 Section 16.2. Controlling Law....................................................................... 65 Section 16.3. No Third Party Beneficiaries.......................................................... 65 Section 16.4. Execution in Counterparts............................................................. 65 Section 16.5. Provisions Separable.................................................................. 65 Section 16.6. Entire Agreement...................................................................... 65 Section 16.7. Paragraph Headings.................................................................... 66 Section 16.8. Gender, Etc........................................................................... 66 Section 16.9. Number of Days........................................................................ 66 Section 16.10. Partners Not Agents.................................................................. 66 Section 16.11. Assurances........................................................................... 66 Section 16.12. Successors and Assigns............................................................... 66 Section 16.13. Waiver............................................................................... 66 </TABLE> Schedules --------- SCHEDULE I -- Aggregate Capital Contributions SCHEDULE II -- Capital Contributions Prior to April 16, 1996 SCHEDULE III -- Capital Contributions in connection with the Merger Transaction Exhibits -------- EXHIBIT A -- Form of Amended and Restated Exchange and Registration Rights Agreement (iii) <PAGE> 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. SECOND AMENDED AND RESTATED ------ AGREEMENT OF LIMITED PARTNERSHIP OF TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P. THIS SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP is made and entered into this __ day of April 1996, by and among Trump Hotels & Casino Resorts, Inc., a Delaware corporation ("THCR"), Donald J. Trump ("Trump" ---- ----- or the "Initial Limited Partner"), TM/GP Corporation, a New Jersey corporation ----------------------- ("TM/GP"), Trump Taj Mahal, Inc., a New Jersey corporation ("TTMI"), 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 Trump 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; and WHEREAS, effective on the date hereof, THCR Merger Corp., a wholly owned subsidiary of THCR, will merge (the "Merger") with and into Taj Mahal Holding Corp. ("Taj Holding"), the owner of a 50% equity interest in Trump Taj Mahal Associates ("Taj Associates"); and WHEREAS, THCR desires to contribute its 50% equity ownership interest in Taj Associates acquired in the Merger, which is held through THCR's wholly owned subsidiaries Taj Holding and TM/GP, to Trump Atlantic City Associates ("Trump AC"), a wholly owned subsidiary of the Partnership (on behalf, and at the direction, of the Partnership); and WHEREAS, Trump desires to contribute his 50% equity ownership interest in Taj Associates, including his interest in Taj Associates held through TTMI, a corporation wholly owned by Trump, to Trump AC (on behalf, and at the direction, of the Partnership); and <PAGE> WHEREAS, effective on the date hereof, TM/GP and TTMI are being admitted to the Partnership as Limited Partners; 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 Arthur Andersen 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 to restore with respect to any deficit balance in such Capital Account pursuant to Section 1.704-1(b)(2)(ii)(c) of the -2- <PAGE> 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 Second 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 or the commencement of any such case or proceeding against such Person, unless such petition and the case or proceeding initiated -3- <PAGE> 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 Treasury 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. ------- "CCC" shall mean the New Jersey Casino Control Commission and any --- successor agency. "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 -4- <PAGE> 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 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. "Damages" shall have the meaning set forth in Section 11.1(a). ------- -5- <PAGE> "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. "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. "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, -6- <PAGE> 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 Amended and Restated ------------------------- Exchange and Registration Rights Agreement, substantially in the form of Exhibit A hereto, to be entered into by and among Trump, TTMI 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 Trump Executive Agreement, by and ------------------- between Trump and the Partnership, 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. "Gary Riverboat" shall mean a riverboat or dockside gaming facility -------------- and the ancillary structures and other -7- <PAGE> facilities used in connection with the operation thereof located in Gary, Indiana. "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 [(and, for purposes of this definition, of Taj Holding and TM/GP)], 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 (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: -8- <PAGE> (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 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. -9- <PAGE> "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 Act" shall mean the Indiana Riverboat Gambling --------------------- Act, Ind. Code (S) 4-33-1-1 et seq. -- ---- "Initial Limited Partner" shall have the meaning set forth in the ----------------------- Introduction 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. "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, -10- <PAGE> 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. "Merger" shall have the meaning set forth in the Introduction to ------ this Agreement. "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 (S) 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 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 -11- <PAGE> 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, however, that New Securities shall not include Class B Stock and Common Stock issued by THCR prior to the date of this Agreement, the Common Stock issued by THCR on or prior to the date of this Agreement (Registration No. 333-639) or a Registration Statement on Form S-4 (Registration No. 333-153), or the Mortgage Notes to be issued by Trump AC and Trump Atlantic City Funding, Inc. and guaranteed by Plaza Associates, Taj Associates and The Trump Taj Mahal Corporation pursuant to a Registration Statement on Form S-1 (Registration No. 333-643). "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. "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. -12- <PAGE> "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, TTMI shall be deemed to be a Permitted Holder of Trump. "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. "Permitted Partners" shall have the meaning set forth in Section ------------------ 5.1(b)(ii). "Person" shall mean any natural person or Entity. ------ "Redemption Date" shall mean the date fixed by the General Partner for --------------- the redemption of any Partnership Interests pursuant to Article XV. -13- <PAGE> "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). "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 Trump or any of his Affiliates; provided that a director shall not be deemed to be an Affiliate of either Trump 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. "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 mean Trump Taj Mahal Associates, a New Jersey -------------- general partnership. -14- <PAGE> "Taj Holding" shall mean Taj Mahal Holding Corp., a Delaware ----------- corporation. "Taj Mahal" shall mean the Trump Taj Mahal Casino Resort and the --------- ancillary structures and other facilities used in connection with the operation thereof located in Atlantic City, New Jersey. "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 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 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 Partnership 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); 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. -15- <PAGE> "THCR" shall mean Trump Hotels & Casino Resorts, Inc., a Delaware ---- corporation. "TM/GP" shall mean TM/GP 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). "Trump" shall have the meaning set forth in the Introduction to ----- this Agreement. "Trump AC" shall mean Trump Atlantic City Associates, a New -------- Jersey general partnership. "Trump Plaza" shall mean the Trump Plaza Hotel and Casino and the ----------- ancillary structures and other facilities used in connection with the operation thereof located in Atlantic City, New Jersey. "TTMI" shall mean Trump Taj Mahal, Inc., a New Jersey corporation. ---- "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. -16- <PAGE> 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. ---- Subject to the provisions of paragraph (b) below, the name of the Partnership shall be Trump 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 Trump participates in the control of the business within the meaning of Section 17-303 of the Act or any comparable provision. 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. 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) Trump Plaza, (ii) the Taj Mahal, (iii) the Gary Riverboat, and (iv) 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 Mississippi Avenue and The Boardwalk, Atlantic City, New Jersey 08401, 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 -17- <PAGE> office of the Partnership in the State of Delaware shall be 1209 Orange Street, Wilmington, Delaware or such other location as the General Partner may from time to time select in its sole discretion. ARTICLE III ----------- TERM ---- Section 8. Commencement. The Partnership's term commenced upon the ------------ filing of the Certificate with the Secretary of State of Delaware on March 28, 1995. Section 9. 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 -------- CAPITAL CONTRIBUTIONS --------------------- Section 10. Capital Contributions; Partnership Interests and ------------------------------------------------ Percentage Interests of the Partners. ------------------------------------ (a) Prior to the date hereof, 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. Effective as of the date hereof, the General Partner and the Limited Partners (including TM/GP and TTMI) shall make or cause to be made the Capital Contributions set forth opposite their respective names on Schedule III hereto, and TM/GP and TTMI shall become Limited Partners of the Partnership. The General Partner and the Initial Limited Partner hereby consent, notwithstanding any provision in the Agreement to the contrary, to the admission of TM/GP and TTMI as Limited Partners. Reflective of the Capital Contributions set forth in Schedules II and III, the Partners shall have made or caused to be made as of the date hereof the Capital Contributions, and shall have the Percentage Interests in the Partnership, as set forth in Schedule I hereto, 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 -18- <PAGE> 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 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 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, TM/GP, the Initial Limited Partner and his Permitted Holders, and TTMI, 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 -19- <PAGE> 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 (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 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; -20- <PAGE> (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. 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. -21- <PAGE> 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 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: -22- <PAGE> (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. (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. -23- <PAGE> (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 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 -24- <PAGE> 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). Property contributed to ------------------------------------- the Partnership shall be subject to Section 704(c) of the Code and Regulation Section 1.704-3 so that 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. For the purpose of allocating Tax Items, the Partnership shall apply the "ceiling rule" set forth in Regulation Section 1.704-3, the effect of which will not be subject to cure by special allocation except as specifically provided in the next sentence of this Section 5.3(c). Notwithstanding the foregoing, tax depreciation and amortization with respect to Partnership property contributed by the Initial Limited Partner pursuant to the Contribution Agreement between the Partnership and the Initial Limited Partner, dated as of June 12, 1995, 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 all such Partnership properties determined as of June 12, 1995 (and not taking into account (i) any increase in the basis of such properties resulting from improvements thereon made by the Partnership subsequent to June 12, 1995 or (ii) any additional basis resulting from any new property purchased by the Partnership in a taxable transaction subsequent to June 12, 1995); provided, however, that the General Partner shall not specially allocate any Tax Items related to the Partnership properties described in this sentence, other than the items of depreciation and amortization referred to in this sentence, to cure for the effect of the ceiling rule set forth in Regulation Section 1.704-3(b). 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 -25- <PAGE> 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. 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 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. -26- <PAGE> 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 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, Trump 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 the date hereof, including requiring the Partnership, Trump AC and Taj 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 -27- <PAGE> 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 Trump AC. 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 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 21. 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 6.1. 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 -28- <PAGE> 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 "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. ------------------------------------ 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 -29- <PAGE> 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 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 -30- <PAGE> 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. 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 -31- <PAGE> 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; (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 hedges) 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; -32- <PAGE> (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 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, sue 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 -33- <PAGE> 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 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 -34- <PAGE> (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. ------------------------------------ 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 payments from, or be compensated for its services as general partner of, the Partnership. 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 avai