Partnership Agreement - Trump Atlantic City Associates, Trump Hotels & Casino Resorts Holdings LP and Trump Plaza Holding Inc.
AMENDED AND RESTATED PARTNERSHIP AGREEMENT
OF TRUMP ATLANTIC CITY ASSOCIATES
AMENDED AND RESTATED PARTNERSHIP AGREEMENT made this ___ day of April,
1996 by and between TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P., a Delaware
limited partnership having an address at Mississippi Avenue and The Boardwalk,
Atlantic City, New Jersey 08401 ("Holdings"), and TRUMP PLAZA HOLDING, INC., a
corporation organized under the laws of the State of Delaware having an address
at Mississippi Avenue and the Boardwalk, Atlantic City, New Jersey 08401
("TPHI"). Holdings and TPHI are sometimes hereinafter individually referred to
as a "Partner" and collectively as "Partners."
WITNESSETH:
WHEREAS, Donald J. Trump ("Trump") and TPHI, as general partners,
formed Trump Plaza Holding Associates (the "Partnership") by entering into the
Partnership Agreement of the Partnership under the laws of the State of New
Jersey on February 17, 1993, and amended such agreement on June 3, 1993 (said
Partnership Agreement, as so amended, is referred to herein as the "Original
Agreement"); and
WHEREAS, on June 12, 1995, Trump contributed
his 99% general partnership interest in the Partnership to Holdings; and
WHEREAS, Trump, TPHI and Holdings entered into Amendment No. 2 to
Partnership Agreement of Trump Plaza Holding Associates ("Amendment No. 2") on
June 12, 1995 to provide for Trump's withdrawal as a general partner of the
Partnership and Holdings' admission as a 99% general partner in the Partnership;
and
WHEREAS, TPHI and Holdings entered into Amendment No. 3 to Partnership
Agreement of Trump Plaza Holding Associates ("Amendment No. 3"; the Original
Agreement as amended by Amendment No. 2 and as further amended by Amendment No.
3 is referred to herein as the "Prior Agreement") to provide for the change of
the Partnership's name to Trump Atlantic City Associates; and
WHEREAS, TPHI and Holdings desire to amend and restate in its entirety
the Prior Agreement and to set forth their respective rights and obligations as
Partners of the Partnership;
NOW, THEREFORE, TPHI and Holdings agree that the Prior Agreement is
hereby amended and restated in its entirety effective as of the date hereof and
that the Partnership is hereby continued as a general partnership on the terms
and conditions set forth herein, and further agree as follows:
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1. DEFINITIONS.
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1.1 CERTAIN DEFINITIONS. In addition to the other terms defined
elsewhere herein, the following terms shall have the respective meanings set
forth below:
"Accountants" means the national firm or firms of independent
certified public accountants selected by the Managing 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.
"Additional Distributions" means distributions by the Partnership
pursuant to Section 10.3 hereof.
"Affiliate" means, with respect to any Person, any Person that
directly or indirectly through one or more intermediaries controls or is
controlled by or under common control with the specified Person.
"Bankruptcy" means, 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 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.
"Business Day" means a day other than a Saturday or Sunday or other
day on which banks are authorized or required by law to close in the City of New
York.
"Capital Account" means, with respect to any Partner, the separate
"book" account which the Partnership shall establish and maintain for such
Partner in accordance with Section 704 (b) of the Code and the Regulations
promulgated thereunder. In the event that a Partnership Interest is transferred
in accordance with the terms of this Agreement, the Capital Account, at the time
of the transfer, of the transferor attributable to the transferred interest
shall carry over to the transferee.
"Capital Contribution" means, with respect to any Partner, the initial
Gross Asset Value of any Contributed Property (net of liabilities to which such
property is subject) set forth in Section 8, as such Capital Account will be
amended from time to
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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.
"Casino Control Act" means the New Jersey Casino Control Act and the
regulations thereunder.
"Code" means the Internal Revenue Code of 1986, as amended and in
effect from time to time, as interpreted by the applicable regulations
thereunder. Any reference herein to a specific section or sections of the Code
shall be deemed to include a reference to any corresponding provision of future
law.
"Commission" means the New Jersey Casino Control Commission.
"Depreciation" means, 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
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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.
"Entity" means any general partnership, limited partnership, limited
liability company, corporation, joint venture, trust, business trust, real
estate investment trust, association or other entity.
"Gross Asset Value" means, 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.
(b) the Gross Asset Values of all Partnership assets shall be
adjusted to equal their respective gross Fair Market Values:
(i) immediately prior to a Capital Contribution (other than a de
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minimis Capital Contribution) to the Partnership by a new or existing
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Partner as consideration for a Partnership Interest;
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(ii) immediately prior to the distribution by the Partnership to
a Partner of more than a de minimis amount of Partnership property as
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consideration for the redemption of a Partnership Interest;
(iii) immediately prior to the liquidation of the Partnership to
a Partner of more than a de minimis amount of Partnership property as
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consideration for the redemption of a Partnership Interest; and
(iv) upon any other event as to which the Managing 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
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adjusted pursuant to this paragraph to the extent that the Managing 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.
"Indebtedness" means 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
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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.
"Managing Partner" means Holdings.
"Net Income" or "Net Loss" means, 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 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.
"Nonrecourse Deductions" shall have the meaning set forth in
Sections 1.704-2(b)(1) and (c) of the Regulations.
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"Nonrecourse Liabilities" shall have the meaning set forth in Section
1.704-2(b)(3) of the Regulations.
"Partner" means each of TPHI or Holdings, their duly admitted
successors and assigns or any Person who is a partner of the Partnership at the
time of reference thereto.
"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.
"Partnership Interest" means any interest of TPHI or Holdings or any
Transferee in the Partnership, including the right of such Partner to benefits
to which it may be entitled under, and the obligations of such Partner to comply
with, all the terms and provisions of this Agreement.
"Partnership Minimum Gain" shall have the meaning set forth in Section
1.704-2(b)(2) of the Regulations.
"Percentage Interest" means, 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,
initially 1% for TPHI and 99% for Holdings, subject to appropriate adjustment in
accordance with the provisions hereof.
"Person" means any natural person or Entity.
"Pledge Agreement" means the pledge agreement dated June 12, 1995 from
the Partnership, as pledgor, to First Bank National Association, as collateral
agent, securing the Senior Secured Notes due 2005 of Holdings and Trump Hotels &
Casino Resorts Funding, Inc., as joint obligors.
"Profits" and "Losses" means, for each fiscal year or other period, an
amount for such year or period determined in the manner prescribed in Code
Section 703(a) (including separately state items), (i) using the tax accounting
methods used for Federal income tax purposes, (ii) adding any tax-exempt income
and subtracting any deductions or expenditures described in or treated as
expenditures under Code Section 705(a)(2) not otherwise taken into account,
(iii) reflecting the book adjustment of the Capital Accounts as initially
reflected in Article 8 hereof and as prescribed in Regulations under Code
Section 704(b) and (c), and (iv) taking into account any amounts or items of
income or expense specially allocated pursuant to Section 9.
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"Regulations" means the income tax regulations promulgated under the
Code, as such regulations may be amended from time to time (including
corresponding provisions of succeeding regulations).
"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 Managing 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 Managing 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" means distributions by the Partnership pursuant to
Section 10.2 hereof.
"Tax Items" shall have the meaning set forth in Section 9.3(a).
"Tax Payment Loan" shall have the meaning set forth in Section 10.4(a)
hereof.
"Tax Percentage" means 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 Managing Partner by the Accountants); provided, however,
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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.
"Transferee" means each Person who pursuant to Article 11 hereof or
otherwise acquires a Partnership Interest from a Partner or a Transferee
thereof.
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"Withholding Tax Act" shall have the meaning set forth in Section
10.4(a) hereof.
1.2 ACCOUNTING TERMS AND DETERMINATIONS. All references in this
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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.
2. NAME. The name of the Partnership is Trump Atlantic City
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Associates (the "Partnership").
3. PURPOSE. The character of the Partnership's business is (i) to
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own and operate Trump Plaza Hotel and Casino in Atlantic City, New Jersey and
conduct casino gaming, (ii) to own and operate the Trump Taj Mahal Casino Resort
in Atlantic City, New Jersey and conduct casino gaming, (iii) to own and operate
such other gaming properties and facilities as the Partnership may acquire, and
(iv) to do all things necessary, incidental, desirable or appropriate in
connection with the foregoing.
4. PLACE OF BUSINESS. The principal place of business of the
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Partnership in the State of New Jersey shall be Mississippi Avenue and The
Boardwalk, Atlantic City, New Jersey 08401.
5. PARTNERS. The name and place of residence of the General
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Partners interested in the Partnership is as follows:
Trump Hotels & Casino Resorts Trump Plaza Holding, Inc.
Holdings, L.P. Mississippi Avenue and
Mississippi Avenue and The Boardwalk
The Boardwalk Atlantic City, N.J. 08401
Atlantic City, N.J. 08401
6. MANAGING PARTNER. All decisions affecting the business and
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affairs of the Partnership, including, but not limited to the financing,
refinancing, sale, management or leasing of any Partnership property, or any
part thereof, the acquisition, development, financing, sale or leasing of other
property and all matters arising under this Agreement shall be decided by
Holdings, which shall act as the Managing Partner of the Partnership.
7. TERM. The term for which the Partnership is to exist is to the
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close of business on the 31st day of December, 2030, unless sooner terminated
pursuant to Section 13.1 hereof.
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8. CAPITAL ACCOUNTS. The capital account as of the date of this
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Agreement of each Partner is as follows:
Holdings $____________
TPHI $____________
No interest shall be paid by the Partnership on balances in Capital Accounts nor
shall any other funds be distributed or distributable, except as provided in
this Agreement.
9. ALLOCATIONS AND OTHER TAX AND ACCOUNTING MATTERS.
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The Net Income, Net Loss and/or other Partnership items shall be
allocated as follows:
9.1 ALLOCATIONS OF NET INCOME AND NET LOSS.
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(a) NET INCOME. Except as otherwise provided herein, Net Income for
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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
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Partnership for each fiscal year or other applicable period shall be allocated
to the Partners in accordance with their respective Percentage Interests.
9.2 SPECIAL ALLOCATIONS. Notwithstanding any provisions of
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Section 9.1, the following special allocations shall be made, to the least
extent necessary to satisfy section 704(b) of the Code and the Regulations
promulgated thereunder, in the following order:
(a) MINIMUM GAIN CHARGEBACK (NONRECOURSE LIABILITIES). If there is a
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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
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(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 those 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
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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 in come 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) NONRECOURSE DEDUCTIONS. Nonrecourse Deductions for any fiscal
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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.
(d) PARTNER NONRECOURSE DEDUCTIONS. Partner Nonrecourse Deductions
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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)).
(e) ADDITIONAL ALLOCATIONS. Notwithstanding the foregoing, if, upon
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final dissolution and termination of the Partnership and after taking into
account all allocations of Net
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Income and Net Loss (and other Tax Items) under this Section 9, 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 10.3 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 10.3 hereof.
9.3 TAX ALLOCATIONS.
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(a) GENERALLY. Subject to paragraphs (b) and (c) hereof, items of
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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
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basis as their respective book items.
(b) SECTIONS 1245/1250 RECAPTURE. If any portion of gain from the
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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
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extent that the tax treatment of such sale is governed by Section 704(c) of the
Code as provided under Section 9.3(c) hereof, then (i) such Affected Gain, to
the extent attributable to depreciation or amortization allowed or allowable for
any taxable period subsequent to the date hereof, shall be allocated among the
Partners in the same proportion that the depreciation and amortization
deductions giving rise to the Affected Gain were allocated and (ii) other Tax
Items of gain of the same character that would have been recognized, but for the
application of Code Sections 1245 and/or 1250, shall be allocated away from
those Partners who are allocated Affected Gain pursuant to clause (i) so that,
to the extent possible, the other Partners are allocated the same amount, and
type, of capital gain that would have been allocated to them had Code Sections
1245 and/or 1250 not applied. For purposes hereof, in order to determine the
proportionate allocations of depreciation and amortization deductions for each
fiscal year or other applicable period, such deductions shall be deemed
allocated on the same basis as Net Income or Net Loss for such respective
period.
(c) ALLOCATIONS RESPECTING SECTION 704(C). Property contributed to
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the Partnership shall be subject to Section 704(c) of the Code and Regulation
Section 1.704-3 so that notwithstanding Section 9.2 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
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promulgated thereunder. For the purpose of allocating Tax Items, the
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Partnership shall apply the "ceiling rule" set forth in Regulation Section
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1.704-3, the effect of which will not be subject to cure by special allocation.
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The Partnership shall allocate items of income, gain, loss and deduction
allocated to it by a partnership to the Partner or Partners contributing the
interest or interests in such partnership, so that, to the greatest extent
possible and consistent with the foregoing, such contributing Partner or
Partners are allocated the same amount and character of items of income, gain,
loss and deduction with respect to such partnership that they would have been
allocated had they contributed undivided interests in the assets owned by such
partnership to the Partnership in lieu of contributing the interest or interest
in the partnership to the Partnership.
9.4 BOOKS OF ACCOUNT. At all times during the continuance of
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the Partnership, the Managing 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.
9.5 TAX CERTIFICATIONS.
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(a) The Partnership shall deliver to each Partner, 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) thereof shall
be deemed approved by all parties and the Partnership shall act upon such
certificate 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.
10. DISTRIBUTIONS.
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10.1 GENERAL. Distributions of cash or property may be made in
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accordance herewith at such times as the Managing Partner deems appropriate in
the order provided in this Section 10, subject to the limitations, if any, set
forth in the agreements
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governing the Partnership's Indebtedness, including the indenture governing the
Partnership's and Trump Atlantic City Funding, Inc.'s First Mortgage Notes due
2006 and ancillary documents relating thereto.
10.2 DISTRIBUTIONS FOR TAXES.
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(a) The Partnership shall distribute to each Partner in one or more
payments, including payments described in paragraph (b) from time to time during
each year, but in no event later than March 1 of the year immediately following
such year, an aggregate cash sum equal to the product of (i) Tax Amounts in
respect of the taxable year, or portion thereof, for which such distribution is
being made and (ii) the Partner's Percentage Interest. In addition, the
Partnership shall make additional pro rata distributions as are necessary to
reflect adjustments, as determined in good faith by the board of directors of
the General Partner, to any item affecting Tax Amounts, as reflected on the
Partnership's tax return, as it may be amended from time to time, or as a result
of a concluded tax audit.
(b) In addition to the certificates required by Section 9.5, 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 9.6, 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 10.2 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
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Partner out of amounts distributed pursuant to this Section 10.2 promptly after
receipt of such refund.
10.3 OTHER DISTRIBUTIONS. After payments and distributions, if
-------------------
any, of the amounts set forth in Section 10.2 above, the Partnership may
distribute, in the discretion of the Managing Partner, cash or other property,
valued at its Fair Market Value, to the Partners. Any such distributions shall
be made (i) first in proportion to, and to the extent of their then positive
Capital Account balances and (ii) then in accordance with their Percentage
Interests.
10.4 WITHHOLDING PAYMENTS REQUIRED BY LAW.
------------------------------------
(a) Unless treated as a Tax Payment Loan (as hereinafter defined), any
amount paid by the Partnership for or with respect to any Partner on account of
any withholding tax or other tax payable with respect to the income, profits or
distributions of the Partnership 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 10.4(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 that 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
10.4(a) (the "Tax Payment Loan Date") and provide such Partner the opportunity
to pay to the Partnership, on
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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 provision of any
Withholding Tax Act applicable to the Partnership and to carry out the
provisions of this Section 10.4. Nothing in this Section 10.4 shall create any
obligation on the General Partner to advance funds to the Partnership or to
borrow funds from third parties in order to make any payments on account of any
liability of the Partnership under a Withholding Tax Act.
(c) In the event that a Tax Payment Loan is not paid by a Limited
Partner within thirty (30) days after written demand therefor is made by the
General Partner, the General Partner may cause all distributions that would
otherwise be made to such Limited Partner to be retained by the Partnership, up
to the amount necessary to repay such Tax Payment Loan, including all accrued
and unpaid interest thereon, and such retained distributions shall be applied
against, first, the accrued interest on and, second, the principal of, such Tax
----- ------
Payment Loan.
10.5 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.
11. TRANSFERS AND WITHDRAWAL.
------------------------
11.1 SALE AND TRANSFER OF PARTNERSHIP INTERESTS. No Partnership
------------------------------------------
Interest or any portion thereof may be sold or otherwise transferred, whether by
gift, pledge, by operation of law or otherwise, including any transfer upon
liquidation and dissolution (but excluding all transfers upon or by reason of
death), unless (x) the transfer and the Transferee are approved in advance by
all the Partners, except with respect to any transfer resulting from exercise of
any rights under the Pledge Agreement, (y) the transfer and the Transferee are
approved by the Commission and (z) the Transferee becomes a party to this
Agreement and assumes all of the obligations hereunder of its transferor and
agrees to be bound by the terms and conditions hereof in the same manner as its
transferor in each case to the extent of the Partnership Interest transferred.
Each Transferee shall have all rights hereunder as given to the original party
hereto or subsequent transferee thereof. The foregoing notwithstanding, no
transfer of a Partnership Interest (other than a transfer upon the exercise of
any rights under the Pledge Agreements) shall be effective if, in the opinion of
counsel to the Partnership, such transfer, when added to the total of all other
Partnership
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<PAGE>
Interests transferred within the period of 12 consecutive months prior to the
proposed date of transfer, would result in a termination of the Partnership
under Section 708 of the Code or that would cause the Partnership to be treated
as a "publicly-traded partnership" under the Code.
12. BOOKS AND RECORDS.
-----------------
12.1 COMPLETE BOOKS. At all times during the continuance of the
--------------
Partnership, the Partnership shall keep or cause to be kept full and complete
books of account in which shall be entered fully and accurately each transaction
of the Partnership, including the Capital Accounts of the Partners.
12.2 METHOD OF RECORDKEEPING. All of the Partnership's books of
-----------------------
account shall at all times be maintained at the principal office of the
Partnership and shall be open to the inspection and examination of the Partners
or their representatives during reasonable hours. All books and records of the
Partnership shall be kept on an accrual basis of accounting with an annual
accounting period ending December 31, except for the final accounting period
which shall end on the date of the final dissolution or termination of the
Partnership. All references in this Agreement to a "fiscal year" are to such an
annual accounting period.
12.3 TAX INFORMATION. The Partnership shall be treated as a
---------------
Partnership for federal and state income tax and franchise tax purposes;
accordingly, the Partnership shall cause to be prepared and filed on or before
the due date annually a United States Partnership Return of Income and any
necessary state income and franchise tax returns on a partnership basis. Such
returns shall be submitted to the Partners for review no later than the tenth
Business Day prior to the date on which such return is due, as such date may be
extended as the result of any extension obtained. Each Partner shall notify the
other Partners upon receipt of any notice of any tax examination by any federal,
state or local authority pertaining to the Partnership or the other Partners.
No settlement of any tax issue concerning or having an effect upon the
Partnership shall be made by any Partner except upon the approval of the tax
matters partner, designated pursuant to Section 14.12.
12.4 INDEPENDENT ACCOUNTANTS. The accountants for the
-----------------------
Partnership shall be Arthur Andersen LLP or such other nationally recognized
firm of certified public accountants as determined by the Managing Partner.
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13. DISSOLUTION, LIQUIDATION AND WINDING-UP.
---------------------------------------
13.1 ACCOUNTING. In the event of the dissolution, liquidation
----------
and winding-up of the Partnership, a proper accounting shall be made of the
Capital Account of each Partner and of the Net Income or Net Loss of the
Partnership from the date of the last previous accounting to the date of
dissolution.
13.2 DISTRIBUTION ON DISSOLUTION. In the event of the
---------------------------
dissolution and liquidation of the Partnership for any reason, the assets of the
Partnership shall be liquidated for distribution in the following rank and
order:
(a) Payment of creditors of the Partnership, other than
creditors who are Partners;
(b) Payment of creditors of the Partnership who are
Partners;
(c) Establishment of reserves to provide for contingent
liabilities, if any; and
(d) To the Partners in accordance with the positive balances
in their Capital Accounts after giving effect to all contributions,
distributions and allocations for all periods.
13.3 TIMING REQUIREMENTS.
-------------------
(a) In the event that the Partnership is "liquidated" within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, any and all
distributions to the Partners pursuant to Section 13.2(d) hereof shall be made
no later than the later to occur of (i) the last day of the taxable year of the
Partnership in which such liquidation occurs or (ii) ninety (90) days after the
date of such liquidation.
(b) Notwithstanding the provisions of Section 13.2 hereof which
require liquidation of the assets of the Partnership, but subject to the order
of priorities set forth therein, if prior to or upon dissolution of the
Partnership the Partners determine that an immediate sale of part or all of the
Partnership's assets would be impractical or would cause undue loss to the
Partners, the Partners may defer for a reasonable time the liquidation of any
assets except those necessary to satisfy liabilities of the Partnership.
13.4 DISSOLUTION. The Partnership shall be dissolved upon the
-----------
occurrence of any of the following events:
(a) the dissolution, liquidation, termination, withdrawal, death,
insanity, retirement or Bankruptcy of a Partner
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or other event causing dissolution under the New Jersey Uniform Partnership Law;
(b) the election to dissolve the Partnership made in writing by the
Partners;
(c) the sale or other disposition of all or substantially all of the
assets of the Partnership unless the Partners elect to continue the Partnership
business for the purpose of the receipt and the collection of indebtedness or
the collection of any other consideration to be received in exchange for the
assets of the Partnership (which activities shall be deemed to be part of the
winding-up of the affairs of the Partnership); or
(d) the entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the New Jersey Uniform Partnership Law, which
decree is final and not subject to appeal.
Following an event causing a dissolution of the Partnership, the
Partnership shall be wound-up and terminated unless the business of the
Partnership is continued by the Partnership in reconstituted form pursuant to
Section 13.5.
13.5 CONTINUATION OF THE PARTNERSHIP. Upon the Bankruptcy,
-------------------------------
dissolution, liquidation, withdrawal, death, retirement or insanity of any
Partner, or any other event of dissolution under the New Jersey Uniform
Partnership Law, within 90 days thereafter, all of the remaining Partners may
elect to reconstitute the Partnership and continue its business.
14. MISCELLANEOUS.
-------------
14.1 AMENDMENTS. This Agreement may be amended, modified or
----------
cancelled, and the terms and conditions hereof may be waived, only by a written
instrument signed by each of its Partners.
14.2 COUNTERPARTS. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed as original, but all of which
together shall constitute one and the same instrument.
14.3 FURTHER ASSURANCES. Each of the Partners hereby agrees to
------------------
execute and deliver all such other and additional instruments and documents and
to do such other acts and things as may be necessary to more fully effectuate
this Partnership, carry on the Partnership's business and effectuate this
Agreement.
14.4 VARIATIONS OF PRONOUNS. All pronouns and all variations
----------------------
thereof shall be deemed to refer to the masculine,
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<PAGE>
feminine or neuter, singular or plural, as the identity of the Person may
require.
14.5 NON-WAIVER. No delay on the part of any party in exercising
----------
any right hereunder shall operate as a waiver thereof, nor shall any waiver,
express or implied, by any Partner of any right hereunder or of any failure to
perform or breach hereof by any other Partner constitute or be deemed a waiver
of any other right hereunder or of any other failure to perform or breach hereof
by the same or any other Partner, whether or a similar or dissimilar nature
thereof.
14.6 SURVIVAL OF RIGHTS, DUTIES AND OBLIGATIONS. Termination of
------------------------------------------
the Partnership for any cause shall not release any party from any liability
which at the time of termination had already accrued to any other party or which
thereafter may accrue in respect of any act or omission prior to such
termination.
14.7 SEVERABILITY. Any provision of this Agreement that is
------------
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provisions in any other jurisdiction.
14.8 GOVERNING LAW. This Agreement shall be governed by and
-------------
construed in accordance with the laws of the State of New Jersey regardless of
the laws that might otherwise under applicable principles of conflict of laws
thereof.
14.9 CASINO CONTROL COMMISSION REGULATION. Notwithstanding
------------------------------------
anything to the contrary contained herein, this Agreement will be deemed to
include all provisions required by the Casino Control Act and to the extent that
anything contained herein is inconsistent therewith, the provisions of the
Casino Control Act shall govern. All provisions of the Casino Control Act, to
the extent required by law to be included in this Agreement, are incorporated
herein by reference as if fully restated herein.
All securities (as such term is defined in the Casino Control Act) of
the Partnership are held subject to the condition that, as of the date the New
Jersey Casino Control Commission (the "Commission") serves notice of its
determination of disqualification of a holder thereof, such holder shall (a) not
receive any dividends or interest upon any such securities; (b) not exercise,
directly or through any trustee or nominee, any voting right conferred by such
securities; and (c) not receive any remuneration in any form from Trump Plaza
Associates, a New Jersey general partnership ("TPA"), in which the Partnership
holds a partnership interest, or Trump Taj Mahal Associates, a New Jersey
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general partnership ("TTMA"), in which the Partnership holds a partnership
interest for services rendered or otherwise.
All transfers (as defined by the Casino Control Act) of non-publicly
traded securities (as defined by the Casino Control Act), shares and other
interests in the Partnership shall be subject to the right of prior approval by
the Commission. The Partnership shall have the absolute right to repurchase at
the market price or purchase price, whichever is the lesser, any security, share
or other interest in the Partnership in the event that the Commission
disapproves a transfer in accordance with the provisions of the Casino Control
Act.
Any publicly traded securities of the Partnership are held subject to
the condition that, if a holder thereof is found to be disqualified by the
Commission, such holder shall dispose of its, his or her interest in the
Partnership. If any unsuitable or disqualified holder fails to dispose of its,
his or her Securities, within 180 days following each disqualification:
(i) such publicly traded securities shall be subject to redemption by
the Partnership, if in the judgment of the Managing Partner such action should
be taken, to the extent necessary to prevent the loss or secure the
reinstatement of any government-issued license or franchise held by TPA, TTMA,
the Partnership or any subsidiary thereof, to conduct any portion of the
business of TPA, TTMA, the Partnership or such subsidiary, which license or
franchise is conditioned upon some or all of the holders of the Partnership's
securities possessing prescribed qualifications, and
(ii) such unsuitable or disqualified holder shall indemnify the
Partnership for any and all direct or indirect costs, including attorneys' fees,
incurred by the Partnership as a result of such holder's continuing ownership or
failure to divest promptly.
The redemption price for all publicly traded securities, including the
Securities, to be redeemed by the Partnership pursuant to this Section 14.9
shall be equal to:
(a) the mean of the average closing sales prices for the thirty
trading days immediately prior to the date of determination of such value on the
largest national securities exchange on which such securities shall have traded
on such trading days,
(b) if no such sales of such securities occurred during such thirty-
day period or if the securities are not so listed but are traded in the over-
the-counter market the quotations available in the National Association of
Securities
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<PAGE>
Dealers Automated Quotation System ("NASDAQ"), the mean between the "bid" and
"asked" prices on such national securities exchange or as quoted in NASDAQ, as
the case may be, during such thirty-day period, or
(c) if (a) or (b) above do not apply, at a redemption price equal to
the fair value of such securities as determined by the Managing Partner (such
determinations to be conclusive and binding on all parties).
Notwithstanding the preceding paragraph, with respect to such publicly
traded securities, including the Securities, held in an interim casino
authorization trust which the Commission has ordered to become operative:
(a) during the time such trust is operative, the holder may not
participate in the earnings of the casino hotel or receive any return on its
investment or debt security holdings; and
(b) after disposition of the securities by the trustee of the interim
casino authorization trust, proceeds distributed to an unqualified former holder
of same may not exceed the lower of their actual cost to the unqualified holder
or their value calculated as if the investment had been made on the date the
trust became operative.
14.10 CERTIFICATE OF INTEREST. Notwithstanding anything to the contrary
-----------------------
contained in this Agreement:
(i) The interest of each Partner in the Partnership shall be evidenced
by a Certificate of Interest. The Certificates of Interest in the Partnership,
together with a Certificate Transfer Ledger, shall be maintained at the
principal office of the Partnership. Each such Certificate shall be serially
numbered and shall be issued by, or at the written direction of, each of the
General Partners to the lawful holder of an interest in the Partnership, upon
payment by the issuee of the full amount of the capital contributions then due
with respect to its interest in the Partnership represented by such Certificate.
All Certificates shall be executed in the name of the Partnership by each of the
General Partners or their designee(s). Each Certificate shall state on its face
the name of the registered holder thereof and the then interest in the
Partnership held by the issuee; and shall bear, on both sides thereof, a
statement of the restrictions imposed by Section 105 of the Casino Control Act.
(ii) Certificates of Interest in the Partnership may be transferred by
the lawful holders thereof only in connection with the transfer of all or part
of the interest of such holder in the Partnership, and only in accordance with
the
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provisions of this Agreement. All such transfers shall be effected by duly
executed and acknowledged instruments of assignment, each of which shall be
fully recorded on the Certificate Transfer Ledger. No effect shall be given to
any purported assignment of a Certificate, or transfer of the interest in the
Partnership evidenced thereby, unless such assignment and transfer shall be in
compliance with the terms and provisions of this Agreement, and any attempted
assignment or transfer in contravention hereof shall be ineffectual.
(iii) In the event that a Certificate of Interest shall be lost,
stolen, destroyed or mutilated, the Partnership may cause a replacement
Certificate to be issued upon such terms and conditions as shall be fixed by the
Partners, including, without limitation, provision for indemnity and the posting
of a bond or other adequate security as security therefor. No replacement
Certificate shall be issued to any person unless such person has surrendered the
Certificate to be replaced, or has complied with the terms of this subsection.
(iv) The Certificate Transfer Ledger, containing the names and
addresses of all Partners and the interest of each Partner in the Partnership,
shall be open to the inspection of the Partners at the principal office of the
Partnership during usual business hours upon request of any Partner. Such
Ledger shall, in addition, be available for inspection by the Commission or the
Division of Gaming Enforcement of the State of New Jersey and each of their
respective authorized agents at all reasonable times without notice.
14.11 HEADINGS. The descriptive headings contained in this Agreement
--------
are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
14.12 TAX MATTERS PARTNER. Holdings shall be the "tax matters
-------------------
partner" under the Code and all applicable tax laws and shall, in its sole
discretion, make or revoke all tax elections, resolve allocations issues and
handle all tax audits, controversies and proceedings. TPHI and Holdings agree
that Holdings, acting through the Partnership, shall have the authority to
handle and resolve all tax controversies involving Holdings, TPHI and/or the
Partnership in such manner as Holdings in its sole discretion determines,
provided that the Partnership shall bear all accounting and legal expenses
incurred in connection therewith. Notwithstanding the foregoing, Trump shall
have the right to control the resolution of tax matters affecting or relating to
TTMA in respect to periods ending on or prior to the date hereof, including
requiring the Partnership and TTMA to adjust the tax basis of assets held by
TTMA in connection with the resolution of such tax matters to the extent such
basis adjustments shall not reduce Trump Hotels & Casino Resorts, Inc.'s share
of federal
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<PAGE>
income tax depreciation and cost recovery deductions in respect of assets held
by TTMA as of the date hereof and contributions of the interest in TTMA to the
Partnership.
14.13 INDEMNIFICATION. The Partnership shall indemnify and hold
---------------
harmless each Partner, its Affiliates, and all officers, directors, employees
and agents (individually, an "Agent") of such Partner, and its affiliates
(individually, an "Indemnitee") from and against any and all losses, claims,
demands, costs, damages, liabilities, joint and several, expenses of any nature
(including reasonable attorneys' fees and disbursements), judgments, fines,
settlements, and other amounts arising from any and all claims, demands,
actions, suits, or proceedings, civil, criminal, administrative or
investigative, brought or threatened in which the Indemnitee may be involved, or
threatened to be involved, as a party or otherwise, arising out of or incidental
to the business of the Partnership or their status as an Agent including without
limitation liabilities under the Federal and state securities laws, regardless
of whether the Indemnitee continues to be a Partner, an Affiliate of a Partner,
or an Agent of a Partner or of an Affiliate of a Partner at the time any such
liability or expense is paid or incurred, so long as such indemnified person
acted in good faith on behalf of the Partnership, TPHI or Holdings and in a
manner reasonably believed by such person to be in or not opposed to the best
interests of the Partnership, TPHI or Holdings but only if such course of
conduct does not constitute gross negligence or willful misconduct; provided
that such indemnification or agreement to hold harmless shall be recoverable
only out of assets of the Partnership and not from the Partners and; provided,
further that no indemnification shall be made to or on behalf of an Indemnitee
if a judgment or other final adjudication adverse to the Indemnitee establishes
that his or its acts or omissions (i) in the case of an Indemnitee who is or was
a director of TPHI or the Holdings managing general partner, were in breach of
his duty of loyalty to TPHI or the Holdings managing general partner, as the
case may be, or were not in good faith or involved a knowing violation of law,
or resulted in receipt by the Indemnitee of an improper personal benefit or (ii)
in the case of all other Indemnitees, constituted gross negligence or willful
misconduct. Termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendre or its equivalent shall not itself
create a presumption that such Indemnitee did not meet the applicable standard
of conduct for indemnification. Indemnity shall be paid in advance of the final
disposition of the proceeding to an Indemnitee provided that the Indemnitee
undertakes to repay the Partnership if it shall ultimately be determined that he
or it is not entitled to indemnification as provided by this Section 14.13. The
indemnification provided by this Section 14.13 shall be in addition to any other
rights to which an Indemnitee may be entitled under any agreement, as a matter
of law or equity, or otherwise, both as
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to action in the Indemnitee's capacity as a Partner, an Affiliate of a Partner,
or as an officer, director, employee or agent of a Partner or Affiliate of a
Partner and as to any action in another capacity, and shall continue as to an
Indemnitee who has ceased to serve in such capacity and shall inure to the
benefit of the heirs, successors, assigns and administrators of the Indemnitee.
No Indemnitee shall be denied indemnification in whole or in part under this
Section 14.13 by reason of the fact that the Indemnitee had an interest in the
transaction with respect to which the indemnification applies if such interest
was fully disclosed and the transaction was approved by Funding.
Any indemnification or advance under this Section 14.13 to an
Indemnitee shall be made promptly and in any event within thirty (30) days upon
the written request of the individual seeking indemnification. The right to
indemnification or advances as granted under this Section 14.13 shall be
enforceable by any such individual seeking indemnification in any court of
competent jurisdiction, if the Partnership denies such request, in whole or in
part, or if no disposition thereof is made within thirty (30) days. Such
person's costs and expenses incurred in connection with successfully
establishing his right to indemnification or advances, in whole or in part, in
any such action shall also be indemnified by the Partnership. It shall be a
defense to any such action that there has been a judgment or other final
adjudication adverse to the claimant which established that his acts or
omissions did not meet the standard of conduct required by the first paragraph
of this Section 14.13, but the burden of proving such defense shall be on the
Partnership. Neither the failure of the Partnership to have made a
determination prior to the commencement of such action that indemnification of
the claimant is proper in the circumstances because he has met the applicable
standard of conduct, nor the fact that there has been an actual determination by
the Partnership that the claimant has not met such applicable standard of
conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
The partnership shall have the power to purchase and maintain
insurance, and to furnish similar protection (including but not limited to
providing a trust fund, letter of credit, self-insurance or indemnification
contract), on behalf of any individual to whom indemnification or advances may
be paid hereunder, against any expenses, fees or liabilities for which
indemnification or advances may be paid hereunder.
14.14 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
----------------------
and inure to the benefit of the parties and their heirs, executors,
administrators, successors, legal representatives and permitted assigns,
including any pledgee upon the foreclosure
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of any pledge of a Partner's Partnership Interest in the Partnership.
Partners:
TRUMP HOTELS & CASINO RESORTS
HOLDINGS, L.P.
By: TRUMP HOTELS & CASINO RESORTS,
INC., general partner
By:___________________________
Nicholas L. Ribis
President
TRUMP PLAZA HOLDING, INC.
By:____________________________
Donald J. Trump
President
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