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.
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SECOND AMENDED AND RESTATED
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AGREEMENT OF LIMITED PARTNERSHIP
OF
TRUMP HOTELS & CASINO RESORTS HOLDINGS, L.P.
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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
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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
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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
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Schedules
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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
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EXHIBIT A -- Form of Amended and Restated Exchange and Registration Rights
Agreement
(iii)
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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
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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"
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or the "Initial Limited Partner"), TM/GP Corporation, a New Jersey corporation
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("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
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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
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DEFINITIONS
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Section 1.1. Definitions. Except as otherwise herein expressly
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provided, the following terms and phrases shall have the meanings as set forth
below:
"Accountants" shall mean the national firm or firms of independent
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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,
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as the same may hereafter be amended from time to time.
"Action" shall mean any and all claims, demands, actions, suits or
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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
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Partnership pursuant to Section 6.3 hereof.
"Additional Partnership Interests" shall have the meaning set
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forth in Section 4.2(a).
"Adjusted Capital Account Deficit" shall mean, with respect to any
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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
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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
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hereof.
"Affiliate" shall mean, with respect to any specified Person, any
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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
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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
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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
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(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
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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
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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
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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
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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
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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
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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
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Act, N.J.S.A. 5:12-1 et seq.
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"CCC" shall mean the New Jersey Casino Control Commission and any
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successor agency.
"Certificate" shall mean the Certificate of Limited Partnership
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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
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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
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effect from time to time, as interpreted
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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,
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of THCR, other than the Class B Stock.
"Consent of the Limited Partners" shall mean the written consent of a
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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
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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
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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).
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"Deemed Partnership Interest Value" as of any date, shall mean with
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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
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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
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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
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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
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8.6.
"Disqualified Holder" shall mean any Beneficial Owner of Partnership
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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,
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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,
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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,
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participations or other equivalents (however designated) of such Person in
equity.
"ERISA" shall mean the Employee Retirement Income Security Act of
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1974, as amended from time to time (or any corresponding provisions of
succeeding laws).
"Exchange Rights Agreement" shall mean the Amended and Restated
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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
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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
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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
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collateral conducted by a pledgee in exercising its rights under the Uniform
Commercial Code.
"Gary Riverboat" shall mean a riverboat or dockside gaming facility
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and the ancillary structures and other
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facilities used in connection with the operation thereof located in Gary,
Indiana.
"General Partner" shall mean THCR, its duly admitted successors and
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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,
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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
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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:
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(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;
(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
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
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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
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agency.
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"Indebtedness" shall mean any obligation, whether or not contingent,
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(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
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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
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Act, Ind. Code (S) 4-33-1-1 et seq.
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"Initial Limited Partner" shall have the meaning set forth in the
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Introduction to this Agreement.
"Issuance Costs" shall mean the underwriter's discount, placement
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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
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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
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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,
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<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
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<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.
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<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.
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<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.
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<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
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<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
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<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;
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<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.
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<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:
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<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.
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<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
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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
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<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.
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<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
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<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
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<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
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<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
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<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
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<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;
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<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
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<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
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<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 available at the time of such transaction or
transactions in a comparable transaction in arm's-length dealings with an
unaffiliated third party; provided, however, that the foregoing shall not
limit any of the transactions relating to the "Merger Transaction," as such
term is defined in the final prospectus dated Aptil __, 1996 included in
the Registration Statement on Form S-1 (Registration No. 333-639) relating
to the equity offering of the General Partner.
(b) Notwithstanding the foregoing:
(i) No compensation shall be paid directly or indirectly to the
Initial Limited Partner by the Partnership or any of its Subsidiaries,
except (A) as
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<PAGE>
set forth in the Executive Agreement, as in effect on the date of this
Partnership Agreement, (B) the Services Agreement between Trump Plaza
Associates and the Initial Limited Partner as in effect on the date of
this Partnership Agreement, or (C) with the approval of the
Compensation Committee of the board of directors of the General
Partner; and
(ii) The Partnership and its Subsidiaries shall not enter into
any management, services, consulting or similar agreements with the
Initial Limited Partner or any of his Affiliates, except (A) the
Executive Agreement, as in effect on date of this Partnership
Agreement, (B) the Services Agreement between Trump Plaza Associates
and the Initial Limited Partner as in effect on date of this
Partnership Agreement, or (C) employment agreements in the ordinary
course of business, consistent with industry practice, which are
approved by the Compensation Committee of the board of directors of
the General Partner.
Section 7.6. Title to Partnership Assets. Title to Partnership
---------------------------
assets, whether real, personal or mixed and whether tangible or intangible,
shall be deemed to be owned by the Partnership as an Entity, and no Partner,
individually or collectively, shall have any ownership interest in such
Partnership assets or any portion thereof. Title to any or all of the
Partnership assets may be held in the name of the Partnership, the General
Partner or one or more nominees, as the General Partner may determine, including
Affiliates of the General Partner. The General Partner hereby acknowledges and
confirms that any Partnership assets for which legal title is held in the name
of the General Partner or any nominee or Affiliate of the General Partner shall
be held by the General Partner for the use and benefit of the Partnership in
accordance with the provisions of this Agreement; provided, however, that the
-------- -------
General Partner shall use its best efforts to cause beneficial and record title
to such assets to be vested in the Partnership as soon as reasonably
practicable. All Partnership assets shall be recorded as the property of the
Partnership in its books and records, irrespective of the name in which legal
title to such Partnership assets is held.
Section 7.7. Reliance by Third Parties. Notwithstanding anything to
-------------------------
the contrary in this Agreement, any Person dealing with the Partnership shall be
entitled to assume that the General Partner has full power and authority to
encumber, sell or otherwise use in any manner any and all assets of the
Partnership and to enter into any contracts on behalf of the Partnership, and
such Person shall be entitled to deal with the General Partner as if it were the
Partnership's sole party in interest, both legally and beneficially. In no
event shall any Person dealing with the General Partner or its representatives
be obligated to ascertain that the terms of this Agreement have been
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complied with or to inquire into the necessity or expedience of any act or
action of the General Partner or its representatives. Each and every
certificate, document or other instrument executed on behalf of the Partnership
by the General Partner shall be conclusive evidence in favor of any and every
Person relying thereon or claiming thereunder that (i) at the time of the
execution and delivery of such certificate, document or instrument, this
Agreement was in full force and effect, (ii) the Person executing and delivering
such certificate, document or instrument was duly authorized and empowered to do
so for and on behalf of the Partnership and (iii) such certificate, document or
instrument was duly executed and delivered in accordance with the terms and
provisions of this Agreement and is binding upon the Partnership.
Section 7.8. Liability of the General Partner.
--------------------------------
(a) Notwithstanding anything to the contrary set forth in this
Agreement, the General Partner shall not be liable for monetary or other
damages to the Partnership, any of the Partners or any assignee of any
interest of any Partner for losses sustained or liabilities incurred as a
result of errors in judgment or of any act or omission if the General
Partner acted in good faith without fraud, gross negligence, willful
misconduct or a breach of the General Partner's fiduciary duties to the
Limited Partners. The General Partner shall not be obligated to make any
additional payments from its own funds or Capital Contributions for the
purpose of returning any capital of the Limited Partners.
(b) Subject to its obligations and duties as General Partner set
forth in Section 7.1 hereof, the General Partner may exercise any of the
powers granted to it by this Agreement and perform any of the duties
imposed upon it hereunder either directly or by or through its agents. The
General Partner shall not be responsible for any act of any such agent
appointed by it in good faith and without gross negligence including,
without limitation, any willful misconduct or gross negligence on the part
of any such agent.
Section 7.9. Officers of the Partnership. The Partnership shall have
---------------------------
such officers, if any, as the General Partner from time to time may in its
discretion elect or appoint. The Partnership may also have such agents, if any,
as the General Partner from time to time may in its discretion choose. Each
officer shall have such duties and powers as are commonly incident to his or her
office and such additional duties and powers as the General Partner may from
time to time designate. Each officer and agent shall retain his or her
authority at the pleasure of the General Partner.
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Section 7.10. Covenants of THCR Regarding the Issuance of New
-----------------------------------------------
Securities. THCR hereby covenants and agrees that so long as it is a General
----------
Partner:
(a) THCR shall not issue any additional shares of Class B Stock,
except to the Initial Limited Partner and his Permitted Holders.
(b) THCR shall not issue any additional New Securities, other than
pro rata to all holders of Common Stock unless (x) the General Partner
shall cause the Partnership to issue to THCR (or, in the absence of such
issuance, there shall be deemed to have been issued to THCR) Additional
Partnership Interests, as provided in Section 4.2(b)(i) and (y) THCR
contributes the gross proceeds (net of any Issuance Costs not paid by the
Partnership, which Issuance Costs shall be deemed to have been contributed
to the Partnership as a Capital Contribution for purposes of Section 4.3),
if any, from the issuance of such New Securities and from the exercise of
rights contained in such New Securities to the Partnership.
(c) In connection with any issuance of New Securities pursuant to
paragraph (b) of this Section 7.10, THCR shall make a Capital Contribution
to the Partnership of the gross proceeds (net of any Issuance Costs not
paid by the Partnership) raised in connection with such issuance (and any
proceeds paid upon conversion or exchange of the New Securities) and the
Partnership shall, as agent for THCR, simultaneously pay the Issuance Costs
to the extent included in General Partner Expenses, and credit such
contribution to the capital account of THCR.
Section 7.11. Other Matters Concerning the General Partner.
--------------------------------------------
(a) The General Partner may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, or other document reasonably believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(b) The General Partner may consult with legal counsel, accountants,
appraisers, management consultants, investment bankers and other
consultants and advisers selected by it, and any act taken or omitted to be
taken in reliance upon the advice or opinion of such Persons as to matters
which the General Partner reasonably believes to be within such Person's
professional or expert competence and in accordance with such advice or
opinion shall be prima facie evidence that such actions have been done or
omitted in good faith.
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(c) The General Partner shall have the right, in respect of any of
its powers or obligations hereunder, to act through any of its duly
authorized officers and any attorney or attorneys-in-fact duly appointed by
the General Partner. Each such attorney shall, to the extent provided by
the General Partner in the power of attorney, have full power and authority
to do and perform all and every act and duty which is permitted or required
to be done by the General Partner hereunder.
ARTICLE VIII
------------
DISSOLUTION, LIQUIDATION AND WINDING-UP
---------------------------------------
Section 8.1. Accounting. In the event of the dissolution, liquidation
----------
and winding-up of the Partnership, a proper accounting shall be made of the
Capital Account of each Partner and of the Net Income or Net Loss of the
Partnership from the date of the last previous accounting to the date of
dissolution.
Section 8.2. Distribution on Dissolution. In the event of the
---------------------------
dissolution and liquidation of the Partnership for any reason, the assets of the
Partnership shall be liquidated for distribution in the following rank and
order:
(a) Payment of creditors of the Partnership, including creditors who
are Partners or former Partners;
(b) Establishment of reserves as provided by the Liquidating Trustee
to provide for contingent liabilities, if any; and
(c) To the Partners in accordance with the positive balances in their
Capital Accounts after giving effect to all contributions, distributions
and allocations for all periods.
Whenever the Liquidating Trustee reasonably determines that any reserves
established pursuant to paragraph (b) above are in excess of the reasonable
requirements of the Partnership, the amount determined to be excess shall be
distributed to the Partners in accordance with the provisions of this Section
8.2.
Section 8.3. Timing Requirements.
-------------------
In the event that the Partnership is "liquidated" within the
meaning of Section 1.704-1(b)(2)(ii)(g) of the Regulations, any and all
distributions to the Partners pursuant to Section 8.2(c) hereof shall be
made no later than the later to occur of (i) the last day of the taxable
year of the Partnership in which such
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liquidation occurs or (ii) ninety (90) days after the date of such
liquidation.
(b) Notwithstanding the provisions of Section 8.2 hereof which
require liquidation of the assets of the Partnership, but subject to the
order of priorities set forth therein, if prior to or upon dissolution of
the Partnership the Liquidating Trustee determines that an immediate sale
of part or all of the Partnership's assets would be impractical or would
cause undue loss to the Partners, the Liquidating Trustee may, in its sole
and absolute discretion, defer for a reasonable time the liquidation of any
assets except those necessary to satisfy liabilities of the Partnership
(including to those Partners which are creditors of the Partnership)
and/or, with the Consent of the Limited Partners, distribute to the
Partners, in lieu of cash, as tenants in common and in accordance with the
provisions of Section 8.2 hereof, undivided interests in such Partnership
assets as the Liquidating Trustee deems not suitable for liquidation. Any
such distributions in kind shall be made only if, in the good faith
judgment of the Liquidating Trustee, such distributions in kind are in the
best interest of the Partners, and shall be subject to such conditions
relating to the disposition and management of such properties as the
Liquidating Trustee deems reasonable and equitable and to any agreements
governing the operation of such properties at such time. The Liquidating
Trustee shall determine the fair market value of any property distributed
in kind using such reasonable method of valuation as it may adopt.
Section 8.4. Documentation of Liquidation. Upon the completion of the
----------------------------
dissolution and liquidation of the Partnership, the Partnership shall terminate
and the Liquidating Trustee shall have the authority to execute and record any
and all documents or instruments required to effect the dissolution, liquidation
and termination of the Partnership.
Section 8.5. Dissolution. The Partnership shall be dissolved upon the
-----------
occurrence of any of the following events:
(a) the dissolution, liquidation, termination, withdrawal, death,
insanity, retirement or Bankruptcy of the last remaining General Partner or
other event causing dissolution under the Act;
(b) the election to dissolve the Partnership made in writing by the
General Partner with the Consent of the Limited Partners;
(c) the sale or other disposition of all or substantially all of the
assets of the Partnership unless the General Partner elects to continue the
Partnership business for the purpose of the receipt and the collection
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of indebtedness or the collection of any other consideration to be received
in exchange for the assets of the Partnership (which activities shall be
deemed to be part of the winding up of the affairs of the Partnership); or
(d) the entry of a decree of judicial dissolution of the Partnership
pursuant to the provisions of the Act, which decree is final and not
subject to appeal.
Following an event causing a dissolution of the Partnership, the
Partnership shall be wound-up and terminated unless the business of the
Partnership is continued by the Partnership in reconstituted form pursuant to
Section 8.6.
Section 8.6. Continuation of the Partnership. The Partners hereby
-------------------------------
waive their right of partition and agree, that except as provided in Section
9.7, they shall not do anything that would terminate the Partnership prior to
the expiration of its term without the prior Consent of the Limited Partners.
Upon the bankruptcy, dissolution, liquidation, withdrawal, death, retirement or
insanity of any General Partner (a "Disabling Event"), or any other event of
dissolution under the Act, within 90 days thereafter, all of the remaining
Partners (or, to the extent permitted under the Act, such lesser number or
percentage of the Partners, but in no event less than a majority-in-interest of
the remaining Partners) may (a) elect to reconstitute the Partnership and
continue its business, and (b) in the case of an event as a result of which
there is no longer a party serving as general partner of the Partnership, select
a substitute General Partner, which substitute General Partner accepts such
election and agrees to serve as General Partner. Such successor General Partner
shall thereupon succeed to the rights and obligations of the General Partner as
provided in Section 9.1. A General Partner which has suffered a Disabling Event
shall automatically be converted to a Limited Partner having none of the voting
rights or privileges provided hereunder for the election to reconstitute the
Partnership as provided above.
ARTICLE IX
----------
TRANSFER AND REDEMPTION OF PARTNERSHIP INTERESTS;
-------------------------------------------------
CERTAIN CONSENT RIGHTS
----------------------
Section 9.1. General Partner Transfer.
------------------------
(a) Except as set forth in Section 9.7, during such time as the
Limited Partners (not including the General Partner) own in the aggregate
more than ten percent (10%) of the issued and outstanding Partnership
Interests, the General Partner shall not withdraw from the Partnership and
shall not Transfer all or any portion of its interest in the Partnership
without the Consent of the Limited Partners.
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<PAGE>
(b) Upon any Transfer of a Partnership Interest by the General
Partner in accordance with the provisions of this Section 9.1 (other than
in connection with the granting of a Lien), the transferee General Partner
shall become vested with the powers and rights of the transferor General
Partner, and shall be liable for all obligations and responsible for all
duties of the General Partner, once such transferee has executed such
instruments as may be necessary to effectuate such admission and to confirm
the agreement of such transferee to be bound by all the terms and
provisions of this Agreement with respect to the Partnership Interest so
acquired. It shall be a further condition to any Transfer otherwise
permitted hereunder (other than in connection with the granting of a Lien)
that the transferee assumes by express agreement (or pursuant to a
statutory merger or consolidation wherein all obligations and liabilities
of the General Partner are assumed by a successor corporation by operation
of law) all of the obligations of the transferor General Partner under this
Agreement with respect to such transferred Partnership Interest and no such
Transfer (other than pursuant to a statutory merger or consolidation
wherein all obligations and liabilities of the transferor General Partner
are assumed by a successor corporation by operation of law) shall relieve
the transferor General Partner of its obligations under this Agreement
without the Consent of the Limited Partners. In connection with any such
permitted Transfer (other than in connection with the granting of a Lien),
the successor General Partner shall be deemed admitted as such immediately
prior to the effective time of the Transfer from the transferor General
Partner and shall continue the business of the Partnership without
dissolution.
(c) If the General Partner withdraws or retires from the Partnership,
in violation of this Agreement, (i) any remaining general partner may
continue the Partnership business or (ii) within 90 days thereafter, all of
the remaining Partners (or, to the extent permitted under the Act, such
lesser number or percentage of the Partners, but in no event less than a
majority-in-interest of the remaining Partners) may elect to continue the
Partnership business pursuant to Section 8.6.
Section 9.2. Transfers by Limited Partners.
-----------------------------
(a) No Limited Partner shall have the right, directly or indirectly,
to Transfer all or any part of its Partnership Interest to any Person
without the prior written consent of the General Partner, including a
majority of the Special Committee, which consent shall not be unreasonably
withheld or delayed; provided, however, that no such consent shall be
required for (i) a Transfer of Partnership Interests pursuant to Article
XII hereof, (ii) a Transfer of
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Partnership Interests to a Permitted Holder, (iii) the subjecting of a
Limited Partnership Interest to a Permitted Limited Partnership Interest
Lien or (iv) the subsequent foreclosure on such a Permitted Limited
Partnership Interest Lien.
(b) It shall be a further condition to any Transfer (other than the
granting of a Permitted Limited Partnership Interest Lien) otherwise
permitted hereunder (including upon the foreclosure of any Lien) that the
transferee assume by operation of law or express agreement all of the
obligations of the transferor Limited Partner under this Agreement
(including, without limitation, under Article IX) with respect to such
transferred Partnership Interest and no such Transfer (other than pursuant
to a statutory merger or consolidation wherein all obligations and
liabilities of the transferor Partner are assumed by a successor
corporation by operation of law) shall relieve the transferor Partner of
its obligations under this Agreement without the approval of the General
Partner, in its reasonable discretion (it being understood that, without
limiting the generality of Section 9.5, a transferor Partner shall be
deemed relieved from such obligations, without the necessity of any such
approval, in respect of Partnership Interests transferred to the General
Partner pursuant to Article XII hereof). Upon such Transfer, the
transferee shall, subject to Section 9.2(d), be admitted as a substituted
Limited Partner and shall succeed to all of the rights, including rights
with respect to Article XII hereof, of the transferor Limited Partner under
this Agreement in the place and stead of such transferor Limited Partner
(which succession, in the event of a pledge, may be entered into and become
effective at the time of foreclosure or other realization of such pledge).
Any transferee, whether or not admitted as a substituted Limited Partner,
shall succeed to the obligations of the transferor hereunder (unless such
transfer is a pledge, encumbrance, hypothecation or mortgage or except as
otherwise provided herein). Unless admitted as a Limited Partner pursuant
to, and in accordance with, the terms hereof, no transferee, whether by a
voluntary Transfer, by operation of law or otherwise, shall have rights
hereunder, other than (i) to receive such portion of the distributions made
by the Partnership as are allocable to the Percentage Interest transferred
and (ii) under Article XII hereof.
(c) In addition to any other restrictions on transfer provided
herein, no Partnership Interest of a Limited Partner shall be transferable
unless the General Partner has determined by written notification (a
"Transfer Determination") to the transferring Limited Partner, which
-----------------------
Transfer Determination shall not be unreasonably withheld and shall be
deemed given if not refused within ten Business Days of the notice to the
Partnership of a proposed
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<PAGE>
transfer, provided that the proposed transferor and transferee have
promptly responded in writing to the reasonable requests, if any, of the
General Partner for additional information sufficient for the General
Partner to determine the matters set forth in this Section 9.2(c), that
either (i) such transfer will not cause (x) any lender to the Partnership
to hold in excess of ten (10) percent of the aggregate Partnership
Interests or any other percentage of the Partnership Interest that would,
pursuant to the Regulations under Section 752 of the Code or any successor
provision, cause a loan by such lender to constitute Partner Nonrecourse
Debt, [(y) a transfer of a Partnership Interest the value of which would
have been less than $20,000 when issued,] or (z) a prohibited transaction
(as defined in section 4975(c) of the Code or Section 406 of ERISA) to
occur, or the Partnership to become, with respect to any employee benefit
plan subject to Title 1 of ERISA, a "party in interest" (as defined in
Section 3(14) of ERISA) or a "disqualified person" (as defined in Section
4975(e)(2) of the Code), or the Partnership to be deemed to hold "plan
assets" (as defined in regulations promulgated by the Department of Labor)
of any employee benefit plan subject to Title I of ERISA, or (ii) the
General Partner has determined to waive one or more of such requirements as
of the date of this Agreement, and may, after the date of this Agreement,
waive one or more of such requirements in its reasonable discretion after
having determined that the transfer will not materially adversely affect
the Partnership, its assets or any Partner, or constitute a violation of
law.
(d) Any transferee of the interest of a Limited Partner pursuant to
this Section 9.2 shall, upon the written request of such transferee and the
transferring Limited Partner and the consent of the General Partner,
including a majority of the Special Committee, which consent shall not be
unreasonably withheld or delayed, be admitted as a Limited Partner under
this Article IX, and the transferring Limited Partner shall, if all of its
Partnership Interests have been Transferred, withdraw from the Partnership.
The Partnership shall not be required in any way to determine the validity
of any written instrument referred to in the immediately preceding
sentence, and shall be authorized to rely upon any such written instrument
signed by the necessary parties.
(e) Any permitted transferee under Section 9.2 who is not admitted as
a substituted Limited Partner in accordance with this Article IX
(including, without limitation, Sections 9.2(b) and 9.2(d)) shall be
considered an assignee for purposes of this Agreement. An assignee shall
be deemed to have had assigned to it, and shall be entitled to receive,
distributions from the Partnership and the share of Net Income, Net Losses,
and any other items of income, gain, loss, deduction and credit of the
Partnership
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<PAGE>
and rights attributable to the Partnership Interests assigned to such
transferee, and shall have the rights of the transferor under Article XII
hereof, but shall not be deemed to be a holder of Partnership Interests for
any other purpose under this Agreement, and shall not be entitled to vote
such Partnership Interests in any matter presented to the Limited Partners
for a vote or consent. In the event any such transferee desires to make a
further assignment of any such Partnership Interests, such transferee shall
be subject to all the provisions of this Article IX to the same extent and
in the same manner as any Limited Partner desiring to make an assignment of
Partnership Interests.
(f) The Limited Partners acknowledge that the Partnership Interests
have not been registered under any federal or state securities laws and, as
a result thereof, they may not be sold or otherwise transferred, except in
compliance with such laws. Notwithstanding anything to the contrary
contained in this Agreement, no Partnership Interest may be sold or
otherwise transferred unless such transfer is exempt from registration
under any applicable securities laws or such transfer is registered under
such laws, it being acknowledged that the Partnership has no obligation to
take any action which would cause any such Partnership Interests to be
registered.
(g) Any transferee of ownership of the Partnership Interests
originally held by the Initial Limited Partner shall have the right to
purchase from the transferor of such Partnership Interests a pro rata
portion of the Class B Stock held by such transferor at a purchase price
equal to its par value.
Section 9.3. Certain Additional Restrictions on Transfer. In addition
-------------------------------------------
to any other restrictions on Transfer herein contained, in no event may any
Transfer of a Partnership Interest by any Partner be made (i) to any person or
Entity that lacks the legal right, power or capacity to own a Partnership
Interest; (ii) if such Transfer would cause a termination of the Partnership for
federal income tax purposes, except with the Consent of the Limited Partners,
subject to the provisions of Section 9.7; (iii) if such Transfer would, in the
opinion of counsel to the Partnership, cause the Partnership to cease to be
classified as a partnership for Federal income tax purposes; (iv) if such
Transfer is effectuated through an "established securities market" or a
"secondary market (or the substantial equivalent thereof)" within the meaning of
Section 7704(b) of the Code; (v) if such Transfer would cause the Partnership to
become, with respect to any employee benefit plan subject to Title 1 of ERISA, a
"party-in-interest" (as defined in Section 3(14) of ERISA) or a "disqualified
person" (as defined in Section 4975(e)(2) of the Code); (vi) in violation of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976; or (vii) if such transfer
would, in the opinion of counsel to the Partnership,
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<PAGE>
cause any portion of the assets of the Partnership to constitute assets of any
employee benefit plan pursuant to Department of Labor Regulations Section
2510.3-101.
Section 9.4. Effective Dates of Transfers.
----------------------------
(a) Transfers pursuant to this Article IX may be made on any day, but
for purposes of this Agreement, the effective date of any such Transfer
shall be (i) the first day of the month in which such Transfer occurred if
such Transfer occurred on or prior to the fifteenth calendar day of a
month, or (ii) the first day of the month immediately following the month
in which such transfer occurred, if such Transfer occurred after the
fifteenth calendar day of a month, or such other date determined by the
General Partner pursuant to such convention as may be administratively
feasible and consistent with applicable law.
(b) If any Partnership Interest is Transferred (other than the
granting of a Permitted Limited Partnership Interest Lien) in compliance
with the provisions of this Article IX, on any day other than the first day
of a calendar year, then Net Income, Net Loss, each item thereof and all
other items attributable to such Partnership Interest for such year shall
be allocated to the transferor Partner, or the redeemed or selling
Partners, as the case may be, and, in the case of a Transfer other than a
redemption or the granting of a Permitted Limited Partnership Interest
Lien, to the transferee Partner, by taking into account their varying
interests during such year in accordance with Section 706(d) of the Code,
using the interim closing of the books method. Solely for purposes of
making such allocations, each of such items for the calendar month in which
the effective date of a Transfer (other than the granting of a Lien) occurs
shall be allocated to the transferor or transferee Partner as provided in
Section 9.4(a), and for purposes of Section 9.4(a), the transferee shall be
the owner of the Partnership Interest at the close of business on any day
on which a Transfer takes place.
Section 9.5. Transfer.
--------
(a) The term "Transfer," when used in this Article IX with respect to
a Partnership Interest, shall be deemed to refer to a transaction by which
a Partner purports to assign its Partnership Interest or any portion
thereof to another Person, and includes a sale, assignment, gift, pledge,
encumbrance, hypothecation, mortgage, exchange, granting of a Lien or any
other disposition by law or otherwise; provided, however, that the term
-------- -------
"Transfer", when used in this Article IX (except when such term is used in
---------
Section 9.4) does not include any acquisition of Partnership
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<PAGE>
Interests from a Limited Partner by the General Partner or the Partnership
pursuant to Article XII.
(b) The Limited Partner has consented, in Section 4.1, to certain
issuances of Partnership Interests, and the foregoing provisions of this
Article IX, to the extent that they would, but for such Section or this
subsection (b), be applicable to such Transfers, are hereby deemed
satisfied or waived.
(c) The General Partner is hereby authorized on behalf of each of the
Partners to amend this Agreement (including the schedules hereto) to
reflect the admission of any transferee of a Partnership Interest as a
substituted Limited Partner in accordance with the provisions of this
Article IX.
(d) No Partnership Interest shall be Transferred, in whole or in
part, except in accordance with the terms and conditions set forth in this
Article IX. Any Transfer or purported Transfer of a Partnership Interest
not made in accordance with this Article IX shall be null and void.
Section 9.6. Redemption of Partnership Interest. The Partnership
----------------------------------
shall not redeem, repurchase, or otherwise acquire Partnership Interests from
the Partners, except (i) for redemptions of Partnership Interests pro rata based
on the Partners' Percentage Interests, (ii) for redemptions of Partnership
Interests as provided in Article XV, and (iii) with the Consent of the Limited
Partners.
Section 9.7. Certain Consent Rights. Notwithstanding any other
----------------------
provision of this Agreement to the contrary, (A) the General Partner shall have
the right to enter into, effect, and/or consummate, and, (B) the Limited
Partners, as such, shall not have the right to approve, consent, or vote with
respect to: (x) any merger, consolidation, combination, sale of all or
substantially all of the assets or stock of the General Partner, the sale of all
of the General Partner's interest in the Partnership, or any similar
transaction, which, in the case of this clause (x), if and only to the extent
required by applicable law, has been approved by the stockholders of the General
Partner, or (y) any merger, consolidation, combination, sale of all or
substantially all of the assets of the Partnership, or any similar transaction,
which in the case of this clause (y) has been approved by the stockholders of
the General Partner; provided, however, that if any transaction is determined to
be described in both clauses (x) and (y) immediately above, the imposition of
any requirement that the stockholders of the General Partnership approve such
transaction shall be governed solely by clause (x) and not by clause (y).
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ARTICLE X.
----------
RIGHTS AND OBLIGATIONS OF THE LIMITED PARTNERS
----------------------------------------------
Section 10.1. No Participation in Management. No Limited Partner, in
------------------------------
its capacity as such, shall take part in the management of the Partnership's
business, transact any business in the Partnership's name or have the power to
sign documents for or otherwise bind the Partnership. Any rights expressly
granted to the Limited Partners in this Agreement shall not be deemed to be
rights relating to the management of the Partnership's business.
Section 10.2. Bankruptcy of a Limited Partner. The Bankruptcy of any
-------------------------------
Limited Partner shall not cause a dissolution of the Partnership, but the rights
of such Limited Partner to share in the Net Profits or Net Losses of the
Partnership and to receive distributions of Partnership funds shall, on the
happening of such event, devolve on its successors or assigns, subject to the
terms and conditions of this Agreement, and the Partnership shall continue as a
limited partnership. In no event, however, shall such assignee(s) become a
substituted Limited Partner except in accordance with Article IX hereof.
Section 10.3. No Withdrawal. No Limited Partner may withdraw from
-------------
the Partnership without the prior written consent of the General Partner, other
than as provided in Article IX of this Agreement, and provided that the
foregoing provisions of this Section 10.3 shall not apply to a withdrawal from
the Partnership upon a Transfer pursuant to Article XII hereof, such withdrawal
to be effective immediately without any requirement for consent thereto by the
General Partner.
Section 10.4. Conflicts. The Partners recognize that the Limited
---------
Partners and their Affiliates have or may have other business interests,
activities and investments, some of which may be in conflict or competition with
the business of the Partnership, and that such Persons are entitled to carry on
such other business interests, activities and investments. Without limiting the
foregoing in deciding whether to take any actions in such capacity, such Limited
Partners and their Affiliates shall be under no obligation to consider the
separate interests of the Partnership and shall have no fiduciary obligations to
the Partnership and shall not be liable for monetary damages for losses
sustained, liabilities incurred or benefits not derived by the other Partners in
connection with such actions. The Limited Partners and their Affiliates may
engage in or possess an interest in any other business or venture of any kind,
independently or with others, on their own behalf or on behalf of other entities
with which they are affiliated or associated, and such persons may engage in any
activities, whether or not competitive with the Partnership, without any
obligation to offer any interest in such activities to the Partnership or to any
Partner. Neither the Partnership nor any Partner shall have any
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right, by virtue of this Agreement, in or to such activities, or the income or
profits derived therefrom, and the pursuit of such activities, even if
competitive with the business of the Partnership, shall not be deemed wrongful
or improper. Notwithstanding the foregoing, (i) the provisions of this Section
10.4 shall not negate or impair any other agreement between one or more of the
Limited Partners and the General Partner, the Partnership, or any of their
respective Subsidiaries, and (ii) in conducting an Outside Business Activity, a
Limited Partner will to the best of its ability and consistent with its
fiduciary duty to such Outside Business Activity, conduct such Outside Business
Activity in a commercially reasonable manner so that on an annual overall basis
the Partnership is not discriminated against.
Section 10.5. Provision of Information.
------------------------
(a) Annual and Periodic Reports.
---------------------------
(i) Annual Statement. The General Partner shall, as soon as
----------------
practicable, but in no event later than 105 days after the close of
each fiscal year, cause to be furnished to each Partner Audited
Financial Statements for the Partnership, or of the General Partner if
such statements are prepared solely on a consolidated basis with the
General Partner, for the immediately preceding fiscal year of the
Partnership.
(ii) Quarterly Reports. The General Partner shall, as soon as
-----------------
available and, in any event, within 45 days after the end of each of
the first three fiscal quarters of the Partnership's fiscal year,
furnish to each Partner the internally prepared unaudited combined
balance sheet of the Partnership and its combined Subsidiaries as of
the end of such quarter and the combined statements of profit and
loss, partners' capital and cash flow for such quarter and for the
portion of the fiscal year then ending (all in reasonable detail),
accompanied by a certificate of the General Partner or of the chief
financial officer of the Partnership to the effect that, except for
the lack of required footnotes, such balance sheets and statements
have been properly prepared in accordance with GAAP and fairly present
the financial condition of the Partnership and its combined
Subsidiaries as of the date thereof and the results of their
operations for the period covered thereby, subject only to normal
year-end audit adjustments. In lieu of the foregoing, the General
Partner may furnish to each Partner a copy of the Partnership's
quarterly report on Form 10-Q, if the Partnership is then obligated to
file such report with the SEC pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended.
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(b) In addition to other rights provided by this Agreement or by the
Act, each Limited Partner shall have the right, for a purpose reasonably
related to such Limited Partner's interest as a limited partner in the
Partnership (the interests of a lender to such Limited Partner having a
Permitted Limited Partnership Interest Lien on its Partnership Interests
being so related), upon written demand with a statement of the purpose of
such demand:
(i) to obtain a copy of the most recent annual and quarterly
reports and current reports on Form 8-K filed with the SEC by the
General Partner pursuant to the Securities Exchange Act of 1934, as
amended;
(ii) to obtain a copy of the Partnership's federal, state and
local income tax returns for each fiscal year of the Partnership;
(iii) to obtain a current list of the name and last known
business, residence or mailing address of each Partner;
(iv) to obtain a copy of this Agreement and the Certificate and
all amendments thereto, together with executed copies of all powers of
attorney pursuant to which this Agreement, the Certificate and all
amendments thereto have been executed; and
(v) such other information regarding the business, affairs and
condition, financial or otherwise, of the Partnership and its
Subsidiaries as such Partner may reasonably request.
(c) Notwithstanding any other provision of this Section 10.5, the
General Partner may keep confidential from the Limited Partners, for such
period of time as the General Partner determines in its sole and absolute
discretion to be reasonable, any information that the Partnership is
required by law or by agreements with an unaffiliated third party to keep
confidential.
Section 10.6. Limited Partner Representative. The Initial Limited
------------------------------
Partner is hereby appointed as the Limited Partner Representative. A Majority-
in-Interest of the Limited Partners shall have the right, at any time, within
their sole discretion, to replace the Limited Partner Representative, or to
appoint a temporary substitute to act for a Limited Partner Representative
unable to act. Any appointment of a Limited Partner Representative made
hereunder shall remain effective until rescinded in a writing delivered to the
General Partner via certified mail, registered overnight express mail or
telecopy, and the General Partner shall have the right and authority to rely
(and shall be fully protected in so doing) on the actions
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taken and directions given by such Limited Partner Representative, without any
further evidence of their authority or further action by the Limited Partners.
The General Partner shall send copies of all notices received by it pursuant to
Section 5.6 to each Limited Partner requesting the same.
Section 10.7. Power of Attorney.
-----------------
(a) Each Limited Partner constitutes and appoints the General
Partner, any Liquidating Trustee and authorized officers and attorneys-in-
fact of each, and each of those acting singly, in each case with full power
of substitution, as its true and lawful agent and attorney-in-fact, with
full power and authority in its name, place and stead to: execute, swear
to, acknowledge, deliver, file and record in the appropriate public offices
(i) all certificates, documents and other instruments (including, without
limitation, this Agreement and the Certificate and all amendments or
restatements thereof) that the General Partner or the Liquidating Trustee
deems appropriate or necessary to form, qualify or continue the existence
or qualification of the Partnership as a limited partnership (or a
partnership in which the limited partners have limited liability) in the
State of Delaware and in all other jurisdictions in which the Partnership
may conduct business or own property; (ii) all instruments that the General
Partner deems appropriate or necessary to reflect any amendment, change,
modification or restatement of this Agreement in accordance with its terms;
(iii) all conveyances and other instruments or documents that the General
Partner deems appropriate or necessary to reflect the dissolution and
liquidation of the Partnership pursuant to the terms of this Agreement,
including, without limitation, a certificate of cancellation; and (iv) all
instruments relating to the admission, withdrawal, removal or substitution
of any Partner pursuant to the provisions of this Agreement or the Capital
Contribution of any Partner.
(b) The foregoing power of attorney is irrevocable and a power
coupled with an interest, in recognition of the fact that each of the
Partners will be relying upon the power of the General Partner to act as
contemplated by this Agreement in any filing or other action by it on
behalf of the Partnership, and it shall survive the death or incompetency
of a Limited Partner to the effect and extent permitted by law, subsequent
incapacity of any Limited Partner and the transfer of all or any portion of
such Limited Partner's Partnership Interests and shall extend to such
Limited Partner's heirs, successors, assigns and personal representatives.
(c) Nothing contained in this Section 10.7 shall be construed as
authorizing the General Partner to amend
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this Agreement except in accordance with Article XIII hereof.
ARTICLE XI
----------
INDEMNIFICATION; EXCULPATION
----------------------------
Section 57. Indemnification.
---------------
(a) To the fullest extent permitted by law, the Partnership shall and
does hereby indemnify an Indemnitee from and against any and all losses,
claims, damages, liabilities, joint or several, expenses (including
reasonable legal fees and expenses), judgments, fines, settlements, and
other amounts (collectively "Damages") arising from any and all claims,
demands, actions, suits or proceedings, civil, criminal, administrative or
investigative, that relate to the operations of the Partnership as set
forth in this Agreement in which any Indemnitee may be involved, or is
threatened to be involved, as a party or otherwise, unless it is
established that: (i) the act or omission of the Indemnitee was material
to the matter giving rise to the proceeding and was committed with fraud,
gross negligence, willful misconduct or in breach of the General Partner's
fiduciary duties to the Limited Partners; (ii) the Indemnitee actually
received an improper personal benefit in money, property or services; or
(iii) in the case of any criminal proceeding, the Indemnitee had reasonable
cause to believe that the act or omission was unlawful. The termination of
any proceeding by judgment, order or settlement shall not create a
presumption that the Indemnitee did not meet the requisite standard of
conduct set forth in this Section 11.1(a). Any indemnification pursuant to
this Section 11.1 shall be made only out of the assets of the Partnership
and no Partner shall have any personal liability therefor.
(b) Reasonable expenses incurred by an Indemnitee may be paid or
reimbursed by the Partnership in advance of the final disposition of the
proceeding upon receipt by the Partnership of (i) a written affirmation by
the Indemnitee of the Indemnitee's good faith belief that the standard of
conduct necessary for indemnification by the Partnership, as authorized in
this Section 11.1, has been met, and (ii) a written undertaking by or on
behalf of the Indemnitee to repay the amount paid or reimbursed if it shall
ultimately be determined that such standard of conduct has not been met.
(c) The indemnification provided by this Section 11.1 shall be in
addition to any other rights to which an Indemnitee may be entitled under
any agreement, as a matter
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of law or otherwise, and shall continue as to an Indemnitee who has ceased
to serve in such capacity.
(d) The Partnership may purchase and maintain insurance, on behalf of
the Indemnitees, against any liability that may be asserted against or
expenses that may be incurred by such Person in connection with the
Partnership's activities, regardless of whether the Partnership would have
the power to indemnify such Person against such liability under the
provisions of this Agreement.
(e) For purposes of this Section 11.1, the Partnership shall be
deemed to have requested an Indemnitee to serve as fiduciary of an employee
benefit plan whenever the performance by it of its duties to the
Partnership also imposes duties on, or otherwise involves services by, it
to the plan or participants or beneficiaries of the plan; excise taxes
assessed on an Indemnitee with respect to an employee benefit plan pursuant
to applicable law shall constitute fines within the meaning of this Section
11.1; and actions taken or omitted by the Indemnitee with respect to an
employee benefit plan in the performance of its duties for a purpose
reasonably believed by it to be in the interest of the participants and
beneficiaries of the plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Partnership.
(f) An Indemnitee shall not be denied indemnification in whole or in
part under this Section 11.1 solely because the Indemnitee had an interest
in the transaction with respect to which the indemnification applies.
(g) The provisions of this Section 11.1 are for the benefit of the
Indemnitees, their heirs, successors, assigns personal representatives and
administrators, and shall not be deemed to create any rights for the
benefit of any other Persons.
Section 11.2. Indemnification Procedures.
--------------------------
(a) If a claim for indemnification is asserted against the
Partnership under Article XI, the Partnership shall have the right, at its
own expense, (i) subject to the Partnership's obligations to pay all
amounts under Section 11.1(a) to participate in the defense of any Action
which resulted in the claim for indemnification or (ii) to assume at any
time the defense of any Action which resulted in the claim for
indemnification. Such assumption of the defense by the Partnership shall
be an admission that the Action is a proper subject of indemnification
pursuant to this Article XI. The Indemnitee at any time may elect to
participate in (but not conduct or control) such defense at its expense,
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and the Partnership shall not be responsible for the Indemnitee's costs of
participation (including attorneys, accountants, and in-house counsel
fees). In either event, the parties shall cooperate in the defense of such
Action. The Partnership in the defense of any Action shall not, except
with the consent of the Indemnitee claiming indemnification under Article
XI, cause to be entered any judgment or enter into any settlement which
provides for the release of the Partnership or any other Partner but does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnitee of a release equivalent to that provided to
the Partnership or any other Partner.
(b) The Indemnitee claiming indemnification under Article XI may, at
any time upon written notice to the Partnership, elect to conduct or
control its own defense in such Action (as opposed to merely participating
in the defense with counsel for the Partnership), but in such event,
provided that the Partnership has theretofore undertaken the defense of the
Indemnitee pursuant to Section 11.2(a) and subject to Section 11.2(c), such
Indemnitee shall cease to have the indemnification rights under Article XI,
and the Partnership shall no longer be obligated to continue the defense of
the Limited Partner, with respect to such Action.
(c) If the Partnership has assumed the defense of any Action under
clause (ii) of the first sentence of Section 11.2(a), and if at any time
there exists a conflict of interest in defending both the Partnership and
the Indemnitee, as determined in the reasonable judgment of counsel to the
Indemnitee, the Indemnitee shall so notify the Partnership and the
Indemnitee may, upon written notice to the Partnership delivered promptly
thereafter, elect to defend itself in such Action with counsel selected by
the Indemnitee, but reasonably acceptable to the Partnership, at the
expense of the Partnership. Following the assumption of defense by an
Indemnitee under this Section 11.2(c), an Indemnitee may not enter into any
settlement without the prior written consent of the Partnership, which
consent shall not be unreasonably withheld.
Section 11.3. Exculpation. No officer, employee or agent shall have
-----------
any liability to the Partnership or any Partner for monetary damages for any
action taken, or any failure to take any action, in such capacity, except
liability for (a) any improper financial benefit received by such Person; (b) an
intentional infliction of harm on the Partnership or any Partner; (c) acts or
omissions not in good faith or which involve intentional misconduct; and (d) any
knowing violation of law.
Section 11.4. No Liability of Directors and Others. Notwithstanding
------------------------------------
anything to the contrary contained herein, no
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recourse shall be had by the Partnership or any Partner against any director,
shareholder, officer, employee, agent or attorney of the General Partner for any
act or omission of the General Partner or any obligation or liability of the
General Partner under this Agreement, and none of the foregoing shall have any
personal liability for or with respect to any of the foregoing; provided that
--------
the foregoing shall not relieve any officer or director of the General Partner
of any liability in his capacity as such.
ARTICLE XII
-----------
RIGHTS UNDER THE EXCHANGE RIGHTS AGREEMENT
------------------------------------------
THCR, the Initial Limited Partner and TTMI have entered into the
Exchange Rights Agreement, substantially in the form of Exhibit A to this
Agreement.
Section 12.1. Transfer Pursuant to Exchange Rights Agreement.
----------------------------------------------
Notwithstanding anything to the contrary contained in this Agreement, the
Partners hereby consent to the Transfer of Partnership Interests pursuant to the
terms of such Exchange Rights Agreement, without compliance with any of the
other provisions of this Agreement.
Section 12.2. Subject to the Exchange Rights Agreement. The Initial
----------------------------------------
Limited Partner, TTMI and all their respective subsequent transferees shall be
entitled to the benefits of, and subject to the burdens of, the Exchange Rights
Agreement, including, but not limited to, the "Conversion Right" of the Company
to require any such transferee (other than the Initial Limited Partner and his
Permitted Holders) to exchange its Partnership Interests for shares of Common
Stock on the terms and subject to the conditions set forth therein.
ARTICLE XIII
------------
AMENDMENT OF PARTNERSHIP AGREEMENT, MEETINGS
--------------------------------------------
Section 13.1. Amendments.
----------
(a) This Agreement may not be amended unless such amendment is
approved by the General Partner, with the consent of a majority of the
Special Committee, and by the Consent of the Limited Partners, except as
provided below in this Section 13.1.
(b) Notwithstanding Section 13.1(a), the General Partner, with the
consent of a majority of the Special Committee, shall have the power,
without the Consent of the Limited Partners but after five Business Days
notice to the
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<PAGE>
Limited Partners, to amend this Agreement as may be required
to facilitate or implement any of the following purposes:
(i) to add to the obligations of the General Partner or
surrender any right or power granted to the General Partner for the
benefit of the Limited Partners;
(ii) to reflect the admission, substitution, termination, or
withdrawal of Partners after the date hereof in accordance with
Article IX or XII of this Agreement, provided that the General Partner
shall not be required to give the notice referred to in the first
paragraph of this subsection (b) in respect of a transfer of
Partnership Interests pursuant to Article XII hereof;
(iii) to reflect a change that is of an inconsequential nature and
does not adversely affect the Limited Partners, or to cure any
ambiguity, correct or supplement any provision in this Agreement not
inconsistent with law or with other provisions, or make other changes
with respect to matters arising under this Agreement that will not be
inconsistent with law or with the provisions of this Agreement; and
(iv) to satisfy any requirements, conditions, or guidelines
contained in any order, directive, opinion, ruling or regulation of a
federal or state agency or contained in federal or state law.
The General Partner will provide notice to the Limited Partners
promptly after any action under this Section 13.1(b) is taken.
(c) Notwithstanding Sections 13.1(a) and (b) hereof, this Agreement
shall not be amended without the prior written consent of each Partner
adversely affected if such amendment would (i) convert a Limited Partner's
interest in the Partnership into a general partner's interest, (ii) modify
the limited liability of a Limited Partner, (iii) alter rights of the
Partners to receive allocations and distributions pursuant to Articles V
and VI hereof, (iv) alter or modify the Rights set forth in Article XII
except in compliance therewith, (v) amend this Section 13.1(c), (vi) alter
such Partner's rights to transfer its Partnership Interests, or (vii) amend
Section 4.1(c), 7.8, 10.8, Article XI or 13.2(d). Further, no amendment
may alter the restrictions on the General Partner's authority set forth in
Section 7.2 without the Consent specified in that section.
(d) Notwithstanding Section 13.1(a) hereof, no amendment of Section
7.4 shall be effective unless
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<PAGE>
appropriate corresponding modifications are made to Article XII and the
Registration Rights Agreement to preserve the financial terms of the
Limited Partners' rights thereunder.
(e) Any amendment, modification or repeal of Section 7.8 or Article
XI or any provision thereof shall be prospective only and shall not in any
way affect the rights to indemnification and limitations on the General
Partner's liability to the Partnership and the Limited Partners as in
effect immediately prior to such amendment, modification or repeal with
respect to claims arising from or relating to matters occurring, in whole
or in part, prior to such amendment, modification or repeal, regardless of
when such claims may arise or be asserted.
Section 13.2. Meetings of the Partners; Notices to Partners.
---------------------------------------------
(a) Meetings of the Partners may be called by the General Partner or
by any Limited Partner to act on any matter specified herein or in the Act
to be voted on or consented to by the Partners. The call shall state the
nature of the business to be transacted. Notice of any such meeting shall
be given to all Partners not less than seven (7) Business Days prior to the
date of such meeting. Partners may vote in person or by proxy at such
meeting. Whenever the vote or Consent of the Limited Partners is permitted
or required under this Agreement, such vote or Consent may be given at a
meeting of Partners or may be given in accordance with the procedure
prescribed in Section 13.2(b) hereof. Except as otherwise expressly
provided in this Agreement, the consent of holders of a majority of the
Partnership Interests shall control.
(b) Any action required or permitted to be taken at a meeting of the
Partners may be taken without a meeting if a written consent setting forth
the action so taken is (i) signed by Partners holding a majority of the
Partnership Interests of the Partners (or such other percentage as is
expressly required by this Agreement) and (ii) in the case of any matter
that would otherwise require the approval of a majority of the Special
Committee, such consent is approved by a majority of the Special Committee.
Such consent may be in one instrument or in several instruments, and shall
have the same force and effect as a vote of a majority of the Partnership
Interests of the Partners (or such other percentage as is expressly
required by this Agreement). Such consent shall be filed with the General
Partner and copies thereof delivered to all Partners. An action so taken
shall be deemed to have been taken at a meeting held on the effective date
so certified.
(c) Each Limited Partner may authorize any Person or Persons to act
for him by proxy on all matters in which a
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Limited Partner is entitled to participate, including waiving notice of any
meeting, or voting or participating at a meeting. Every proxy must be
signed by the Limited Partner or his attorney-in-fact. No proxy shall be
valid after the expiration of 11 months from the date thereof unless
otherwise provided in the proxy. Every proxy shall be revocable at the
pleasure of the Limited Partner executing it. No such proxy and no such
revocation shall be effective unless a copy thereof has been delivered to
the General Partner.
(d) Whenever the Consent of the Limited Partners is required
hereunder, the General Partner shall provide a notice to each Partner who
is a Limited Partner on the date the notice is given setting forth the
matter(s) as to which it proposes to seek such Consent at least five (5)
Business Days in advance of the date upon which such Consent is sought.
ARTICLE XIV
-----------
CERTIFICATE OF INTEREST
-----------------------
Section 14.1. Form of Certificate of Interest. The interest of each
-------------------------------
Partner in the Partnership shall be evidenced by a Certificate of Interest (each
a "Certificate of Interest"). A certificate transfer ledger (the "Certificate
Transfer Ledger") recording the issue and transfer of Certificates of Interest
in the Partnership shall be maintained at the principal office of the
Partnership. Each such Certificate of Interest shall be serially numbered and
shall be issued by the General Partner to the lawful holder of an interest in
the Partnership, upon payment of the full amount of the Capital Contributions
then due with respect to the Partnership Interest represented by such
Certificate of Interest. All Certificates of Interest shall be executed in the
name of the Partnership by the General Partner. Each Certificate of Interest
shall state on its face the name of the registered holder thereof and the then
interest in the Partnership held by the holder thereof; and shall bear, on both
sides thereof, a statement of the restrictions imposed by Section 105 of the
Casino Control Act. Effective on the date hereof, the General Partner and the
Initial Limited Partner shall exchange their respective Certificates of Interest
(which shall be canceled) for new Certificates of Interest reflective of their
respective interests in the Partnership as set forth on Schedule I hereto.
Section 14.2. Transfers of Certificates of Interest. Certificates of
-------------------------------------
Interest in the Partnership may be transferred by the lawful holders thereof
only in connection with the pledge or transfer of all or part of the interest of
such holder in the Partnership, and only in accordance with the provisions of
this Agreement. All such transfers shall be effected by duly executed
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and acknowledged instruments of assignment, each of which shall be duly recorded
on the Certificate Transfer Ledger. No effect shall be given to any purported
assignment of a Certificate of Interest, or transfer of the interest in the
Partnership evidenced thereby, unless such assignment and transfer shall be in
compliance with the terms and provisions of this Agreement, and any attempted
assignment or transfer in contravention hereof shall be ineffectual.
Section 14.3. Lost, Stolen, Destroyed or Mutilated Certificates of
----------------------------------------------------
Interest. In the event that a Certificate of Interest shall be lost, stolen,
--------
destroyed or mutilated, the Partnership may cause a replacement Certificate of
Interest to be issued upon such terms and conditions as shall be fixed by the
General Partner, including, without limitation, provision for indemnity and the
posting of a bond or other adequate security as security therefor. No
replacement Certificate of Interest shall be issued to any person unless such
person has surrendered the Certificate of Interest to be replaced, or has
complied with the terms of this Section 14.3.
Section 14.4. Inspection of Certificate Transfer Ledger. The
-----------------------------------------
Certificate Transfer Ledger containing the names and addresses of all Partners
and the interest of each Partner in the Partnership shall be open to the
inspection of the Partners at the principal office of the Partnership during
usual business hours upon request of any Partner. Such Certificate Transfer
Ledger shall, in addition, be available for inspection by the Casino Control
Commission and the Division of Gaming Enforcement of the State of New Jersey and
each of their respective authorized agents at all reasonable times without
notice.
ARTICLE XV
----------
REGULATORY REQUIREMENTS
-----------------------
Section 15.1. Applicable Regulatory Authority and CCC Regulation.
--------------------------------------------------
Notwithstanding anything to the contrary in this Agreement:
(a) This Agreement will be deemed to include all provisions required
by the Casino Control Act, the Indiana Riverboat Act, and the Mississippi
Gaming Control Act and to the extent that anything contained in this
Agreement is inconsistent with such acts, the provisions of such acts shall
govern. All provisions of the Casino Control Act, the Indiana Riverboat
Act, and the Mississippi Gaming Control Act to the extent required by law
to be included in this Agreement, are incorporated herein by reference as
if fully restated in this Agreement.
(b) If the continued holding of a Partnership Interest by any Partner
will disqualify the Partnership to
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continue as the owner and operator of a casino licensed in the State of New
Jersey under the provisions of the Casino Control Act, such Partner shall
enter into such escrow, trust or similar arrangement as may be required by
the Commission under the circumstances. It is the intent of this Section
15.1 to set forth procedures to permit the Partnership to continue, on an
uninterrupted basis, as the owner and operator of a casino licensed under
the provisions of the Casino Control Act.
(c) All transfers (as defined by the Casino Control Act and the
governing laws, statutes rules and regulations of any Applicable Regulatory
Authority) of securities (as defined by the Casino Control Act and the
governing laws, statutes rules and regulations of any Applicable Regulatory
Authority), shares and other interests in the Partnership shall be subject
to the right of prior approval by the Applicable Regulatory Authority; and
(b) the Partnership shall have the absolute right to repurchase in
accordance with Section 15.3, any security, share or other interest in the
Partnership in the event that the Applicable Regulatory Authority
disapproves a transfer in accordance with the provisions of the Casino
Control Act.
(d) Each Partner hereby agrees to cooperate reasonably and promptly
with the others in obtaining any and all licenses, permits or approvals
required by any Applicable Regulatory Authority or deemed expedient by the
Partners.
Section 15.2. Additional Applicable Regulatory Authority Regulation.
-----------------------------------------------------
No Person may become the Beneficial Owner of five percent (5%) or more of any
class or series of Partnership Interests unless such Person agrees in writing
to: (i) provide to the Applicable Regulatory Authorities information regarding
such Person, including without limitation thereto, information regarding other
gaming-related activities of such Person and financial statements, in such form,
and with such updates, as may be required by the Applicable Regulatory
Authorities; (ii) respond to written or oral questions that may be propounded by
the Applicable Regulatory Authorities and (iii) consent to the performance of
any background investigation that may be required by the IGC, including without
limitation thereto, an investigation of any criminal record of such Person.
Section 15.3. Disqualified Holders. Notwithstanding any other
--------------------
provision of this Agreement, Partnership Interests held by a Disqualified Holder
(or in the case of a Disqualified Holder of securities of the General Partner,
the corresponding Partnership Interest of the General Partner) shall be subject
to redemption at any time by the Partnership by action of the General Partner,
pursuant to this Section 15.3 as follows:
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(a) the redemption price of the Partnership Interest to be redeemed
pursuant to this Section 15.3 shall be equal to the Fair Market Value of
such Partnership Interest or such other redemption price as required by
pertinent state or federal law pursuant to which the redemption is
required;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof; provided, however, in the
case of a redemption mandated by the CCC, the redemption price shall be
paid in cash;
(c) if less than all the Partnership Interest held by Disqualified
Holders are to be redeemed, the Partnership Interest to be redeemed shall
be selected in such manner as shall be determined by the General Partner,
which may include selection first of the most recently purchased portion
thereof, selection by lot, or selection in any other manner determined by
the General Partner;
(d) at least thirty (30) days' written notice of the Redemption Date
shall be given to the record holders of the Partnership Interest selected
to be redeemed (unless waived in writing by any such holder); provided,
however, that the Redemption Date shall be deemed to be the date on which
written notice shall be given to record holders if the cash or Redemption
Securities necessary to effect the redemption shall have been deposited in
trust for the benefit of such record holders and subject to immediate
withdrawal by them upon surrender of the Certificates of Interests for
their Partnership Interests to be redeemed;
(e) from and after the Redemption Date or such earlier date as
mandated by pertinent state or federal law, any and all rights of whatever
nature, which may be held by the Beneficial Owners of Partnership Interests
selected for redemption (including without limitation any rights to vote or
participate in distribution) shall cease and terminate and they shall
thenceforth be entitled only to receive the cash or Redemption Securities
payable upon redemption; and
(f) such other terms and conditions as the General Partner shall
determine.
ARTICLE XVI.
------------
GENERAL PROVISIONS
------------------
Section 16.1. Notices. All notices, offers or other communications
-------
required or permitted to be given pursuant to this Agreement shall be in writing
and may be personally served or sent by United States mail and shall be deemed
to have been given
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when delivered in person or three business days after deposit in United States
mail, registered or certified, postage prepaid, and properly addressed, by or to
the appropriate party. For purposes of this Section 16.1, the addresses of the
parties hereto shall be as set forth below their name on the signature page
hereof. The address of any party hereto may be changed by a notice in writing
given in accordance with the provisions hereof.
Section 16.2. Controlling Law. This Agreement and all questions
---------------
relating to its validity, interpretation, performance and enforcement
(including, without limitation, provisions concerning limitations of actions),
shall be governed by and construed in accordance with the laws of the State of
Delaware, notwithstanding any conflict-of-laws doctrines of such state or other
jurisdiction to the contrary.
Section 16.3. No Third Party Beneficiaries. No creditor or other
----------------------------
third party shall have the right to enforce any right or obligation of any
Partner to make Capital Contributions or to pursue any other right or remedy
hereunder or at law or in equity, it being understood and agreed that the
provisions of this Agreement shall be solely for the benefit of, and may be
enforced solely by, the parties hereto and their respective successors and
assigns. None of the rights or obligations of the Partners herein set forth to
make Capital Contributions to the Partnership shall be deemed an asset of the
Partnership for any purpose by any creditor or other third party, nor may such
rights or obligations be sold, transferred or assigned by the Partnership or
pledged or encumbered by the Partnership to secure any debt or other obligation
of the Partnership or of any of the Partners.
Section 16.4. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts, each of which shall be deemed to be an
original as against any party whose signature appears thereon, and all of which
shall together constitute one and the same instrument. This Agreement shall
become binding when one or more counterparts hereof, individually or taken
together, shall bear the signatures of all of the parties reflected hereon as
the signatories.
Section 16.5. Provisions Separable. The provisions of this Agreement
--------------------
are independent of and separable from each other, and no provision shall be
affected or rendered invalid or unenforceable by virtue of the fact that for any
reason any other or others of them may be invalid or unenforceable in whole or
in part.
Section 16.6. Entire Agreement. This Agreement (together with the
----------------
Exhibit and Schedules hereto) contains the entire understanding among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior and contemporaneous agreements and understandings, inducements or
conditions, express or implied, oral or written, except as herein
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contained. The express terms hereof control and supersede any course of
performance and/or usage of the trade inconsistent with any of the terms hereof.
This Agreement may not be modified or amended other than by an agreement in
writing.
Section 16.7. Paragraph Headings. The paragraph headings in this
------------------
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
Section 16.8. Gender, Etc. Words used herein, regardless of the
------------
number and gender specifically used, shall be deemed and construed to include
any other number, singular or plural, and any other gender, masculine, feminine
or neuter, as the context indicates is appropriate.
Section 16.9. Number of Days. In computing the number of days (other
--------------
than Business Days) for purposes of this Agreement, all days shall be counted,
including Saturdays, Sundays and holidays; provided, however, that if the final
-------- -------
day of any time period falls on a date which is not a Business Day, then the
final day shall be deemed to be the next Business Day.
Section 16.10. Partners Not Agents. Nothing contained herein shall
-------------------
be construed to constitute any Partner the agent of another Partner, except as
specifically provided herein, or in any manner to limit the Limited Partners in
the carrying on of their own respective businesses or activities.
Section 16.11. Assurances. Each of the Partners shall hereafter
----------
execute and deliver such further instruments and do such further acts and things
as may be reasonably required or useful to carry out the intent and purpose of
this Agreement and as are not inconsistent with the terms hereof.
Section 16.12. Successors and Assigns. This Agreement shall be
----------------------
binding upon and inure to the benefit of the parties and their heirs, executors,
administrators, successors, legal representatives and permitted assigns,
including any pledgee upon the foreclosure of any pledge of a Partner's
Partnership Interest in the Partnership.
Section 16.13. Waiver. No failure by any party to insist upon the
------
strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon a breach thereof
shall constitute waiver of any such breach or any other covenant, duty,
agreement or condition.
-63-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused
this Agreement to be executed on their behalf as of the date first above
written.
GENERAL PARTNER:
---------------
TRUMP HOTELS & CASINO RESORTS, INC.
By: _________________________________
Name:
Title:
Address: Mississippi Avenue and
The Boardwalk
Atlantic City,
New Jersey 08401
LIMITED PARTNERS: (Addresses
----------------
are as set forth on Schedule I):
DONALD J. TRUMP
By: ________________________________
Donald J. Trump
TRUMP TAJ MAHAL, INC.
By: ________________________________
Donald J. Trump
President
TM/GP Corporation
By: ________________________________
Name: Nicholas F. Moles
Title: Secretary
-64-
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on April __, 1996, before me, the subscriber,
personally appeared Donald J. Trump, an individual, who, I am satisfied, is the
person who has signed the within instrument on his own behalf, and I having
first made known to him the contents thereof he thereupon acknowledged that he
signed and delivered the said instrument in his personal capacity as an
individual, and that the within instrument is his voluntary act and deed.
________________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on April __, 1996, before me, the subscriber,
personally appeared _______________, the _____________ of Trump Hotels & Casino
Resorts, Inc., a Delaware corporation, who, I am satisfied, is the person who
has signed the within instrument on behalf of such corporation, and I having
first made known to him the contents thereof he thereupon acknowledged that he
signed and delivered the said instrument in his capacity as such officer
aforesaid, and that the within instrument is the voluntary act and deed of said
corporation, made by virtue of authority from its Board of Directors.
________________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on April __, 1996, before me, the subscriber,
personally appeared Donald J. Trump, the President of Trump Taj Mahal, Inc., a
New Jersey corporation, who, I am satisfied, is the person who has signed the
within instrument on behalf of such corporation, and I having first made known
to him the contents thereof he thereupon acknowledged that he signed and
delivered the said instrument in his capacity as such officer aforesaid, and
that the within instrument is the voluntary act and deed of said corporation,
made by virtue of authority from its Board of Directors.
________________________________
Notary Public
<PAGE>
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
BE IT REMEMBERED, that on April __, 1996, before me, the subscriber,
personally appeared Nicholas F. Moles, the Secretary of TM/GP Corporation, a New
Jersey corporation, who, I am satisfied, is the person who has signed the within
instrument on behalf of such corporation, and I having first made known to him
the contents thereof he thereupon acknowledged that he signed and delivered the
said instrument in his capacity as such officer aforesaid, and that the within
instrument is the voluntary act and deed of said corporation, made by virtue of
authority from its Board of Directors.
________________________________
Notary Public
<PAGE>
SCHEDULE I
----------
AGGREGATE CAPITAL CONTRIBUTIONS
<TABLE>
<CAPTION>
Partner Contribution Percentage Interest
------------------------------------- ---------------- -------------------
<S> <C> <C>
Trump Hotels & Casino Resorts, Inc. $ ______________ __% general partner
Donald J. Trump $ ______________ __% limited partner
725 Fifth Avenue
New York, N.Y. 10022
Trump Taj Mahal, Inc. $ ______________ __% limited partner
1000 The Boardwalk
Atlantic City, N.J. 08401
TM/GP Corporation $ ______________ __% limited partner
1000 The Boardwalk
Atlantic City, N.J. 08401
</TABLE>
<PAGE>
SCHEDULE II
-----------
CAPITAL CONTRIBUTIONS PRIOR TO APRIL 16, 1996
<TABLE>
<CAPTION>
Partner Contribution
-------------------------------------- ------------
<S> <C>
Trump Hotels & Casino Resorts, Inc. $__________
Donald J. Trump $__________
</TABLE>
<PAGE>
SCHEDULE III
------------
CAPITAL CONTRIBUTIONS IN CONNECTION
WITH THE MERGER TRANSACTIONS
<TABLE>
<CAPTION>
Partner Contribution
------------------------------------- ----------------
<S> <C>
Trump Hotels & Casino Resorts, Inc. $0
Donald J. Trump $ ______________
Trump Taj Mahal, Inc. $ ______________
TM/GP Corporation $ ______________
</TABLE>