Exhibit 3.20
THIRD AMENDED AND RESTATED
AGREEMENT OF
LIMITED PARTNERSHIP
OF
INDIANA GAMING COMPANY, L.P.
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS...................................................................................3
1.1 Definitions.................................................................................3
ARTICLE II FORMATION AND NAME; PURPOSES; PARTNERSHIP POWERS..............................................8
2.1 Continuation and Name.......................................................................8
2.2 Purposes....................................................................................9
2.3 Partnership Powers..........................................................................9
ARTICLE III PRINCIPAL OFFICE..............................................................................9
ARTICLE IV TERM..........................................................................................9
ARTICLE V CAPITAL CONTRIBUTIONS.........................................................................9
5.1 Partner Contributions.......................................................................9
5.2 Loans to the Partnership....................................................................9
ARTICLE VI CAPITAL ACCOUNTS; ALLOCATIONS OF INCOME, PROFITS AND LOSSES..................................10
6.1 Capital Accounts...........................................................................10
6.2 Allocation of Profits and Losses...........................................................10
6.3 Special Allocations........................................................................11
6.4 Allocations in Case of Transfers or Admissions.............................................12
6.5 Tax Allocations............................................................................13
ARTICLE VII ACCOUNTING AND TAX MATTERS...................................................................13
7.1 Partnership Books..........................................................................13
7.2 Fiscal and Tax Years.......................................................................13
7.3 Accounting Method..........................................................................14
7.4 Tax Matters Partner........................................................................14
7.5 Tax Elections..............................................................................14
7.6 Tax Returns................................................................................14
7.7 Partnership Classification.................................................................14
ARTICLE VIII DISTRIBUTIONS................................................................................14
8.1 Determination of Cash Flow.................................................................14
8.2 Amounts and Time of Distribution...........................................................14
ARTICLE IX MANAGEMENT OF THE PARTNERSHIP................................................................15
9.1 Management; Management Agreement...........................................................15
9.2 Limitation on Powers.......................................................................15
9.3 Non-Participation in Management by Limited Partners........................................15
9.4 Authority of the General Partner...........................................................16
ARTICLE X LIMITATION OF LIABILITY; INDEMNIFICATION.....................................................16
10.1 Exoneration................................................................................16
10.2 Indemnification............................................................................16
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10.3 Legal Expenses.............................................................................16
ARTICLE XI REIMBURSEMENT OF GENERAL PARTNER.............................................................17
11.1 Compensation and Expense Reimbursement of Partners.........................................17
ARTICLE XII RESTRICTIONS ON TRANSFERS OF INTERESTS.......................................................17
ARTICLE XIII NO WITHDRAWAL OR PARTITION BY A PARTNER......................................................17
ARTICLE XIV DISSOLUTION..................................................................................18
14.1 Dissolution Not in Contravention of this Agreement.........................................18
ARTICLE XV LIQUIDATION AND DISTRIBUTION.................................................................18
15.1 Liquidating Partner........................................................................18
15.2 Winding Up.................................................................................18
15.3 Distribution Following Liquidation.........................................................19
ARTICLE XVI OTHER BUSINESS; NO PARTNERSHIP OPPORTUNITY...................................................20
16.1 Other Business; Partnership Opportunity....................................................20
16.2 Affiliate Transactions.....................................................................20
ARTICLE XVII MISCELLANEOUS................................................................................20
17.1 Governing Law..............................................................................20
17.2 Title to Assets; Partition.................................................................20
17.3 Headings...................................................................................21
17.4 Entire Agreement, Amendments and Waivers...................................................21
17.5 Remedies...................................................................................21
17.6 Further Assurances.........................................................................21
17.7 Counterparts...............................................................................21
17.8 Notices....................................................................................21
17.9 No Third-Party Beneficiary.................................................................22
17.10 Severability...............................................................................22
17.11 Successors and Assigns.....................................................................23
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THIRD AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP (as
amended from time to time, this "AGREEMENT") is made as of this 27th day of
April, 2001, by and among Indiana Gaming Company, an Indiana corporation
("INDIANA GAMING"), as its General Partner, and Indiana Gaming II, L.P., an
Indiana limited partnership ("GAMING II"), the sole partners of which are
Indiana Gaming Holding Company, an Indiana corporation wholly owned by Argosy
Gaming Company, a Delaware corporation ("Argosy"), and Indiana Gaming.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the General Partner formed Indiana Gaming Company, L.P. (the
"PARTNERSHIP") as a limited partnership by filing a certificate of limited
partnership with the Secretary of State of Indiana on August 29, 1993;
WHEREAS, Indiana Gaming, Conseco Entertainment, L.L.C., an Indiana
limited liability company ("CONSECO"), Centaur, Inc. ("CENTAUR"), and RJ
Investments, Inc., an Indiana corporation ("RJ, INC."), entered into the Second
Amended and Restated Agreement of Limited Partnership of Indiana Gaming Company,
L.P. (the "1996 AGREEMENT") dated February 21, 1996;
WHEREAS, Conseco has sold all of its Interest in the Partnership,
which consisted of Common Equity, Preferred Equity and a Capital Loan, to Gaming
II pursuant to that certain Partnership Interest Purchase and Sale Agreement,
dated December 22, 2000, between Indiana Gaming, Argosy, Conseco, and Conseco,
Inc.;
WHEREAS, Gaming II was admitted to the Partnership as a Substitute
Partner, as such term is defined in the 1996 Agreement, pursuant to that certain
Agreement and Consent, dated as of February 23, 2001, by and between Centaur,
Indiana Gaming and Gaming II;
WHEREAS, Centaur has sold all of its Interest in the Partnership,
including the interest of R.J. Inc. which Centaur had previously acquired by the
merger of R.J. Inc. with and into Centaur, to Gaming II pursuant to that certain
Partnership Interest Purchase and Sale Agreement, dated March 8, 2001, between
Indiana Gaming, Argosy, Centaur and Gaming II;
WHEREAS, Indiana Gaming and Gaming II desire to amend and restate the
1996 Agreement in its entirety to reflect, among other things, the withdrawal of
Conseco and Centaur from the Partnership.
NOW, THEREFORE, the parties hereto agree to amend and restate the 1996
Agreement in its entirety to read as follows:
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ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. When used in this Agreement, the following terms
shall have the meanings set forth below.
"ACT" means the Indiana Revised Uniform Limited Partnership Act, as
amended from time to time, and any successor statutes thereto.
"ADJUSTED CAPITAL ACCOUNT DEFICIT" means with respect to any Partner,
the deficit balance, if any, in the Partner's Capital Account as of the end of
the relevant taxable year, after giving effect to the following adjustments: (i)
credit to such Capital Account any amounts which the Partner is obligated to
restore pursuant to Regulation Section 1.704-1(b)(2)(ii)(c), or is deemed
obligated to restore pursuant to the penultimate sentence of Regulation Sections
1.704-2(g)(1) and 1.704-2(i)(5) and (ii) debit to such Capital Account the items
described in Regulation Sections 1.704-1(b)(2)(ii)(d)(4),
1.704-1(b)(2)(ii)(d)(5), and 1.704-1(b)(2)(ii)(d)(6). The foregoing definition
of Adjusted Capital Account Deficit is intended to comply with the provisions of
Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently
therewith.
"ADJUSTED PREFERRED EQUITY BALANCE" means, with respect to each
Partner, the aggregate amount of Preferred Equity contributed to the Partnership
by such Partner with respect to the Interest held by such Partner, reduced by
the aggregate amount of any distributions previously received by such Partner
pursuant to SECTION 8.2(d) as a return of Preferred Equity (and any Partner Tax
Payment to the extent it represents a return of capital).
"AFFECTED GAIN" has the meaning set forth in SECTION 6.5(d).
"AFFILIATE" means, with respect to any Partner (or with respect to any
other individual or Entity whose affiliates are relevant for purposes of any of
the provisions of this Agreement), any Entity which directly or indirectly
through one or more intermediaries, Controls, is Controlled by, or is under
common Control with, any Partner or any such person or Entity.
"BANKRUPTCY OR INSOLVENCY" shall be deemed to have occurred with
respect to any Partner or other person if such Partner or other person shall
file in any court pursuant to any statute of the United States or of any state a
petition in bankruptcy or insolvency, or shall file for reorganization or for
the appointment of a receiver or a trustee of all or a material portion of such
Partner or other person's property, or if any such Partner or other person shall
make an assignment for the benefit of creditors, admit in writing its inability
to pay its debts as they fall due or seek, consent to or acquiesce in the
appointment of a trustee, receiver or liquidator of any material portion of its
property. If there shall be filed against any Partner or other person in any
court, pursuant to any statute of the United States or of any state, a petition
in bankruptcy or insolvency, or for reorganization, or for the appointment of a
receiver or trustee of all or a substantial portion of such Partner or other
person's property, and within ninety (90) days after
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the commencement of any such proceeding, such petition shall not have been
dismissed, then such Partner or other person against whom such petition has been
filed shall be considered Bankrupt or Insolvent for purposes of this Agreement.
In addition, if the whole or any portion of the Interest of any Partner in the
Partnership is subject to levy or attachment, and such levy or attachment is not
released or discharged within ninety (90) days, such Partner or other person
shall be deemed Bankrupt or Insolvent for purposes of this Agreement.
"CAPITAL ACCOUNT" means, with respect to any Partner, the Capital
Account maintained for such Partner in compliance with Regulations Sections
1.704-1(b) and 1.704-2, and shall be interpreted and applied in a manner
consistent with such Regulations. In the event the General Partner shall
reasonably determine that it is prudent to modify the manner in which the
Capital Accounts, or any debits or credits thereto are computed in order to
comply with such Regulations, the General Partner may make such modification;
provided that it is not likely to have a material effect on the amount
distributed to any Partner pursuant to ARTICLE XV hereof upon the dissolution of
the Partnership. The General Partner also shall (i) make any adjustments that
are necessary or appropriate to comply with Regulations Section
1.704-1(b)(2)(iv)(q), and (ii) make any appropriate modifications in the event
unanticipated events might otherwise cause this Agreement not to comply with
Regulations Sections 1.704-1(b) or 1.704-2.
"CAPITAL CONTRIBUTION" means, with respect to any Partner, the
aggregate amount of any money and the Gross Asset Value of any property (other
than money) contributed to the Partnership with respect to the Interest held by
such Partner, net of the amount of any debt to which such property is subject.
The principal amount of a promissory note which is not readily tradable on an
established securities market and which is contributed to the Partnership by the
maker of the note shall not be included in the Capital Account of any person
until the Partnership makes a taxable disposition of the note or until (and to
the extent) such Partner makes principal payments on the note, all in accordance
with Regulations Section 1.704-1(b)(2)(iv)(d)(2).
"CAPITAL LOAN" has the meaning set forth in SECTION 5.2(b).
"CASH FLOW", for any period, means the amount by which (i) the gross
cash receipts of the Partnership from any source for such period (including, but
not limited to, capital contributions, loans, receipts pursuant to casino
operations or other Partnership operations, proceeds of the sale of any
Partnership Property, the net receipts derived from insurance payments, rents,
damage recoveries, condemnation proceeds and any and all other cash receipts
from any source), EXCEED (ii)(a) the aggregate of all cash disbursements for
such period (including, but not limited to, any management fees paid to the
General Partner or any successor manager, Partnership administrative costs,
reimbursements paid to the General Partner or its Affiliates, principal and
interest due and payable on any Capital Loan and other Partnership debt and
capital expenditures) and (b) amounts determined by the General Partner to be
reasonable and customary reserves in accordance with Generally Accepted
Accounting Principles for either future operating expenses or capital items for
the Partnership.
"CASINO" means the excursion boat gaming operations and related
dockside pavilion, restaurants, bars, entertainment, parking facilities, hotel
and other operations conducted in the City.
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"CITY" means the city of Lawrenceburg, Indiana.
"CODE" means the Internal Revenue Code of 1986, as amended from time
to time (or any corresponding provisions of succeeding law).
"COMMON EQUITY" means capital contributions of the Partners designated
as common equity.
"CONTROL" means the ability, whether by the direct or indirect
ownership of shares or other equity interests, by contract or otherwise, to
elect a majority of the directors of a corporation, to select the managing
partner of a partnership, or otherwise to select, or have the power to remove
and then select, a majority of those persons exercising governing authority over
an Entity. In the case of a limited partnership, the sole general partner, all
of the general partners to the extent each has equal management control and
authority, or the managing general partner or managing general partners thereof
shall be deemed to have control of such partnership and, in the case of a trust,
any trustee thereof or any person having the right to select any such trustee
shall be deemed to have control of such trust.
"DEBT DOCUMENTS" means the documents evidencing any borrowings of the
Partnership.
"DISSOLUTION OR TERMINATION" shall be deemed to have occurred (i) in
the case of a corporate Partner or other person upon the earlier of the adoption
of a plan of liquidation by such Partner or other person or the effective date
of dissolution in accordance with applicable statutory law and (ii) in the case
of a partnership Partner or other person, upon the date of dissolution or
termination of such partnership in accordance with the provisions of the
governing partnership agreement or applicable statutory law.
"ENTITY" means any general partnership, limited partnership,
corporation, joint venture, trust, business trust, limited liability company,
cooperative, association or other entity.
"FISCAL YEAR" means the Partnership accounting year ending on December
31, except that in the final year of the Partnership, the Fiscal Year shall end
on the later of (a) the date of dissolution and liquidation, or (b) the date of
final distribution.
"GENERAL PARTNER" means Indiana Gaming, the sole general partner of
the Partnership, and any successor to Indiana Gaming.
"GROSS ASSET VALUE" means, with respect to any asset, the asset's
adjusted basis for federal income tax purposes, as adjusted from time to time to
reflect the adjustments that are required or permitted by, or are consistent
with, Regulations Section 1.704-1(b)(2)(iv)(d)-(g), (j)-(n), and (p)-(r);
provided, however, that:
(i) the initial fair market value of any asset contributed by a
Partner to the Partnership shall be as agreed by the contributing Partner
and the General Partner; and
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(ii) the adjustments permitted pursuant to an event described
within Regulations Section 1.704-1(b)(2)(iv)(f)(5) (excluding the
liquidation of the Partnership described therein) shall be made only if the
General Partner reasonably determines that such adjustments are necessary
or appropriate to reflect the relative economic interests of the Partners
in the Partnership.
"IGC" means the Indiana Gaming Commission, and where the context so
requires, its staff members.
"INTEREST" means all of a Partner's economic rights and interests in
the Partnership in the Partner's capacity as a Partner, all as provided in this
Agreement, including, without limitation, any interest of such Partner in the
total capital, profits and losses of the Partnership. For purposes of ARTICLE
XII, and elsewhere as the context may require, "Interest" shall include a
Partner's interest as a lender and creditor with respect to any outstanding
Capital Loans made by such Partner.
"LIMITED PARTNER" means Gaming II and any other person or Entity (i)
the name of which is set forth on EXHIBIT A attached hereto and designated as
such or who is admitted to and has become a limited partner of the Partnership
pursuant to the terms of this Agreement and (ii) holds an Interest. "Limited
Partners" means all such persons in the event that there is more than one
Limited Partner at any time.
"LIQUIDATING PARTNER" has the meaning set forth in SECTION 15.1.
"MANAGEMENT AGREEMENT" has the meaning set forth in SECTION 9.1(B).
"NONRECOURSE DEDUCTIONS" has the meaning set forth in Regulations
Section 1.704-2(b). The amount of Nonrecourse Deductions for a Fiscal Year
equals the excess, if any, of the net increase, if any, in the amount of
Partnership Minimum Gain attributable to Nonrecourse Liabilities during the
Fiscal Year over the aggregate amount of any distributions during that Fiscal
Year of proceeds of a Nonrecourse Liability that are allocable to an increase in
Partnership Minimum Gain attributable to Nonrecourse Liabilities, determined
according to the provisions of Regulations Section 1.704-2(c).
"NONRECOURSE LIABILITY" has the meaning set forth in Regulations
Section 1.704-2(b)(3).
"PARTNER" means each of the General Partner and each of the Limited
Partners. "Partners" means all such persons.
"PARTNER MINIMUM GAIN" has the same meaning as "partner nonrecourse
debt minimum gain" set forth in Regulations Section 1.704-2(i)(2), and shall be
computed as provided in Regulations Section 1.704-2(i)(3).
"PARTNER NONRECOURSE DEBT" has the meaning set forth in Regulations
Section 1.704-2(b)(4).
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"PARTNER NONRECOURSE DEDUCTIONS" has the meaning set forth in
Regulations Section 1.704-2(i). The amount of Partner Nonrecourse Deductions
with respect to a Partner Nonrecourse Debt for a Fiscal Year equals the excess,
if any, of the net increase, if any, in the amount of Partner Minimum Gain
attributable to such Partner Nonrecourse Debt during that Fiscal Year over the
aggregate amount of any distributions during that Fiscal Year to the Partner
that bears the economic risk of loss for such Partner Nonrecourse Debt to the
extent such distributions are from the proceeds of such Partner Nonrecourse Debt
and are allocable to an increase in Partner Minimum Gain attributable to such
Partner Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i).
"PARTNER TAX PAYMENT" means an amount equal to the "Applicable Tax
Rate", as defined below, MULTIPLIED BY the estimated taxable income of the
Partnership, for the applicable period or taxable event, determined by the Tax
Matters Partner in accordance with then applicable federal income tax laws. The
term "Applicable Tax Rate" means five percent (5%) plus the greater of (i) the
highest individual or (11) the highest corporate, marginal federal income tax
rate in effect for the quarter with respect to which such determination is being
made.
"PARTNERSHIP OPPORTUNITY" means a business or other opportunity which
relates to the Casino and in which the Partnership has or would have an interest
or a reasonable expectancy, which shall specifically include any riverboat or
land-based gaming activity.
"PERCENTAGE INTEREST" means the percentage for each Partner as set
forth on EXHIBIT A, as the same may be adjusted from time to time in accordance
with this Agreement.
"PREFERRED EQUITY" means the capital contributions of the Partners
designated as preferred equity.
"PREFERRED EQUITY RETURN" means, with respect to each Partner that
makes a Preferred Equity contribution, the amount necessary for such Partner to
receive a pre-tax yield equal to fourteen percent (14%) per annum, determined on
the basis of a year of 365 or 366 days, as the case may be, for the actual
number of days in the period for which such Preferred Equity Return is being
determined, cumulative and compounded annually to the extent not distributed in
any given Fiscal Year, on the average daily balance of the Adjusted Preferred
Equity Balance during the period to which such Preferred Equity Return relates.
"PRIME" means the rate of interest publicly announced from time to
time by Wells Fargo, NA as its "prime rate".
"PROFITS AND LOSSES" and any reference to any item of income, gain,
loss or deduction thereof means, for each fiscal year or other period, an amount
equal to the Partnership's taxable income or loss for such year or period,
determined in accordance with Code Section 703(a) (for this purpose, all items
of income, gain, loss, or deduction required to be stated separately pursuant to
Code Section 702(a) shall be included in taxable income or loss), with the
following adjustments:
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(i) Any income of the Partnership that is exempt from federal
income tax and not otherwise taken into account in computing Profits or
Losses pursuant to this definition shall be added to such taxable income or
loss;
(ii) Any expenditures of the Partnership described in Code
Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures
pursuant to Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise
taken into account in computing Profits or Losses pursuant to this
definition shall be subtracted from such taxable income or loss;
(iii) In the event the Gross Asset Value of any Partnership asset
is adjusted pursuant to the definition of Gross Asset Value hereof, the
amount of such adjustment shall be taken into account as an item of income,
gain, loss or deduction (as applicable) for purposes of computing Profits
or Losses; and
(iv) Partnership items of income, gain, loss and deduction that
are specially allocated pursuant to SECTION 6.3 hereof shall not be taken
into account.
"PROPERTY" means the tangible and intangible assets and properties
owned or held by the Partnership.
"REGULATIONS" means the final or temporary regulations promulgated
from time to time under the Code (including corresponding provisions of
succeeding regulations).
"REGULATORY ALLOCATIONS" has the meaning set forth in SECTION 6.3(h).
"TAX MATTERS PARTNER" shall have the same meaning as ascribed to such
term in Section 6231(a)(7) of the Code and the regulations promulgated
thereunder.
"TRANSFER" means, with respect to any Partner, a sale, conveyance,
assignment, pledge, hypothecation, gift, encumbrance or other transfer or
disposition of an Interest or any part thereof or any interest therein or in any
Capital Loans of such Partner.
ARTICLE II
FORMATION AND NAME; PURPOSES; PARTNERSHIP POWERS
2.1 CONTINUATION AND NAME. The parties hereto, intending to share in
the profits and losses of the Partnership, hereby continue the Partnership as a
limited partnership pursuant to the Act for the purposes set forth in this
ARTICLE II. The name of the Partnership is and shall be "Indiana Gaming Company,
L.P." The Partnership shall execute and file all such documents and take all
such other actions as may be necessary to register such name in the State of
Indiana and any other appropriate jurisdictions, whether state or local. The
Partnership may also do business and own assets in or under any other name as
the General Partner may determine and the General Partner shall execute, publish
and/or file all assumed or fictitious names or other certificates as may be
required by law.
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2.2 PURPOSES. The purpose of the Partnership is to (a) operate a
riverboat or dockside gaming casino and related parking, hotel, restaurant, bar
and other entertainment facilities in Dearborn County, Indiana; and (b) do any
and all things necessary thereto or associated with the Casino.
2.3 PARTNERSHIP POWERS. The Partnership shall have all powers
permitted by law to a limited partnership, including, without limitation, the
power to do any act or thing and enter into any contract incidental to, or
necessary, proper or advisable for, the operation of the Casino or the
accomplishment or attainment of any purpose of the Partnership specified in this
Agreement.
ARTICLE III
PRINCIPAL OFFICE
The principal office of the Partnership shall be maintained at 777
Argosy Parkway, Lawrenceburg, Indiana 47025 or at such other location or
locations as the General Partner from time to time may select.
ARTICLE IV
TERM
The Partnership shall continue until December 31, 2024, unless (a)
extended by written agreement of the Partners or (b) earlier terminated pursuant
to ARTICLE XIV hereof.
ARTICLE V
CAPITAL CONTRIBUTIONS
5.1. PARTNER CONTRIBUTIONS.
(a) General Partner. The name, address, Adjusted Preferred Equity
Balance, amount of any outstanding Capital Loans and Percentage Interest of the
General Partner is set forth on EXHIBIT A attached hereto.
(b) Limited Partners. The name, address, Adjusted Preferred Equity
Balance, amount of any outstanding Capital Loans and Percentage Interest of each
Limited Partner is set forth on EXHIBIT A attached hereto.
5.2 LOANS TO THE PARTNERSHIP.
(a) Except as expressly authorized or required by this Agreement, no
Partner shall be obligated to lend or advance money to the Partnership. If,
without the prior written consent of the other Partners, a loan or advance not
otherwise provided for herein is made to the Partnership by a Partner, no such
loan or advance shall entitle the lending or advancing Partner
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to any increase in its Capital Account or to the payment of interest or other
consideration for the use of such funds.
(b) The Partners acknowledge that prior to the date hereof, Indiana
Gaming and Partners II have made or assumed, as the case may be, loans to the
Partnership and may from time to time, whenever the General Partner shall
determine that additional funds in excess of the Partner's Common Equity and
Preferred Equity are necessary, loan additional funds to the Partnership (each a
"CAPITAL LOAN"). Each Capital Loan shall bear interest at a rate equal to Prime
plus six percent (6%). Interest shall accrue on any Capital Loan and compound
quarterly to the extent unpaid. Principal on any Capital Loans shall be
amortized over eight (8) years with equal annual payments of principal. The
Partnership shall pay contemporaneously with distributions of Cash Flow pursuant
to SECTION 8.2 current and accrued interest, first, and then principal, second,
on the Capital Loans to the Partners, pro rata, in accordance with the principal
balances of their respective Capital Loans then outstanding.
ARTICLE VI
CAPITAL ACCOUNTS; ALLOCATIONS OF INCOME, PROFITS AND LOSSES
6.1 CAPITAL ACCOUNTS. The General Partner shall establish and
maintain a Capital Account for each Partner in accordance with the provisions
set forth in the definition thereof.
6.2 ALLOCATION OF PROFITS AND LOSSES.
(a) Except as otherwise provided in this ARTICLE VI, Profits for a
Fiscal Year shall be allocated in the following order and priority:
(i) first, if there have been any prior or contemporaneous
allocations of Losses, any Profits shall be allocated among the Partners in
accordance with and in proportion to such previously allocated Losses in
order to offset such allocations of Losses;
(ii) second, any remaining Profits shall be allocated to the
Partners which made contributions of Preferred Equity, pro rata, in
accordance with their relative Preferred Equity in an amount equal to the
excess of such Partners' Preferred Equity Return as of the end of such
Fiscal Year, over the aggregate Profits allocated to such Partners in prior
Fiscal Years under this Section 6.2(a)(ii); and
(iii) third, any remaining Profits shall be allocated among the
Partners in accordance with their respective Percentage Interests.
(b) ALLOCATION OF LOSSES. Losses of the Partnership for a Fiscal Year
shall be allocated in the following order and priority:
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(i) first, Losses shall be allocated to the Partners in
proportion to and to the extent of the excess, if any, of (1) the
cumulative Profits allocated to each Partner pursuant to Section 6.2(a)(ii)
hereof for all prior Fiscal Years, over (2) the cumulative Losses allocated
to such Partner pursuant to this Section 6.2(b)(i) for all prior Fiscal
Years; and
(ii) any remaining Losses shall be allocated among the Partners
in accordance with their Percentage Interests; provided, however, that the
Losses allocated to any Limited Partner shall not exceed the maximum amount
of Losses and other deductions that may be allocated to such Limited
Partner without causing the Limited Partner to have an Adjusted Capital
Account Deficit at the end of the Fiscal Year. All Losses or other
deductions allocated to a Limited Partner in excess of this limitation
shall be allocated among the Limited Partners in proportion to their
relative Percentage Interests (to the extent not constrained by this
SECTION 6.2(b)(ii)) with respect to the applicable period or event giving
rise to the Losses or deductions, after which all such Losses shall be
allocated to the General Partner.
6.3 SPECIAL ALLOCATIONS.
(a) PARTNERSHIP MINIMUM GAIN CHARGEBACK. Notwithstanding any other
provision of this ARTICLE VI, if there is a net decrease in Partnership Minimum
Gain during any Fiscal Year, determined in accordance with Regulations Section
1.704-2(d), each Partner shall be allocated Partnership items of income and gain
for such Fiscal Year equal to such Partner's share of net decrease in
Partnership Minimum Gain within the meaning of Regulations Section
1.704-2(g)(2), except to the extent not required by Regulations Section
1.704-2(f)(2), (3), (4) and (5). This SECTION 6.3(a) is intended to comply with
Regulations Section 1.704-2(f) and shall be applied and interpreted consistently
therewith.
(b) PARTNER MINIMUM GAIN CHARGEBACK. Notwithstanding any other
provision of this ARTICLE VI, if there is a net decrease in Partner Minimum
Gain attributable to Partner Nonrecourse Debt during any Fiscal Year,
determined in accordance with Regulations Section 1.704-2(i)(3), each Partner
who has a share of the Partner Minimum Gain attributable to such Partner
Nonrecourse Debt, determined in accordance with Regulations Section
1.704-2(i)(5), shall be allocated Partnership items of income and gain for
such Fiscal Year (and, if necessary, subsequent Fiscal Years) equal to such
Partner's share of the net decrease in Partner Minimum Gain, except to the
extent not required by Regulations Section 1.704-2(i)(4). This SECTION 6.3(b)
is intended to comply with Regulations Section 1.704-2(i) and shall be
applied and interpreted consistently therewith.
(c) DETERMINATION OF PROFITS INTERESTS. The excess nonrecourse
liabilities of the Partnership within the meaning of Regulations Section
1.752-3(a)(3) shall be allocated among the Partners as determined by the Genera
Partner.
(d) PARTNER NONRECOURSE DEDUCTIONS. Any Partner Nonrecourse
Deductions for any Fiscal Year or other period shall be specially allocated to
the Partner who bears the economic risk of loss with respect to the Partner
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Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable
in accordance with Regulations Section 1.704-2(i) and 1.704-2(k).
(e) 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.
(f) CASH FLOW DISTRIBUTIONS. To the extent permitted by Regulations
Sections 1.704-2(h) and 1.704-2(i)(6), the Partners shall endeavor to treat
distributions of Cash Flow as having been made from the proceeds of a
Nonrecourse Liability or a Partner Nonrecourse Debt only to the extent that such
distributions would not cause or increase an Adjusted Capital Account Deficit
for any Partner.
(g) QUALIFIED INCOME OFFSET. In the event that a Partner receives any
adjustments, allocations or distributions described in Regulations Section
1.704-1(b)(2)(ii) (d)(4), (5) and (6), then items of Partnership income and gain
shall be specially allocated to the Partners in an amount and manner sufficient
to eliminate, to the extent required by such regulations, any Adjusted Capital
Account Deficit created by such adjustments, allocations or distributions as
quickly as possible, PROVIDED, HOWEVER, that an allocation pursuant to this
SECTION 6.3(g) shall be made only if and to the extent that such Partner would
have an Adjusted Capital Account Deficit after all other allocations provided
for in this ARTICLE VI have been tentatively made as if this SECTION 6.3(g) were
not in the Agreement.
(h) CURATIVE ALLOCATIONS. The allocations provided for in SECTION
6.3(a), (b), (d), (e) and (g) above and (j) below (collectively, the "REGULATORY
ALLOCATIONS"), may not be consistent with the manner in which the Partners
intend to divide Profits, Losses and similar items. In such case, to the extent
possible, other items of Partnership income, gain, loss or deduction will be
reallocated among the Partners (in the same Fiscal Year, and to the extent
necessary, subsequent Fiscal Years) in a manner consistent with Regulations
Sections 1.704-1(b) and 1.704-2 so as to prevent the Regulatory Allocations from
distorting the manner in which Profits, Losses and other items are intended to
be allocated among the Partners pursuant to SECTION 6.3. Notwithstanding the
preceding sentence, Regulatory Allocations relating to (x) Nonrecourse
Deductions shall not be taken into account except to the extent that there has
been a decrease in Partnership Minimum Gain and (y) Partner Nonrecourse
Deductions shall not be taken into account except to the extent that there has
been a decrease in Partner Minimum Gain attributable to Partner Nonrecourse
Debt. Any allocations under this SECTION 6.3(h) shall take into account the
effect of future Regulatory Allocations which are likely to offset other
Regulatory Allocations that are or would be the subject of any allocation under
this SECTION 6.3(h), such that the overall allocation of Profits, Losses and
items of Partnership income, gain, loss or deduction are allocated in accordance
with the way in which the Partnership intends to divide Profits, Losses and
similar items.
6.4 ALLOCATIONS IN CASE OF TRANSFERS OR ADMISSIONS. Profits and
Losses allocable to any Interest that has been transferred during a Fiscal Year
shall be allocated among the persons who are the holders of such Interest during
such year in accordance with Code Section 706 using any convention permitted by
law and selected by the Tax Matters Partner. In
12
the event Partners are admitted to the Partnership pursuant to this Agreement on
different dates, the Profits or Losses allocated to the Partners for each Fiscal
Year during which Partners are so admitted shall be allocated among the Partners
in proportion to their respective Percentage Interests during such Fiscal Year
in accordance with Code Section 706 using any convention permitted by law and
selected by the Tax Matters Partner.
6.5 TAX ALLOCATIONS.
(a) Except as provided otherwise in this ARTICLE VI, all items of
Partnership income, gain, loss, deduction and any other allocations not
otherwise provided for shall, for tax purposes, be divided among the Partners in
the same manner as they share the correlative Profits and Losses and other
items, as the case may be, for the Fiscal Year, for Capital Account purposes.
Allocations pursuant to this SECTION 6.5 are solely for purposes of federal,
state and local income taxes and shall not affect, or in any way be taken into
account in computing, any Capital Account balance or share of Profits, Losses,
other items or distributions pursuant to any provision of this Agreement.
(b) SECTION 704(c) COMPLIANCE. For federal income tax purposes,
Partnership items of income, gain, loss, deduction and credit shall be allocated
among the Partners in the manner which takes into account the difference between
the adjusted basis to the Partnership of the interest in the property that each
Partner is deemed to have contributed to the Partnership and the Gross Asset
Value of such interest in such property at the time the property was
contributed, in accordance with, and to the full extent required by, Code
Section 704(c) and Regulations Sections 1.704-1(b)(1)(vi), (d)(3), and 1.704-3,
as the case may be.
In the event any Gross Asset Value is adjusted pursuant to the
definition of Gross Asset Value set forth in ARTICLE I hereof, subsequent
allocations of Profits and Losses with respect to such asset shall take account
of any variation between the adjusted basis of such asset for federal income tax
purposes and its Gross Asset Value in the same manner as under Section 704(c) of
the Code and the Regulations thereunder. Any elections or other decisions
relating to allocations under this SECTION 6.5(b) including the selection of any
allocation method permitted under Regulations Section 1.704-3 shall be made by
the Tax Matters Partner in any manner that reasonably reflects the purpose and
intention of this Agreement.
ARTICLE VII
ACCOUNTING AND TAX MATTERS
7.1 PARTNERSHIP BOOKS. Proper and complete books of account of the
Partnership shall be kept at the Partnership's principal place of business and
shall be open to inspection by any Partner at reasonable times during business
hours. Without limiting the foregoing, all federal, state and local tax returns
of the Partnership shall be open to inspection by any Partner at reasonable
times during business hours.
7.2 FISCAL AND TAX YEARS. The Partnership's Fiscal Year and tax year
shall end on December 31.
13
7.3 ACCOUNTING METHOD. The books of the Partnership (both tax and
financial) shall be kept on an accrual basis.
7.4 TAX MATTERS PARTNER. The General Partner shall be the Tax Matters
Partner.
7.5 TAX ELECTIONS. All elections required or permitted to be made by
the Partnership under any applicable tax law shall be made by the General
Partner in its sole discretion.
7.6 TAX RETURNS. The Tax Matters Partner shall prepare and file, or
cause to be prepared and filed, all state and federal tax returns on a timely
basis. The Tax Matters 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 Partnership items of income, gain, loss, deduction and credit for
federal income tax purpose, within the period of time prescribed by law. Each
Partner must report consistently with such tax returns prepared for the
Partnership pursuant to this Agreement.
7.7 PARTNERSHIP CLASSIFICATION. Each Partner acknowledges that this
Agreement creates a partnership for federal and state income tax purposes, and
hereby agrees not to elect to be excluded from the application of Subchapter K
of Chapter 1 of Subtitle A of the Code or any similar state statute.
ARTICLE VIII
DISTRIBUTIONS
8.1 DETERMINATION OF CASH FLOW. The General Partner shall prepare and
deliver to each Partner a statement of Cash Flow at such times as the General
Partner shall determine, but not less than annually.
8.2 AMOUNTS AND TIME OF DISTRIBUTION. Unless otherwise agreed by each
Partner, and except as otherwise provided in SECTION 15.3, Cash Flow shall be
distributed (or in the case of Capital Loans, shall be repaid) by the General
Partner to the Partners, in such amounts and at such times as may be determined
by the General Partner, as follows:
(a) First, to the Partners, pro rata in accordance with their
respective estimated allocations of taxable income for the period beginning on
the day immediately following the end of the last period for which a Partner Tax
Payment was distributed and ending on the last day of the period for which the
current distribution is made, an amount equal to the Partner Tax Payments
attributable to such period;
(b) Second, so long as there are any Capital Loans outstanding, all
remaining Cash Flow shall be distributed to the Partners which have made such
Capital Loans, pro rata in accordance with the outstanding principal balances of
such Capital Loans, which payment shall
14
be applied against the principal amount of such Capital Loans as prepayments of
such principal in the inverse order of the maturity thereof;
(c) Third, to the Partners which have made contributions of Preferred
Equity, pro rata in accordance with their respective Adjusted Preferred Equity
Balances, an amount equal to the accrued but unpaid Preferred Equity Return;
(d) Fourth, to the Partners which have made contributions of
Preferred Equity, pro rata, in accordance with their respective Adjusted
Preferred Equity Balance, until each Partner has received as a return of capital
an amount equal to its Adjusted Preferred Equity Balance; and
(e) Fifth, and to the Partners, pro rata in accordance with their
respective Percentage Interests.
ARTICLE IX
MANAGEMENT OF THE PARTNERSHIP
9.1 MANAGEMENT; MANAGEMENT AGREEMENT.
(a) Subject to any express limitations contained in this Agreement,
the Partnership shall be managed exclusively by the General Partner and the
General Partner shall be responsible for the management of the Partnership's
business, and shall have full, exclusive and complete power and discretion,
without the need for consent or approval of any other Partner, to make all
decisions and to do all things which it deems necessary or desirable on behalf
of the Partnership, including all the powers permitted to a General Partner
under the Act. The General Partner shall take all necessary steps to cause the
Partnership to prepare and submit such materials as may be required by the IGC.
(b) The Partnership has entered into a management agreement with the
General Partner which provides that the General Partner or its designated
Affiliate shall be the sole and exclusive manager of the Casino and any related
projects operated by the Partnership in Dearborn County, Indiana (the
"MANAGEMENT AGREEMENT").
9.2 LIMITATION ON POWERS. No Partner shall: (a) use the Partnership
name or assets in any way except for the transaction of legitimate Partnership
business or do any act in contravention of this Agreement; or (b) do any act
which would make it impossible to carry on the business of the Partnership.
9.3 NON-PARTICIPATION IN MANAGEMENT BY LIMITED PARTNERS. Except as
specifically provided in this Agreement, no Limited Partner shall participate in
the control or management of the business of the Partnership nor act for and on
behalf of the Partnership in any manner whatsoever.
15
9.4 AUTHORITY OF THE GENERAL PARTNER. The General Partner shall
manage the business and affairs of the Partnership and shall have the exclusive
power and authority to make any and all decisions and to take any and all
actions which the General Partner deems necessary or desirable to conduct the
business of the Partnership. The General Partner shall have all powers,
statutory or otherwise, possessed by or permitted to a general partner under the
laws of the State of Indiana.
ARTICLE X
LIMITATION OF LIABILITY; INDEMNIFICATION
10.1 EXONERATION. The General Partner shall not have any liability to
the Partnership or any Partner for any loss, damage, cost or expense, including,
without limitation, any special, indirect, consequential or punitive damages of
the Partnership or any Partner arising or allegedly arising out of the General
Partner's management of the Partnership or the General Partner's acts or
omissions in connection with its management of the Partnership; provided that
this provision shall not apply if such loss, damage, cost or expense arises out
of an act of fraud, embezzlement, willful misconduct or other serious criminal
activity by the General Partner.
10.2 INDEMNIFICATION. The Partnership shall indemnify, and shall hold
each Partner and each of its officers, employees or Affiliates harmless against,
to the full extent permitted by law, any loss, damage, cost or expense
(including court costs and reasonable attorneys' fees) which such Partner or any
such officer, employee or Affiliate may sustain or incur by reason of any claim,
demand, suit or recovery by any person or Entity (other than such Partner,
officer, employee or an Affiliate of such Partner) arising or allegedly arising
out of the business of the Partnership and, in the case of the General Partner,
including the General Partner's management of the Partnership or the General
Partner's acts or omissions in connection with its management of the Partnership
and actions taken by the General Partner as Tax Matters Partner; provided that
any Partner or such officer, employee or Affiliate of such Partner shall not be
entitled to indemnification hereunder if such loss, damage, cost or expense
arises out of (i) an act of fraud, embezzlement or serious criminal activity by
the party seeking indemnification or (ii) willful misconduct by the party
seeking indemnification.
10.3 LEGAL EXPENSES. Expenses incurred by the General Partner or any
of its Affiliates in defending any action, suit or proceeding of the nature
described in SECTION 10.2 shall be paid by the Partnership in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the General Partner or such Affiliate to repay
such amount if it shall ultimately be determined that such Partner or such
Affiliate is not entitled to be indemnified by the Partnership as authorized in
SECTION 10.2.
16
ARTICLE XI
REIMBURSEMENT OF GENERAL PARTNER
11.1 COMPENSATION AND EXPENSE REIMBURSEMENT OF PARTNERS.
(a) Other than pursuant to the Management Agreement, no payment will
be made by the Partnership for the services of any Partner or any member,
employee, agent or partner of any Partner or an Affiliate thereof.
(b) In the event of the termination of the Management Agreement or if
the Management Agreement ceases to be in effect at anytime, the General Partner
and its Affiliates shall be reimbursed by the Partnership for (i) the reasonable
out-of-pocket expenses incurred by the General Partner or its Affiliate on
behalf of the Partnership in connection with the business and affairs of the
Partnership, including all legal, accounting, travel and other similar expenses
reasonably incurred by the General Partner or its Affiliates in connection with
the operation of the business of the Partnership and (ii) services provided by
the General Partner and its Affiliates to the Partnership in the operation of
its business; provided that (A) any such service shall be reasonably necessary
to the Partnership, and (B) the rate or basis for payment is not greater than
would be charged to the Partnership for similar services performed by an
independent third party of similar quality and expertise. Such services which
may be provided by the General Partner and its Affiliates pursuant to this
SECTION 11.1(b) shall include, but not be limited to, accounting services,
management information services, security services and public relation services.
(c) Any reimbursement or other consideration to be paid by the
Partnership to the General Partner pursuant to the terms of this Agreement shall
not be in lieu of, and the Partnership shall be directly liable for, expenses
incurred by the Partnership, or by the General Partner on behalf of the
Partnership, for services rendered to the Partnership by unaffiliated third
parties.
ARTICLE XII
RESTRICTIONS ON TRANSFERS OF INTERESTS
No Partner may Transfer all or any portion of its rights or Interest
in the Partnership or withdraw or retire from the Partnership without the
consent of the other Partner and any such attempted Transfer, withdrawal or
retirement without the consent of the other Partner shall be null and void.
ARTICLE XIII
NO WITHDRAWAL OR PARTITION BY A PARTNER
Each Partner agrees (a) to be bound by the terms, conditions and
provisions of this Agreement; (b) not to withdraw as a Partner until the end of
the term of the Partnership (except in connection with a Transfer permitted
under this Agreement); and (c) not to take any
17
action or fail to take any action that would cause dissolution or termination of
the Partnership except as permitted pursuant to SECTION 14.1.
ARTICLE XIV
DISSOLUTION
14.1 DISSOLUTION NOT IN CONTRAVENTION OF THIS AGREEMENT. Upon the
occurrence of any of the following events, the Partnership shall be dissolved
and the business of the Partnership shall be wound up in accordance with the
provisions of ARTICLE XV:
(a) Unanimous decision of all Partners to dissolve the Partnership.
(b) December 31, 2024 (except as such date may be extended under this
Agreement).
(c) The Bankruptcy, Insolvency or the Dissolution or Termination of
the General Partner.
(d) The happening of any event that makes it unlawful, impossible or
impractical to carry on the business of the Partnership.
The Partners hereby agree that, notwithstanding any provision of the
Act, the Partnership shall not dissolve prior to the occurrence of a Liquidating
Event. Furthermore, if an event specified in SECTION 14.1(c) hereof occurs, the
remaining Partners may, within ninety (90) days of the date such event occurs,
unanimously vote to elect a successor General Partner and continue the
Partnership business, in which case the Partnership shall not dissolve and the
occurrence of the event under SECTION 14.1(c) shall not be deemed a Liquidating
Event. The Partners further agree that in the event the Partnership is dissolved
prior to a Liquidating Event, the Partnership may be continued upon the
unanimous vote of the existing Partners at such time to so continue the
Partnership, provided such vote occurs within thirty (30) days of the event
triggering such dissolution.
ARTICLE XV
LIQUIDATION AND DISTRIBUTION
15.1 LIQUIDATING PARTNER. Upon dissolution of the Partnership pursuant
to a Liquidating Event, the General Partner shall be, or if there is no General
Partner, then such person as shall be designated by the Limited Partner shall
be, the liquidating Partner (the "LIQUIDATING PARTNER").
15.2 WINDING UP. The Liquidating Partner shall cause the Partnership
to cease to engage in further business, except to the extent necessary to
perform existing contracts, and shall wind up the affairs of the Partnership and
liquidate its assets. A reasonable time shall be allowed for the orderly
liquidation of the assets of the Partnership and the discharge of liabilities
18
to creditors so as to enable the Partners to minimize the losses normally
attendant on a liquidation. During the course of liquidation, the provisions of
this Agreement shall continue to bind the Partners and apply to the activities
of the Partnership, except as expressly provided herein to the contrary.
15.3 DISTRIBUTION FOLLOWING LIQUIDATION. Upon the completion of
winding up and liquidation of the Partnership pursuant to SECTION 15.2 above,
the Liquidating Partner shall distribute the proceeds of the Partnership in the
following order of priority:
(a) To the payment of all debts and liabilities of the Partnership
other than:
(i) loans or advances that may have been made by any Partner to
the Partnership; and
(ii) debts secured by Liens on property sold pursuant to the
liquidation subject thereto; provided that neither the Partnership nor any
of the Partners is personally liable on, or is released from liability on,
such debts;
(b) To the payment of all expenses of liquidation;
(c) To the setting up of any reserves which the Liquidating Partner
may deem necessary for any contingent or unforeseen liabilities or obligations
of the Partnership or of the Partners arising out of or in connection with the
Partnership. Said reserves may be paid over by the Liquidating Partner to a bank
or trust company acceptable to the Liquidating Partner to be held by it for the
purpose of disbursing such reserves in payment of any of the aforementioned
liabilities or obligations and, at the expiration of such period as the
Liquidating Partner shall deem advisable, distributing the balance, if any,
thereafter remaining, in the manner hereinafter provided;
(d) To the repayment of any loans that may have been made by the
Partners to the Partnership, in accordance with the order of priority
established in any applicable Debt Documents or, if no priority is established,
then pro rata, in accordance with the amounts outstanding thereunder; and
(e) The balance, if any, to the Partners, in accordance with their
respective positive Capital Accounts, after giving effect to Capital Account
adjustments for the taxable year in which the Liquidating Event occurs (other
than those from the liquidating distribution made pursuant to SECTION 15.3(e),
but including all Capital Contributions made to restore a deficit Capital
Account.)
19
ARTICLE XVI
OTHER BUSINESS; NO PARTNERSHIP OPPORTUNITY
16.1 OTHER BUSINESS; PARTNERSHIP OPPORTUNITY.
(a) No business opportunities other than those actually exploited by
the Partnership pursuant to SECTION 2.2 shall be deemed the property of the
Partnership and any Partner or its Affiliates may engage in or possess an
interest in any other business venture, independently or with others, of any
nature or description; and neither the other Partners nor the Partnership shall
have any rights by virtue of this Agreement in and to such other business
ventures or to the income or profits derived therefrom.
(b) No Partner or any Affiliate of a Partner shall have any duty to
communicate or offer to the Partnership or to any Partner or Affiliate of a
Partner any Partnership Opportunity, and no Partner or Affiliate of a Partner
shall be liable to the Partnership for breach of any fiduciary duty or duty of
loyalty to the Partnership or its Partners by reason of the fact that it pursues
or acquires a Partnership Opportunity for itself or directs a Partnership
Opportunity to another person or entity.
16.2 AFFILIATE TRANSACTIONS. The parties hereto acknowledge and agree
that in the course of the General Partner performing its services as General
Partner hereunder, the General Partner and its Affiliates may from time to time
engage in transactions with the Partnership. The General Partner agrees that it
shall act in good faith with respect to such transactions and the terms of such
transactions shall be fair and equitable. In determining whether a particular
transaction with the Partnership is in accordance with the terms of this
paragraph, all aspects of such transaction and all facts and circumstances
surrounding such transaction taken together (and if such transaction is one of a
series of related transactions, including transactions pursuant to any
pre-established contract or arrangement, then all of such related transactions,
and the terms of such contract or arrangement) shall be taken into account.
ARTICLE XVII
MISCELLANEOUS
17.1 GOVERNING LAW. This Agreement shall be construed and interpreted,
and the rights of the parties shall be determined, in accordance with the laws
of the State of Indiana. The Partners agree and acknowledge that all terms and
provisions hereof are subject to applicable law, including the statutes of the
State of Indiana with respect to gaming and any rules and regulations
promulgated by the IGC.
17.2 TITLE TO ASSETS; PARTITION. No real or other property of the
Partnership shall be deemed owned by any Partner individually, but shall be
owned by and title shall be vested solely in the Partnership. The Interest of
each Partner shall constitute personal property. Each Partner hereby irrevocably
waives, for the term of the Partnership, any and all right it may have to
maintain an action for partition with respect to its undivided interest in the
property or assets
20
(real or personal) of the Partnership or to compel the sale thereof under any
statute, common law or other means not provided for in this Agreement.
17.3 HEADINGS. The table of contents and the headings of the several
sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
17.4 ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS. This Agreement,
together with all exhibits hereto and thereto, constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties. There are no other
agreements among the parties in connection with the subject matter hereof except
as specifically set forth herein or contemplated hereby. Any supplement,
modification or waiver of this Agreement shall be in writing and agreed to by
all Partners. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provision hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver unless
otherwise expressly provided.
17.5 REMEDIES. The parties hereto acknowledge that the rights granted
hereunder are unique and that irreparable damage would result if this Agreement
is not specifically enforced and that, therefore, the rights and obligations of
the parties under this Agreement may be enforced by a decree of specific
enforcement issued by a court of competent jurisdiction and appropriate
equitable relief may be applied for and granted in connection therewith. Such
remedies shall, however, not be exclusive and shall be in addition to any other
remedies which any party may have under this Agreement or otherwise.
17.6 FURTHER ASSURANCES. Each of the parties hereto shall, at any time
and from time to time after becoming a Partner, upon request of the other
parties, take such further action and execute, acknowledge and deliver all such
instruments of further assurance as may be necessary to carry out the provisions
of this Agreement.
17.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17.8 NOTICES.
(a) All notices required or permitted to be given hereunder shall be
given by registered mail, in person (in writing), by telecopy or by telex and
addressed as follows:
To Indiana Gaming or the Partnership:
Indiana Gaming Company
c/o Argosy Gaming Company
219 Piasa Street
21
Alton, Illinois 62002
Attention: General Counsel
With copy to:
Indiana Gaming Company
c/o Argosy Gaming Company
219 Piasa Street
Alton, Illinois 62002
Attention: Chief Financial Officer
To the Gaming II:
Indiana Gaming II, L.P.
c/o Argosy Gaming Company
219 Piasa Street
Alton, Illinois 62002
Attention: General Counsel
With copy to:
Indiana Gaming II, L.P
c/o Argosy Gaming Company
219 Piasa Street
Alton, Illinois 62002
Attention: Chief Financial Officer
(b) Either Partner may from time to time change its address for the
purpose of notices to that Partner by a similar notice specifying a new address,
but no such change shall be deemed to have been given until it is actually
received by the Partner sought to be charged with its contents.
(c) All notices and other communications required or permitted under
this Agreement which are addressed as provided in this Section if delivered
personally or by air courier, shall be effective upon delivery; and, if
delivered by mail, shall be effective upon deposit in the United States mail,
postage prepaid.
17.9 NO THIRD-PARTY BENEFICIARY. This Agreement is being entered into
solely for the benefit of the parties hereto, and the parties do not intend that
any other person shall be a third-party beneficiary of the representations,
warranties, agreements or covenants made by any Partner contained in this
Agreement.
17.10 SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument referred to
herein shall, for any reason, be held invalid or unenforceable in any respect,
such invalidity or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
22
17.11 SUCCESSORS AND ASSIGNS. Subject to the restrictions on transfer
and assignment herein contained, the terms and provisions of this Agreement
shall be binding upon, and inure to the benefit of, the successors, assigns,
personal representatives, estates, heirs and legatees of the respective
Partners.
[Signature page to follow]
23
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
INDIANA GAMING COMPANY
By: /s/ JA Gulbrandsen
---------------------------------
Name: James A. Gulbrandsen
---------------------------------
Title: Vice President
---------------------------------
INDIANA GAMING II, L.P.
By: Indiana Gaming Holding Company, its
general partner
By: /s/ JA Gulbrandsen
-------------------------------
Name: James A. Gulbrandsen
-------------------------------
Title: Vice President
-------------------------------
EXHIBIT A
ADJUSTED PREFERRED EQUITY BALANCE, CAPITAL LOAN BALANCE
AND PARTNERSHIP INTERESTS
AS OF MARCH 31, 2001
ADJUSTED
PREFERRED CAPITAL LOAN PARTNERSHIP
EQUITY BALANCE BALANCE INTEREST
-------------- ------- --------
GENERAL PARTNER
Indiana Gaming Company $10,337,748 $9,545,432 57.5%
LIMITED PARTNERS
Indiana Gaming II, L.P. $7,640,931 $6,206,958 42.5%
---------- ---------- -----
TOTAL $17,978,679 $15,752,390 100.0%
=========== =========== ======
A-1