EXHIBIT 3.16
[Restated electronically for SEC filing purposes only]
RESTATED PARTNERSHIP AGREEMENT
OF
OLH, G.P.
THIS PARTNERSHIP AGREEMENT is made and entered into effective the 26th
day of December, 1994, by and among OLH Holdings, LLC, a Delaware limited
liability company, and Gaylord Entertainment Company, a Delaware corporation.
FOR AND IN CONSIDERATION of the mutual covenants hereinafter set
forth, and for other good and valuable consideration, the Partners do hereby
agree as follows:
1. General.
(a) Governed by Uniform Act. The Partnership shall be governed
under the provisions of the Tennessee Uniform Partnership
Act, and this Agreement sets forth and determines the
relative rights, duties and interests of the Partners in and
to the Partnership.
(b) Purposes. The purpose and business of the Partnership shall
be the conduct of any business or activity that may be
conducted by a limited partnership organized pursuant to the
Act. Any or all of the foregoing activities may be conducted
directly by the Partnership or indirectly through another
partnership, joint venture or other arrangement.
2. Definitions. As used in this Partnership Agreement:
(a) Act. The term "Act" shall mean the Uniform Partnership Act as
adopted in the State of Tennessee, as the same may be amended
from time to time.
(b) Agreement. The term "Agreement" shall mean this Partnership
Agreement, as the same may be amended from time to time.
(c) Capital Account. The term "Capital Account" shall mean the
financial account to be established and maintained by the
Partnership for each Partner as computed from time to time in
accordance with paragraph 6.
(d) Code. The term "Code" shall mean the United States Internal
Revenue Code of 1986, as the same may be amended from time to
time.
(e) Fiscal Year. The term "Fiscal Year" shall mean the calendar
year.
(f) General Partner. The term "General Partner" shall mean each
of OLH Holdings, LLC and Gaylord Entertainment Company.
(g) [Intentionally Deleted]
(h) Minimum Gain. The term "Minimum Gain" shall mean the amount
determined by (i) computing for each Nonrecourse Liability of
the Partnership any gain the Partnership would realize if it
disposed of the property subject to that liability for no
consideration other than full satisfaction of the liability
and (ii) aggregating the separately computed gains. If,
pursuant to Regulations section 1.704-1(b)(2)(iv)(d) or
1.704-1(b)(2)(iv)(f), Partnership property is properly
reflected on the books of the Partnership at a value
different from the adjusted tax basis of such property, the
calculation of Minimum Gain pursuant to the preceding
sentence shall be made by reference to such book value.
(i) Nonrecourse Deductions. The term "Nonrecourse Deductions"
shall mean losses, deductions and items described in Section
705(a)(2)(B) of the Code attributable to Nonrecourse
Liabilities of the Partnership as described in Regulations
section 1.704-2(b)(1).
(j) Nonrecourse Liability. The term "Nonrecourse Liability" shall
mean a debt or liability of the Partnership to the extent
that no Partner or related person bears the economic risk of
loss for that liability within the meaning of Regulations
section 1.752-2.
(k) Partner Nonrecourse Debt. The term "Partner Nonrecourse Debt"
shall mean a debt or liability of the Partnership which would
be a Nonrecourse Liability except that a Partner bears the
economic risk of loss because, for example, the Partner is
the creditor or guarantor as described in Regulations section
1.704-2(b)(4).
(l) Partner Nonrecourse Debt Minimum Gain. The term "Partner
Nonrecourse Debt Minimum Gain" shall have the meaning
ascribed to such term in Regulations section 1.704-2(i)(2).
(m) Partner Nonrecourse Deductions. The term "Partner Nonrecourse
Deductions" shall mean any item of partnership loss,
deduction, or expenditure under section 705(a)(2)(B) of the
Code that is attributable to a Partner Nonrecourse Debt, as
determined pursuant to Regulations section 1.704-2(i)(2).
(n) Partners. The term "Partners" shall mean and include each of
the General Partners.
(o) Partnership. The term "Partnership" shall mean this general
partnership, OLH, G.P.
(p) Percentage Interest. The term "Percentage Interest", with
respect to any Partner, shall mean the interest of such
Partner in the profits, losses, distributions, capital, and
assets of the Partnership as provided in Exhibit A to this
Agreement.
(q) Regulations. The term "Regulations" shall mean regulations,
temporary regulations and proposed regulations promulgated
under the Code from time to time.
3. Names and Addresses.
(a) Name of Partnership. The name of the Partnership shall be
OLH, G.P., and the business and activities of the Partnership
shall be conducted under that name.
(b) Principal Place of Business. The principal place of business
of the Partnership shall be at One Gaylord Drive, Nashville,
Tennessee 37214. The Partnership may maintain such other
offices and places of business as the General Partners may
deem advisable for the benefit of the Partnership.
(c) Names and Addresses of Partners. The names and addresses of
the Partners are set forth in Exhibit A hereto, which Exhibit
A is hereby incorporated herein by reference.
(d) Change of Address. Any Partner may change his or her address
by written notice to the Partnership given as provided
herein.
4. Powers of the Partnership. The Partnership is authorized:
(a) Acquire Assets. To construct, purchase, receive or otherwise
acquire any real or personal property;
(b) Manage, Operate and Convey Assets. To operate, maintain,
improve, sell, option, convey, assign, mortgage, lease or
otherwise manage or transfer any assets owned by the
Partnership;
(c) Borrow Funds. To borrow money and issue evidences of
indebtedness in furtherance of the Partnership business,
whether secured or unsecured;
(d) Refinancings. To prepay, in whole or in part, refinance,
recast, increase, modify and extend any Partnership
indebtedness according to the terms thereof;
(e) Enter into Contracts. To execute, deliver, and perform such
agreements, documents, and instruments as may be advisable in
connection with the conduct of the Partnership business; and
(f) Broad Power to Act. To do any and all other acts of any kind
whatsoever in connection with the accomplishment of the
purposes of the Partnership.
5. Term. Unless dissolved sooner in accordance with the provisions of
this Agreement, the Partnership shall continue until its dissolution
on December 31, 2035.
6. Capital Accounts.
(a) In General. A Capital Account shall be established on the
books of the Partnership for each Partner. Each such Capital
Account shall be credited with the respective Partner's
initial capital contribution as shown on Exhibit A, with all
subsequent capital contributions as and when made, and with
the respective Partner's share, determined as provided
herein, of Partnership net profits. Each Partner's capital
account shall be debited with the respective Partner's share,
determined as provided herein, of Partnership net losses and
with the amount of all distributions made by the Partnership
to such Partner. The capital accounts shall be maintained in
accordance with the rules of section 1.704-1(b)(2)(iv) of the
Regulations, and the items of income, profit, gain,
expenditures, deductions and losses which increase or
decrease such Capital Accounts shall be those items which,
pursuant to such provision, after the balance of Capital
Accounts.
(b) Additional Capital Contributions. No additional capital
contributions shall be required of any Partner; provided,
however, that the General Partner shall contribute from time
to time sufficient cash to maintain a Capital Account balance
equal to at least one and one-hundredths percent (1.01%) of
the Capital Account balance of the Limited Partner.
(c) Transfers of Partnership Interests. Upon the transfer by any
Partner of any part or all of its Partnership Interest, the
proportionate amount of its respective Capital Account shall
be transferred to the transferee unless otherwise agreed by
the Partners as set forth on Exhibit A to this Partnership
Agreement.
7. Allocation of Profits and Losses.
(a) Partners' Interest in Profits and Losses. Except as provided
in subparagraphs 7(b), 7(c), and 7(d) hereof, all Partnership
net profits and net losses, and each item of income and
expense related thereto, from whatever source derived, shall
be allocated for financial accounting and
federal income tax purposes among the Partners in proportion
to the Percentage Interest of each Partner.
(b) Allocations to Reflect Contributed Property. If a Partner
contributes property to the Partnership which has a
difference between its tax basis and its fair market value on
the date of its contribution, then all items of income, gain,
loss and deduction with respect to such contributed property
shall be shared between the Partners, pursuant to Section
704(c) of the Code, so as to take account of the variation
between the basis of such property and its fair market value
at the time of contribution.
(c) Limitations and Qualifications Regarding Allocations.
Notwithstanding the provisions of subparagraph 7(a) hereof,
net income, net gain, and net loss of the Partnership (or
items of income, gain, loss, deduction or credit, as the case
may be) shall be allocated in accordance with the following
provisions of this subparagraph 7(c) to the extent such
provisions shall be applicable.
(1) Nonrecourse Deductions of the Partnership for any
Fiscal Year shall be specially allocated to the
Partners in accordance with the Percentage Interests
of the respective Partners. Partner Nonrecourse
Deductions of the Partnership for any Fiscal Year
shall be specially allocated to the Partner who
bears the economic risk of loss for the Partner
Nonrecourse Debt in question. The provisions of this
subparagraph 7(c)(1) are intended to satisfy the
requirements of Regulations section 1.704-2(e)(2)
and 1.70432(i)(1) and shall be interpreted in
accordance therewith for all purposes under this
Agreement
(2) If there is a net decrease in the Minimum Gain of
the Partnership during any Fiscal Year, each Partner
shall be specially allocated items of Partnership
income and gain for such year equal to that
Partner's share of the net decrease in Minimum Gain,
within the meaning of Regulations section
1.704-2(g)(2). The provisions of this subparagraph
7(c)(2) are intended to comply with the minimum gain
chargeback requirement of Regulations section
1.704-2(f) and shall be interpreted in accordance
therewith for all purposes under this Agreement.
(3) If there is a net decrease in Partner Nonrecourse
Debt Minimum Gain during any Fiscal Year, each
Partner that has a share of such Partner Nonrecourse
Debt Minimum Gain as of the beginning of such Fiscal
Year, determined in accordance with Regulations
section 1.704-2(i)(5), shall be specially allocated
items of Partnership income and gain for such Fiscal
Year (and, if necessary, for succeeding Fiscal
Years) equal to such Partner's
share of the net decrease in Partner Nonrecourse
Debt Minimum Gain. The provisions of this
subparagraph 3(c)(3) are intended to comply with the
Partner Nonrecourse Debt Minimum Gain chargeback
requirement of Regulations section 1.704-2(i)(4) and
shall be interpreted in accordance therewith for all
purposes under this Agreement.
(4) If the allocation of net loss (or items thereof) to
any Partner as provided in subparagraph 7(a) hereof
(other than Nonrecourse Deductions or Partner
Nonrecourse Deductions) would either cause such
Partner to have a deficit balance in such Partner's
Capital Account or increase the deficit balance of
said Partner's Capital Account, there shall be
allocated to such Partner only that amount of net
loss (or items thereof) as will not cause such
Partner to have a deficit balance in such Partner's
Capital Account or increase the deficit balance of
said Partner's Capital Account. The net loss (or
items thereof) that would, absent the application of
the preceding sentence, otherwise be allocated to a
Partner shall be allocated (i) first, to Partners
whose Capital Accounts have positive credit
balances, in proportion to such positive credit
balances; and (ii) second, to the Partners in
accordance with their "interests in the
Partnership", as determined pursuant to section
704(b) of the Code and the Regulations promulgated
thereunder.
(5) If any Partner unexpectedly receives any adjustment,
allocation or distribution described in clauses (4),
(5) and (6) of Regulations section
1.704-1(b)(2)(ii)(d) which creates or increases a
deficit balance in such Partner's Capital Account,
such Partner shall be allocated items of Partnership
income and gain (consisting of a pro rata portion of
each item of Partnership income, including gross
income, and gain for such Fiscal Year) in an amount
and manner sufficient to eliminate, as quickly as
possible, to the extent required by the relevant
Regulations, the deficit balance of such Partner's
Capital Account created or increased as a result of
the unexpected allocation. The provisions of this
subparagraph 7(c)(5) are intended to comply with the
"qualified income offset" requirement of Regulations
section 1.704-1(b)(2)(ii)(d)(3) and shall be
interpreted in accordance therewith for all purposes
under this Agreement.
(6) At all times throughout the term of this Agreement,
the General Partner shall be allocated at least one
percent (1%) of each material item of Partnership
income, gain, loss, deduction and credit.
(d) Transfers of Partnership Interests. In the event of a
transfer by a Partner of all or part of such Partner's
Partnership interest, or in the event of any
increase in the interest of any Partner, whether arising out
of the entry of a new Partner, the liquidation (partial or
whole) of any Partner's interest, or otherwise, the share of
the profits and losses of the respective Partners, and each
item of income and expense related thereto, shall be
determined by the "pro-rata method" described in Regulations
section 1.706-1(c)(2)(ii), and all such items for the entire
Fiscal Year shall be allocated between the disposing and
transferee Partners according to the portion of the Fiscal
Year that the interest in the Partnership was held by each.
8. Distributions.
(a) Non-liquidating Distributions. The General Partner may, but
shall not be required to, distribute to the Partners any cash
available for distribution from time to time (after the
establishment of such operating and contingency reserves as
the General Partner deems advisable), such distributions
(except as provided in subparagraph 8(b)) to be divided
between the Partners according to their Percentage Interests.
(b) Liquidation Distributions. When the Partnership is
terminated, pursuant to paragraph 17 hereof or otherwise, the
final distribution to Partners shall be according to the
positive balance of their Capital Accounts, after allocation
of income, gain, expense and loss in the Fiscal Year of
liquidation (including the allocation for the deemed sale of
assets distributed in kind required by subparagraph 17(d)).
If the General Partner has a negative Capital Account balance
immediately before the final distribution to Partners, the
General Partner shall contribute to the Partnership an amount
of cash necessary to increase such negative Capital Account
balance to zero, such contribution being for the benefit of,
and to be distributed to, the Limited Partner.
9. [Intentionally Deleted]
10. Management of Partnership Business.
(a) Partnership Managed by General Partner. The management of the
Partnership's business shall be vested solely in the General
Partner(s) who shall devote such time and attention to the
business of the Partnership as may be appropriate. The
General Partner shall manage the affairs of the Partnership
and shall use its best efforts to carry out its
responsibilities as set forth herein. The General Partner
shall have full power to carry out the purpose and objectives
of the Partnership through the exercise of the authority
conferred upon the Partnership under paragraph 4 hereof, and
the General Partner shall possess and may enjoy and exercise
all of the rights and powers of general partners as more
particularly provided by the Act, except to the extent any of
such rights may be limited or restricted by the express
provisions of this Agreement.
(b) Reimbursement for Expenses. The General Partner shall be
entitled to be reimbursed for all reasonable costs and
expenses incurred by the General Partner in carrying out
duties hereunder or in carrying on the business and
activities of the Partnership.
(c) Tax Matters Partner. The General Partner shall be the "tax
matters partner" (as defined in Section 6231(a)(7) of the
Code) for all administrative and judicial proceedings for the
assessment and collection of tax deficiencies and for the
refund of tax overpayments arising out of a Partner's
distributive share of Partnership income, losses and credits.
11. Liability for Partnership Obligations. Each Partner shall be
personally liable for or upon any of the debts or obligations of the
Partnership or any of the losses of the Partnership; provided,
however, that the Partners acknowledge and agree that they shall be
specifically entitled to provide for indemnification between the
Partners with regard to specific liabilities of the Partnership.
12. Restrictions on Transfers of Partnership Interests. No Partner may
sell, assign, give, transfer, pledge, or encumber, directly or
indirectly, any of its interest in the Partnership, whether now owned
or hereafter acquired, without the prior consent of the General
Partner.
13. Valuation of Partnership Assets. Whenever it is necessary to determine
the fair market value of any non-cash assets owned by the Partnership
for which market quotations are not available, then if the interested
parties are unable to agree upon the fair market values of such
assets, such values shall be as determined by a competent appraiser
chosen by the General Partner, and such appraised value shall be
deemed to be the fair market value of the assets in question. All
costs incurred shall be borne by the Partnership.
14. Books, Records, Accounts, and Reports.
(a) Maintenance of Accurate Records. At all times during the
existence of the Partnership, the General Partner shall keep,
or cause to be kept, full and true books of account, in which
all transactions of the Partnership shall be entered fully
and accurately. If and as deemed necessary by the General
Partner, adequate reserves may be established for accounting,
legal, management, and other similar fees, ad valorem taxes,
insurance, and any other item for which reserves should be
established in the discretion of the General Partner. Such
books of account, together with a copy of this Agreement and
all amendments thereto, shall at all times be maintained at
the principal office of the Partnership and shall be open to
reasonable inspection and examination by the Partners or
their duly authorized representatives.
(b) Tax Returns. The General Partner shall have income tax
returns prepared for the Partnership, and a report indicating
the respective Partners' shares of the net income or losses,
capital gains or losses, and other items required under the
Code to be separately allocated to each Partner, shall be
distributed to the Partners within a reasonable time after
the close of the taxable year or the period of the
Partnership for which such return was prepared.
(c) Partnership Accounts. All funds of the Partnership shall be
deposited in a separate bank account or accounts and only the
General Partner, and such persons as may be designated by the
General Partner, may sign checks and draw upon such account
or accounts.
15. [Intentionally Left Blank]
16. Dissolution. The Partnership shall be dissolved upon the earlier of:
(a) Expiration of Term. The expiration of its term on December
31, 2035; or
(b) Election to Terminate. The election to terminate the
Partnership made in writing by all Partners.
17. Liquidation. Following the dissolution of the Partnership for any
reason, the General Partner, or the person required by law to wind up
its affairs, shall liquidate the Partnership and shall apply the
proceeds of such liquidation and distribute the remaining assets of
the Partnership in the following order:
(a) Payment of Creditors other than Partners. To the repayment of
creditors of the Partnership other than Partners.
(b) Payment of Partner-Creditors. To the repayment of Partners to
the extent of loans made to the Partnership.
(c) Reserves. To the setting up of any reserves deemed reasonably
necessary by the person liquidating the Partnership for any
contingent or unforeseen liabilities or obligations of the
Partnership arising out of or in connection with the conduct
of the business and affairs of the Partnership.
(d) Remainder to Partners. The remainder to the Partners in
accordance with their respective Capital Account balances as
provided in paragraph 8(b) hereof. If any assets of the
Partnership are distributed in kind to the Partners, those
assets shall be treated as if sold for their fair market
value (determined in accordance with paragraph 13 hereof) and
allocations of deemed profit or loss thereon shall be made to
the Capital Accounts in accordance with paragraph 7 hereof
prior to the final distribution. Each Partner shall receive
an undivided interest in the assets or assets of the
Partnership so distributed in kind in proportion to the
balance of such Partner's Capital Account after deducting the
portion of the final distribution made in cash to all
Partners.
(e) Period to Complete Liquidation. All Partnership assets shall
be distributed by the later of (i) the last day of the tax
year of the liquidation as defined in Regulations section
1.704(b) or (ii) 90 days after the liquidation.
18. Amendments to Partnership Agreement.
(a) Unanimous Vote of Partners. This Agreement may be amended by
written action signed by all Partners.
(b) Certain Amendments by General Partner. Notwithstanding the
provisions of subparagraph 18(a) hereof, amendments to
reflect any one or more of the following events may be made
by the General Partner in order to carry out the other
provisions of this Agreement and to comply with law, and no
such amendments shall require the vote, approval, or written
consent of the Limited Partner:
(1) Change of Partnership's Name. A change in the name
of the Partnership;
(2) Change of Partnership's Location. A change in
location of the principal place of business of the
Partnership;
(3) Change of Partner's Name. A change in the name of a
Partner; and
(4) Change in Partner's Residence. A change in place of
residence of a Partner.
19. Miscellaneous.
(a) Notices. The address of each Partner for all purposes shall
be the address set forth in the attached Exhibit A to this
Agreement or such other address of which the General Partners
have received written notice. Any notice, demand, or request
required or permitted to be given or made hereunder shall be
in writing and shall be deemed given or made when delivered
or when deposited in the U.S. Mail, postage prepaid,
certified or registered, return receipt requested, to such
Partner at such address.
(b) Paragraph Titles for Convenience Only. All titles and
captions in this Agreement are for convenience only and shall
not be deemed or construed to define, limit, extend, or
describe the scope of interest of this Agreement or any part
hereof.
(c) Tennessee Law Controls. The construction and validity of this
Agreement shall be determined in all respects in accordance
with and shall be governed by the laws of the State of
Tennessee.
(d) Binding Agreement. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their heirs,
executors, administrators, successors, legal representatives,
and assigns.
(e) Severability. In the event that any provision of this
Agreement shall be held to be invalid, the same shall not
affect the validity of the remainder or any other provision
of this Agreement in any respect whatsoever.
(f) Further Assurances. Each party hereby agrees to take any and
all steps, and execute, acknowledge and deliver any and all
further documents, that the other may reasonably require to
effectuate the intent and purposes of this Partnership
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the date first appearing above.
OLH HOLDINGS, LLC,
as General Partner
By: /s/ Carter R. Todd
-----------------------------------
Title: Secretary
GAYLORD ENTERTAINMENT COMPANY,
as General Partner
By: /s/ Carter R. Todd
-----------------------------------
Title: Secretary
EXHIBIT A
Percentage
Required Interest in
Contribution Profits, Losses
General Partner to Capital and Capital
- --------------- ------------ ---------------
OLH Holdings, LLC
One Gaylord Drive $ 1.00 1%
Nashville, TN 37214
Gaylord Entertainment Company
One Gaylord Drive $99.00 99%
Nashville, TN 37214