Exhibit 3.27
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THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
COLONIAL DOWNS, L.P.
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TABLE OF CONTENTS
Page
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1. ORGANIZATION.......................................................... 1
1.1 Formation......................................................... 1
1.2 Name and Place of Business........................................ 1
1.3 Purpose........................................................... 2
1.4 Term.............................................................. 2
2. CAPITAL............................................................... 2
2.1 Capital and Capital Accounts......................................... 2
2.2 No Obligation........................................................ 2
3. CASH DISTRIBUTIONS.................................................... 2
3.1 Operations........................................................ 2
3.2 Capital Transactions.............................................. 2
3.3 Definitions....................................................... 2
4. ALLOCATION OF PROFIT AND LOSS......................................... 3
4.1 Generally............................................................ 3
4.2 Special Allocations.................................................. 3
4.3 Taxable Income, Gain, Loss, and Deductions........................... 4
5. FINANCIAL MATTERS..................................................... 4
5.1 Banking.............................................................. 4
5.2 Books and Reports.................................................... 4
6. MANAGEMENT............................................................ 4
6.1 General Partner................................................... 4
6.2 Duties and Authority.............................................. 4
6.3 Partners.......................................................... 5
6.4 Action by the Partnership......................................... 5
7. TRANSFER OF PARTNERSHIP INTEREST...................................... 5
8. DISSOLUTION AND TERMINATION........................................... 5
8.1 Generally......................................................... 5
8.2 Winding Up........................................................ 6
8.3 No Deficit Restoration Obligation................................. 6
9. GENERAL PROVISIONS.................................................... 6
9.1 Governing Law..................................................... 6
9.2 Binding Effect.................................................... 6
9.3 Entire Agreement.................................................. 7
THIRD AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
COLONIAL DOWNS, L.P.
THIS THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP
("Agreement") is made as of March 12, 1997 between STANSLEY RACING CORP., a
Virgina corporation, as a general partner (the "General Partner") and COLONIAL
DOWNS HOLDINGS, INC. a Virginia corporation, as a limited partner (the "Limited
Partner" and, together with the General Partner, the "Partners");
W I T N E S S E T H:
WHEREAS, Colonial Downs, L.P. a Virginia limited Partnership (the
"Partnership"), is subject to a Second Amended and Restated Agreement of Limited
partnership dated July 14, 1996, as amended (the "Prior Agreement");
WHEREAS, Stansley Racing Corp. has been admitted to the Partnership as a
general partner, and Colonial Downs Holdings, Inc. has acquired all of the
interest in the Partnership formerly owned by Stansley Management Corp. and CD
Entertainment Ltd. and has been admitted to the Partnership with respect to such
interests as a substituted limited partner;
WHEREAS, the parties wish to amend and restate the Prior Agreement;
NOW, THEREFORE, the parties agree as follows:
1. ORGANIZATION.
1.1 Formation. The Partnership has been formed and shall be operated as a
Virginia limited partnership subject to the terms of this Agreement. This
Agreement replaces the prior Agreement in its entirety.
1.2 Name and Place of Business. The Partnership's name is Colonial Downs,
L.P. The Partnership's principal business office shall be located at 3610
Courthouse Road, P.O. Box 456, Providence Forge, Virginia 23140 or such other
place as the General Partner may determine.
1.3 Purpose. The Partnership's purpose is to own and operate a horse track
and related facilities in Virginia.
1.4 Term. The Partnership shall continue until December 31, 2075 unless
sooner terminated as provided below.
2. CAPITAL.
2.1 Capital and Capital Accounts. The Partnership shall maintain a capital
account for each Partner in accordance with the requirements of the Internal
Revenue Code of 1986, as amended (the "Code"). Each Partner's capital account as
of the date of this Agreement shall equal the amount set forth as such on
Schedule A which is attached hereto and incorporated herein by reference.
2.2 No Obligation. No Limited Partner shall be personally liable for
Partnership obligations. No Partner shall be obligated to make capital
contributions to the Partnership or to lend funds to the Partnership except to
the extent that such Partner agrees otherwise in writing. The General Partner's
liability for the Partnership's debts and other obligations shall be determined
in accordance with the law of the Commonwealth of Virginia.
3. CASH DISTRIBUTIONS.
3.1 Operations. Net cash from operations shall be distributed between the
Partners in proportion to their Percentage Interests.
3.2 Capital Transactions. Net cash from capital transactions shall be
distributed to the Partners, in proportion to their respective Unrecovered
Equities, until each Partner has received cumulative distributions of net cash
from capital transactions in such year and all prior years equal to the amount
of its Unrecovered Equity; and the balance of cash from capital transactions
shall be distributed to the Partners in proportion to their Percentage
Interests.
3.3 Definitions. For purposes of this Agreement, the Percentage Interest of
the Limited Partner means ninety-nine percent(99%) and the Percentage Interest
of the General Partner means one percent. A capital transaction means a sale,
exchange
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or other disposition of real property or a condemnation, damage or destruction
of property or the obtaining of a loan secured by real property. Net cash means
Partnership revenues in excess of expenses, mortgage payment obligations, and a
reserve for contingencies and working capital as determined by the General
Partner in its reasonable discretion. A Partner's Unrecovered Equity means the
excess of (a) the balance of such Partner's capital account as set forth on
Schedule A, and the amount of cash and the fair market value of property
contributed by such Partner to the Partnership's capital after the date of this
Agreement over (b) the amount of cumulative distributions of cash from capital
transactions received by such Partner.
4. ALLOCATION OF PROFIT AND LOSS.
4.1 Generally. Except as provided in Section 4.2 hereof, Net Profit and
Net Loss shall be allocated to the Partners' capital accounts in proportion to
their Percentage Interests. For purposes hereof, Profit or Loss means for each
Partnership fiscal year an amount equal to the Partnership's taxable income or
loss for such year, increased by income that is exempt from federal income tax,
and reduced by expenditures that may neither be deducted nor added to the basis
of property for income tax purposes within the meaning of the Regulations issued
under Section 704 (b) of the code. Profit and Loss will be determined after
taking into account the special allocations prescribed in Section 4.2.
4.2 Special Allocations. Before making any allocations under Section 5.1
hereof, the Partnership shall comply with the Regulations under Section 704 (b)
of the Code, including the requirements related to qualified income offsets,
minimum gain charge backs (including those attributable to Partner nonrecourse
debt), the allocation of deductions attributable to nonrecourse debt (including
Partner nonrecourse debt), and the limit on allocating losses to Partners with
no deficit restoration obligation ("Regulatory Allocations"). All Regulatory
Allocations made by the Partnership shall be taken into account in allocating
Profit and Loss pursuant to Section 4.1, so that, to the extent possible, the
net amount of the cumulative allocations to each Partner under Section 4.1 and
Section 4.2 will be the same amount that would have been allocated to each
Partner had the Regulatory Allocations not occurred.
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4.3 Taxable Income, Gain, Loss, and Deduction. Taxable income, gain, loss,
and deductions (and any item thereof) shall be allocated among the Partners in
the same manner as under Section 4.1 and 4.2 except as otherwise required under
Sections 704(b) and (c) of the Code and the Regulations thereunder.
5. FINANCIAL MATTERS.
5.1 Banking. The Partnership shall maintain one or more bank accounts and
shall deposit therein all Partnership funds. Withdrawals from such accounts may
be made by any person designated by the General Partner.
5.2 Books and Reports. The Partnership will maintain full and accurate
books at its principal office. The Partners may examine such books at all
reasonable times. Within ninety (90) days after the close of each calender year,
the Partnership shall distribute to the Partners an unaudited financial
statement of the Partnership for such year and all information necessary for the
Partners to complete their federal and Virginia income tax returns with regard
to their interests in the Partnership for such year.
6. MANAGEMENT.
6.1 General Partner. The General Partner shall serve as the Partnership's
general partner until its resignation, insolvency, the transfer of its entire
interest in the Partnership, or the termination of its corporate existence
("Withdrawal"). Upon the General Partner's Withdrawal, its authority to manage
the Partnership's business shall terminate and a successor general partner shall
be chosen by unanimous agreement of the other Partners.
6.2 Duties and Authority. The General Partner shall have the sole authority
and responsibility for managing the Partnership and its business and shall take
all action required of the Partnership hereunder. All decisions regarding the
management of the Partnership shall be made and implemented by the General
Partner who shall not be required to obtain the consent of any other Partner
with regard to any action taken on the Partnership's behalf. In connection with
the foregoing, except as otherwise restricted herein, the General Partner shall
have all of the rights and powers of a general partner in a
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limited partnership formed under Virginia law as are consistent with the
furtherance of the Partnership's purposes and necessary or appropriate for the
conduct of the Partnership's business.
6.3 Partners. The Partners other than the General Partner shall take no
part in the management or control of the Partnership's business and shall have
no authority to act on behalf of or otherwise bind the Partnership.
6.4 Action by the Partnership. The Partnership shall be bound by any
document executed on the Partnership's behalf by the General Partner and by any
other action taken on the Partnership's behalf by the General Partner. No person
doing business with the Partnership shall be required to ascertain the General
Partner's actual authority to act as the Partnership's agent and shall be
exonerated from all liability if such person obtains the General Partner's
approval and the signature of the General Partner on the Partnership's behalf.
7. TRANSFER OF PARTNERSHIP INTEREST.
A Partner may not sell or otherwise dispose of its interest in the
Partnership.
8. DISSOLUTION AND TERMINATION.
8.1 Generally. The Partnership shall be dissolved and its affairs wound up
upon the first to occur of the following events ("Liquidating Events"):
1. the expiration of the Partnership's term as set forth in Section
1.4 of this Agreement;
2. the agreement of a Partners who together own at least sixty-six
and two-thirds percent (66-2/3%) of all the percentage Interests owned by all
Partners;
3. the General Partners's Withdrawal unless (a) the remaining General
Partners elect to continue the Partnership's business or (b) if there is no
remaining General Partners, all of the remaining Partners, within ninety (90)
days after the date of such Withdrawal, agree to continue the Partnership's
business and choose a successor general partner to do so;
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4. the sales or disposition of substantially all of the Partnership's
assets.
8.2 Winding Up. Upon the occurrence of a Liquidating Event, the Partnership
shall continue solely for the purpose of winding up its affairs in an orderly
manner, liquidating its assets and satisfying the claims of its creditors. The
General Partner shall oversee the winding up of the Partnership and shall
liquidate the Partnership's properties and assets a promptly as is consistent
with obtaining the fair market value thereof. The proceeds of such liquidation
shall first be applied to pay Partnership debts (including debts owed to a
Partner) and liquidation expense and any remaining proceeds shall then be
distributed to the Partners in accordance with Section 3 hereof. As soon as
reasonably practical thereafter, the Partnership shall provide each Partner with
a statement prepared and audited by its accountant that sets forth the
Partnership's assets and liabilities as of the date of complete liquidation and
the manner in which the Partnership's assets are to be distributed to the
Partners. Upon compliance with the foregoing distribution plan, the Partnership
shall file a Certificate of Cancellation.
8.3 No Deficit Restoration Obligation. No Partner whose capital account has
a deficit balance upon the Partnership's liquidation shall be obligated to
contribute to the Partnership's capital with respect to such deficit, nor shall
such deficit be deemed to be an obligation of such Partner to the Partnership,
to any Partnership creditor or to any other Partner, for any purpose whatsoever.
9. GENERAL PROVISIONS.
9.1 Governing Law. This Agreement shall be construed and the Partners'
rights and liabilities hereunder shall be determined in accordance with the laws
of the Commonwealth of Virginia, other than its conflict of laws principles and
provisions.
9.2 Binding Effect. This Agreement shall be binding upon, and inure to the
benefit of, the Partners' successors in interest.
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9.3 Entire Agreement. This Agreement contains the entire understanding
between the Partners regarding the subject matter of this Agreement and
supersedes all prior written or oral agreements around them regarding such
subject matter. No representation, agreement, arrangement, or understanding,
oral or written, exists between the Partners relating to the subject matter of
this Agreement that is not fully expresses herein.
[BALANCE OF PAGE LEFT INTENTIONALLY BLANK]
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WITNESS the following signatures:
GENERAL PARTNER
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STANSLEY RACING CORP.,
a Virginia corporation
By: /s/ O. James Peterson, III
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O. James Peterson, III, President
LIMITED PARTNER
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COLONIAL DOWNS HOLDINGS, INC.,
a Virginia corporation
By: _____________________________________
Jeffrey P. Jacobs, Chairman and
Chief Executive Officer
COMMONWEALTH OF VIRGINIA
CITY/COUNTRY OF New Kent
The foregoing document was acknowledged before me on March 19, 1997 by O.
James Peterson, III, President of Stansley Racing Corp.
/s/ Menna J. Robertson
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Notary Public
My Commission expires: October 31, 2000.
STATE OF OHIO
CITY/COUNTRY OF ______________
The foregoing document was acknowledged before me on ___________ __, 1997 by
Jeffrey P. Jacobs, Chairman and Chief Executive Officer of Colonial Downs
Holdings, Inc.
______________________________
Notary Public
My Commission expires: ___________________________, 19__
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WITNESS the following signatures:
GENERAL PARTNER
STANSLEY RACING CORP.,
a Virginia corporation
By: _________________________________
O. James Peterson, III, President
LIMITED PARTNER
COLONIAL DOWNS HOLDING, INC.,
a Virginia corporation
By: /s/ Jeffrey P. Jacobs
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Jeffrey P. Jacobs, Chairman and
Chief Executive Officer
COMMONWEALTH OF VIRGINIA
CITY/COUNTY OF ______________
The foregoing document was acknowledged before me on ____________ __, 1997
by O. James Peterson, III, President of Stansley Racing Corp.
__________________________________
Notary Public
My Commission expires: _____________________, 19__
STATE OF OHIO
CITY/COUNTY OF Cuyahoga
The foregoing document was acknowledged before me on March 20, 1997 by
Jeffrey P. Jacobs, Chairman and Chief Executive Officer of Colonial Downs
Holdings, Inc.
/s/ Susan M. Eyerman
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Notary Public
SUSAN M. EYERMAN, Notary Public
State of Ohio & Cuyahoga County, 19___
My Commission Expires Dec. 17, 2000
My Commission expires: _____________________, 19__
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THIRD AMENDED AND RESTATED
LIMITED PARTNERSHIP AGREEMENT
COLONIAL DOWNS, L.P.
SCHEDULE A
Partners Initial Capital Account
Colonial Downs Holdings, Inc. $1,996,069
Stansley Racing Corp. $ 100
A-1