EX-10(81)
FIFTH AMENDMENT TO
LIMITED PARTNERSHIP AGREEMENT OF
DES PLAINES DEVELOPMENT LIMITED PARTNERSHIP
This Fifth Amendment (this "Amendment") to Limited Partnership Agreement of Des
Plaines Development Limited Partnership is made as of this 1st day of April,
1997 by and between ▇▇▇▇▇▇'▇ Illinois Corporation, a Nevada corporation, and
Des Plaines Development Corporation.
Recitals
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A. The parties hereto are parties to that certain Limited Partnership
Agreement of Des Plaines Development Limited Partnership, dated as of February
28, 1992 (as amended by the First, Third and Fourth Amendments, there being no
second amendment, to Limited Partnership Agreement and as amended hereby, the
"Partnership Agreement"). Capitalized terms used herein and not defined herein
shall have the meaning given to them in the Partnership Agreement.
B. The Illinois Gaming Board has requested that the General Partner
terminate its revenue based management fee contained in the Management
Agreement between the Partnership and the General Partner.
C. The parties hereto desire to modify Article 4 of the Partnership
Agreement in recognition of the General Partner's elimination of its Management
Fee as provided in that certain Management Agreement entered into between the
Partnership and ▇▇▇▇▇▇'▇ Illinois Corporation dated as of February 28, 1992,
(the "Management Agreement").
D. The parties hereto desire to enter into certain other agreements with
respect to the Partnership, and to amend certain provisions of the Partnership
Agreement, all as more fully set forth herein.
Agreement
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NOW, THEREFORE, in consideration of the mutual agreements of the parties
hereto and subject to the terms and conditions hereof, the parties hereto agree
as follows:
1. Amendment to Definitions. The Partnership Agreement shall be amended
as follows:
a. The following definition is hereby added to Article I of the
Partnership Agreement:
"Gross Gaming Revenue" means the net win from gaming activities,
which is the difference between gaming wins and losses before
deducting costs and expenses.
2. Amendment to Section 4.01. Section 4.01 of the Partnership Agreement
is hereby deleted in its entirety and the following is hereby substituted
therefor:
Section 4.01 Allocations of Taxable Income. Except as provided
herein and in Section 4.07 hereof, taxable income of the Partnership shall
be allocated among the Partners in accordance with their Percentage
Shares:
a. So long as ▇▇▇▇▇▇'▇ is the Manager pursuant to the
Management Agreement and receives no other Management Fee pursuant to
the Management Agreement, then in any fiscal year in which
Partnership Gross Gaming Revenues are $160 million or greater,
taxable income (excluding any gain realized in a Major Capital Event)
shall be allocated 83.25 percent to General Partner and 16.75 percent
to Limited Partner;
b. So long as ▇▇▇▇▇▇'▇ is the Manager pursuant to the
Management Agreement and receives no other Management Fee pursuant to
the Management Agreement, then in any fiscal year in which
Partnership Gross Gaming Revenues are less than $160 million, taxable
income (excluding any gain realized in a Major Capital Event) shall
be allocated 83.5 percent to General Partner and 16.5 percent to
Limited Partner.
c. Gain realized in a Major Capital Event shall be allocated
among the Partners in accordance with their Percentage Shares.
3. Amendment to Section 4.04. Section 4.04 of the Partnership Agreement
is hereby amended to delete the word "and" from the end of subsection (d) and
adding the following subsections (e) and (f):
(e) Fifth, to any Partner whose capital account is greater than
its Percentage Share of the Partnership's combined capital accounts
until that Partner's capital account is equal to its Percentage Share
of the Partnership's combined capital accounts; and
(f) Sixth, the balance, if any, to the Partners in accordance
with their Percentage Shares.
4. Amendment to Section 4.05. Section 4.05 of the Partnership Agreement
is hereby amended to delete the word "and" from the end of subsection (b) and
adding the following as subsections (c) and (d):
(c) Third, to any Partner whose capital account is greater than
its Percentage Share of the Partnership's combined capital accounts
until that Partner's capital account is equal to its Percentage Share
of the Partnership's combined capital accounts; and
(d) Fourth, the balance, if any, to and among the Partners in
accordance with their Percentage Shares.
5. Amendment to Section 5.05. Section 5.05 of the Partnership Agreement
is hereby amended by adding the following text at the end of the Section:
Notwithstanding the foregoing, the terms of the Management
Agreement, which is attached hereto as Exhibit A, are incorporated by
reference as though set forth herein verbatim. However, Article 10
shall have no application so long as ▇▇▇▇▇▇'▇ continues as Manager
pursuant to the Management Agreement and receives the allocation set
forth at Section 4.01 a. or b. of the Fifth Amendment to Limited
Partnership Agreement.
6. Amendment to Section 11.08. Section 11.08 is hereby amended to
change the reference to "The Promus Companies Incorporated" found at two places
in the Section, to "▇▇▇▇▇▇'▇ Entertainment, Inc." and by adding the following
text at the end of the Section:
Anything herein to the contrary notwithstanding, the Limited
Partner's Percentage Share shall in no way be affected by any change
in the ownership of the outstanding stock of the General Partner,
including any change in control of the ownership of the common stock
of ▇▇▇▇▇▇'▇ Entertainment, Inc.
7. Amendment to Section 12.03. Section 12.03(a) is hereby amended by
deleting the reference to "(c)" in the second line of (ii) and replacing it
with "(f)" and deleting (iii) in its entirety.
8. Amendment to Section 13.14. Section 13.14 is deleted in its entirety
as the Amended and Restated Loan Agreement has been repaid in full.
9. References. All references to the Partnership Agreement contained
therein shall be deemed to refer to the Partnership Agreement as previously
amended and as amended hereby.
10. Modification. Except as previously modified and as modified hereby,
the Partnership Agreement and the First through Fourth Amendments thereto
remain in full force and effect. In the case of any inconsistency between this
Fifth Amendment and the Partnership Agreement or any of the First through
Fourth Amendments, this Amendment shall control.
11. Counterparts. This Amendment may be executed in one or more
counterparts, each of which is an original and all of which constitute one
agreement.
12. Gaming Approval. The parties hereto confirm that the Partnership
Agreement, as amended hereby, is subject to all statutes and regulations
regulating gaming in the state of Illinois, including without limitation, any
applicable approval of the Illinois Gaming Board.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of
the date first written above.
GENERAL PARTNER:
▇▇▇▇▇▇'▇ ILLINOIS CORPORATION,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Vice President
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LIMITED PARTNER:
DES PLAINES DEVELOPMENT
CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: President
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I hereby consent to the foregoing Amendment, and confirm and ratify my
guarantee contained in the Partnership Agreement in all respects.
/s/ ▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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▇▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Guarantor
CONSENT OF SECURED PARTY
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The undersigned, First Midwest Bank, National Association, formerly known as
First Midwest Bank/Illinois, N.A., as holder of a security interest in the
limited partnership interest of Des Plaines Development Corporation in Des
Plaines Development Limited Partnership under the Partnership Agreement
evidenced by that certain UCC-1 Financing Statement recorded with the Office of
the Secretary of State for the State of Illinois on August 18, 1994, as Filing
No. 3295940, consents to the foregoing Amendment.
First Midwest Bank, National
Association, f/k/a First Midwest
Bank/Illinois, N.A.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Its: Vice President
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Date: 4/9/97
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