AMENDED AND RESTATED LIMITED PARTNERSHIP AGREEMENT
OF
GS PARK SERVICES, L.P.
THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF GS PARK
SERVICES, L.P. ("Agreement") is made as of July _29, 1999 by, between and among
PENNWOOD RACING, INC., a Delaware corporation whose address appears on Schedule
"A" attached hereto, as the general partner (the "General Partner"), and the
undersigned limited partners whose names and addresses appear on Schedule "A"
attached hereto as the limited partners (collectively referred to hereinafter as
the "Limited Partners"). This Agreement shall constitute the Limited Partnership
Agreement of GS PARK SERVICES, L.P. (the "Partnership"). The General Partner and
the Limited Partners are hereinafter individually referred to as "Partner" and
collectively referred to as the "Partners."
WHEREAS, Pennsylvania National Turf Club, Inc. is being admitted as a
Partner as of the date hereof; and
WHEREAS, this Agreement replaces, amends and restates the Limited
Partnership Agreement entered into as of January 1, 1999.
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements set forth herein, and intending to be legally bound hereby, the
Partners hereby agree as follows:
FORMATION, NAME, PLACE OF BUSINESS,
PURPOSES AND TERM OF PARTNERSHIP
Formation. The Partnership has been formed as a limited partnership
pursuant to the relevant provisions of the Act in the State of New Jersey.
SECTION .3 Name and Office. The name of the Partnership shall continue
to be "GS PARK SERVICES, L.P.", and its business shall continue to be conducted
in such name. The principal office and place of business of the Partnership
shall continue to be located at Xxxxx 00 & Xxxxxxxxxxx Xxxx, Xxxxxx Xxxx, Xxx
Xxxxxx 00000, or at such other place as the General Partner may, from time to
time, determine. The address of the registered office and the name and address
of the registered agent for service of process shall continue to be Corporation
Service Company, 000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxxxx, Xxx Xxxxxx 00000.
Purposes, Business and Objectives.
The primary purpose of the Partnership is to provide
employment and personnel services in connection with the ownership and operation
of Garden State Race Track. The Partnership shall possess and may exercise all
the powers and privileges now or hereafter granted by the Act or by any other
law, together with any powers incidental thereto, so far as such powers and
privileges are necessary or convenient to the conduct, promotion or attainment
of the business, purposes or activities of the Partnership, including, without
limitation:
To enter into and perform contracts of any kind
necessary to, in connection with, or incidental to,
the accomplishment of the purposes of the
Partnership;
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To acquire, construct, operate, maintain, improve,
manage, buy, own, sell, convey, assign, mortgage,
refinance, rent or lease any property, real or
personal, in fee or under lease, or any rights
therein or appurtenant thereto, necessary or
appropriate for the operation of the Partnership;
To borrow money from any source, including, but not
limited to, any Partner or their affiliates, and to
make, issue or execute any notes, drafts, loan
agreements, guaranties or other evidences of
indebtedness and to secure the same by mortgage,
pledge, assignment or other lien in all or any part
of the property of the Partnership;
To negotiate for and conclude an agreement or
agreements for the sale, exchange or other
disposition of all or any part of the Partnership's
property;
To hire and compensate employees, agents, independent contractors,
attorneys and accountants;
To carry on any other activities necessary to, in connection with, or
incidental to the foregoing, and
To form and establish any subsidiaries, partnerships,
or limited liability companies to be owned in whole
or in part by the Partnership, and to conduct
business through such subsidiaries, partnerships or
limited liability companies.
The Partnership shall not engage in any other business without
the prior consent of the General Partner.
CAPITAL
Capital of the Partnership. The capital of the Partnership is the
aggregate amount of cash and the agreed fair market value of property
contributed or deemed contributed by the Partners to the Partnership as set
forth in Schedule "A" attached hereto and made a part hereof. The capital
described on Schedule "A" represents the agreed upon fair market value of the
Partners' interest in the capital of the Partnership as of the date hereof.
General Provisions.
Schedule AA@ shall be amended from time to time to reflect the
withdrawal or admission of Partners, any changes in the Percentage Interest of
any Partner arising from the transfer of any part of a Partnership Interest to
or by such Partner and any changes in the amounts contributed or agreed to be
contributed by any Partner. Notwithstanding the foregoing, no Partner shall be
permitted to withdraw or be admitted unless such admission or withdrawal is in
accordance with the terms of the Shareholders= Agreement.
A Capital Account shall be established for each Partner, and
shall be increased by: (1) the amount of money contributed by the Partner to the
Partnership; (2) the fair market value of property contributed by the Partner to
the Partnership (net of liabilities that the Partnership is considered to assume
or take subject to under Code Section 752); and (3) allocations to the Partner
of Partnership Profits (or items thereof). The Capital Account for each Partner
shall be decreased by: (1) the amount of money distributed to the Partner by the
Partnership; (2) the fair market
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value of property distributed to the Partner by the Partnership (net of
liabilities that such Partner is considered to assume or take subject to under
Code Section 752); and (3) allocations to the Partner of Partnership Losses (or
items thereof). In all events, the Capital Account of each Partner will be
determined and maintained throughout the term of the Partnership in accordance
with Treasury Regulation Section 1.704-1(b)(2)(iv).
The General Partner, in its discretion, may elect to have the
Capital Accounts of the Partners adjusted to reflect a revaluation of
Partnership assets on the Partnership's books (the "Revaluation Adjustment") in
accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(f).
Any Partner, including any additional or substitute Partner,
who acquires any interest in the Partnership or whose Partnership Interest is
increased by means of the transfer to him of all or part of the Partnership
Interest of another Partner, shall have a Capital Account which has been
appropriately established or adjusted to reflect such acquisition or transfer.
Any Partner who shall acquire any Partnership Interest by means of the transfer
to him of all or any part of the Partnership Interest of any other Partner
shall, with respect to the Percentage Interest so transferred, be deemed to be a
Partner of the same class as the transferor.
The Partnership may, at the discretion of the General Partner
and as provided in the Shareholders= Agreement, borrow for Partnership purposes
at any time and from any source. No Limited Partner shall be liable for any
indebtedness of the Partnership or be required to contribute any capital or to
lend any funds to the Partnership other than its Capital Contribution. If the
allocation of Losses or distributions required or permitted under this Agreement
result in the reduction of a Limited Partner's Capital Account, such reduction
need not be restored. The General Partner shall have no personal liability for
the repayment of the Capital Contribution of any Limited Partner.
No interest shall be paid on or with respect to the Capital
Contribution or the Capital Account of any Partner.
No Partner shall have the right to withdraw or reduce its
Capital Contribution.
RIGHTS, POWERS AND DUTIES OF PARTNERS
SECTION .1 Conduct of Partnership Business. The General Partner shall
use its best efforts to carry out the purposes, business and objectives of the
Partnership. Except as otherwise provided herein, all decisions with respect to
the management of the Partnership's business shall be made by the General
Partner as provided in the Shareholders= Agreement. The General Partner shall
have general responsibility for all aspects of the Partnership's business and
operations and which hereby is designated as the "tax matters partner" of the
Partnership within the meaning of Code Section 6231(a)(7).
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Powers of the General Partner. Except as limited by the terms of the
Shareholders= Agreement, the General Partner shall have the necessary powers to
carry out the purposes, business and objectives of the Partnership, including,
without limitation, the right to cause a Refinancing or Sale of Assets to occur
without the approval of the other Partners, and, except as otherwise provided
herein or by the laws of the State of New Jersey, shall possess and enjoy all of
the rights and powers of a partner of a partnership without limited partners.
Except as limited by the terms of the Shareholders= Agreement, the General
Partner shall have the right and power to execute and deliver, on the
Partnership's behalf, evidences of indebtedness and documents granting security
for the payment thereof (with or without warrant of attorney to confess judgment
against the Partnership or its property). Without limiting the generality of the
foregoing, except as limited by the terms of the Shareholders= Agreement, the
General Partner shall have the power and authority and is specifically
authorized to grant a warrant of attorney to confess judgment against the
Partnership. The General Partner shall not permit the funds of the Partnership
to be commingled with those of any other entity.
Authority of the General Partner to Deal with Affiliates. Except as
limited by the terms of the Shareholders= Agreement, the General Partner may, on
behalf of the Partnership, perform, or agree, contract or arrange with any of
its Affiliates for the performance of services for the Partnership with
compensation to be paid for such services as if it or such Affiliate were an
independent contractor, at such rates and terms that independent contractors
would impose.
Duties and Obligations of the General Partner.
The General Partner shall take any and all actions which may
be reasonably necessary or appropriate for the continuation of the Partnership's
valid existence as a limited partnership under the laws of the State of New
Jersey.
The General Partner shall prepare or cause to be prepared and
shall file on or before the due date (or any extension thereof) any Federal,
state or local tax returns required to be filed by the Partnership. The General
Partner shall cause the Partnership to pay any taxes payable by the Partnership.
The General Partner shall, from time to time, submit to any
appropriate state securities administrator or any other state agency such
documents, papers, information and reports as are required to be filed with or
submitted to such state securities administrator or any other state agency with
respect to the Partnership.
The General Partner shall, from time to time, prepare and file
all certificates (or amendments thereto) and other similar documents required by
law to be filed and recorded with respect to the Partnership for any reason, in
such office or offices as are required under the any applicable laws. The
General Partner shall do any and all other acts and things (including making
publications or periodic filings of this Agreement, any certificates or
amendments thereto or other similar documents) which may now or hereafter be
required or deemed by the General Partner to be necessary.
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Limited Partners. Except as otherwise expressly provided elsewhere
herein, the Limited Partners shall not participate in the management of the
Partnership, have any control over the Partnership's business or assets or have
any right or authority to act for or obligate the Partnership.
Other Interests of Partners. The Partners, as well as Affiliates of the
Partners, may engage in any business or possess any interest in other businesses
of every nature and description, independently or with others, including owning
and operating pari-mutuel racetracks or participation in any other gaming
business activity. Neither the Partnership nor the Partners shall have any
rights in such independent ventures including, without limitation, any rights to
the income or profits thereof by virtue of having become Partners in the
Partnership. Each Partner conducts other related businesses outside of New
Jersey, including competing businesses, and this Agreement shall not apply to
any such other activities; nor shall it prevent the Partners from individually
engaging in additional activities both within and outside of New Jersey, other
than the ownership and operation of Freehold Raceway and Garden State Race Track
and OTB Facilities (as defined herein), including without limitation, the
ownership and operation of one or more additional racetracks, off-track betting
or phone betting operations in New Jersey or elsewhere, other than OTB
Facilities.
Title to Property and Partition. All property of the Partnership,
whether tangible or intangible, real, personal or mixed, shall be owned by the
Partnership as an entity and no Partner shall have any ownership interest in
such property in its individual name or right, and each Partner=s Partnership
Interest shall be personal property for all purposes. No Partner, nor any
successor-in-interest to any Partner, shall have the right, while this Agreement
remains in effect, to have the property of the Partnership partitioned, or to
file a complaint or institute any proceeding at law or in equity to have any of
the property of the Partnership partitioned, and each of the Partners, on behalf
of itself and its successors, representatives and assigns, hereby irrevocably
waives any such right.
ALLOCATIONS
SECTION .1 Profits and Losses. Any Profits or Losses shall be allocated
among all of the Partners in accordance with, and in proportion to, their
respective Percentage Interests.
Allocation Upon Admission. Upon the admission of the Partners to the
Partnership, Profit and Loss during the month of admission shall be allocated
using the "monthly convention" (i.e., Partners admitted in a month are treated
as admitted on the first day of that month). If that method is determined to be
invalid for tax purposes, the allocation of Profit and Loss in such month shall
be made under any other permissible method which may be selected by the General
Partner taking into account its judgment of the best interests of the Limited
Partners as a class.
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Tax Allocations: Code Section 704(c). Except as otherwise provided
herein, allocations of Profits and Losses for tax purposes shall be made in the
same manner as the allocations for book purposes described in Section 4.1 of
this Agreement. However, in accordance with Code Section 704(c) and the
Regulations thereunder, items of income, gain, loss and deduction with respect
to any property contributed to the capital of the Partnership shall, solely for
tax purposes, be allocated among the Partners so as to take account of any
variation between the basis of the property and its fair market value at the
time the property was contributed to the Partnership.
Allocations to Reflect Capital Account Adjustments. Notwithstanding any
other provision hereof, in the event of a Revaluation Adjustment to the
Partners' Capital Accounts pursuant to Section 2.2(c) hereof, items of
depreciation, income, gain, loss or deduction with respect to the assets held by
the Partnership at the time of such Revaluation Adjustment shall be computed and
allocated for tax purposes in a manner which takes into account the variation
between the adjusted tax basis and the book value of such assets in a manner
consistent with Section 704(c) of the Code and Treasury Regulation Section
1.704-1(b)(2)(iv)(g).
DISTRIBUTIONS
Distributions. Except as provided in Section 7.3 regarding liquidating
distributions, Net Cash Flow, as determined by the General Partner in accordance
with the terms of the Shareholders= Agreement, shall be distributed to the
Partners no less frequently than annually in accordance with their respective
Percentage Interests.
Distribution of Proceeds from a Sale or Refinancing or Dissolution of
the Partnership. In the event of a sale of a portion of Partnership property
which does not cause the dissolution of the Partnership or a financing of
Partnership property, the General Partner may, in its sole and absolute
discretion, distribute all or a portion of the net cash proceeds therefrom to
the Partners in accordance with the Partners= Percentage Interest.
Limitation Upon Distributions. No distribution shall be declared and
paid unless, after the distribution is made, the assets of the Partnership
(valued at fair market value) are in excess of all liabilities of the
Partnership.
Reserves. The General Partners shall have the right to establish,
maintain and expend reserves for working capital, future investments, debt
service and such other purposes as they may deem necessary or advisable
(?Reserves").
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CERTAIN CHANGES OF GENERAL PARTNER
Withdrawal of General Partner. The General Partner may not voluntarily
withdraw from the Partnership without the written consent or approval of the
Limited Partners. The Limited Partners shall not have the right to remove the
General Partner.
Changes of General Partner Generally. Any substitute general partner
shall, immediately upon admission as a general partner, become the owner of the
Partnership Interest of the general partner whose place it is taking.
TERMINATION, DISSOLUTION AND WINDING UP
No Termination. Except as otherwise provided herein or in the Shareholders=
Agreement, the Partnership shall not be terminated by the death, substitution,
admission or withdrawal of any Partner.
Termination.
The Partnership shall be terminated and dissolved and its
affairs wound up upon the first of the following to occur:
A Sale of Assets;
The withdrawal, dissolution or Bankruptcy of the
General Partner, unless, within sixty (60) days of
such event, Limited Partners owning sixty-seven
percent (67%) of the Percentage Interests owned by
all Partners elect a substitute general partner to
continue the Partnership's business and such
substitute general partner agrees in writing to
accept such election; or
The determination of Limited Partners owning
sixty-seven percent (67%) or more of the Percentage
Interests owned by all Limited Partners, with or
without the General Partner's consent, that the
Partnership should be dissolved.
Notwithstanding anything herein to the contrary, upon a Sale
of Assets at a gain, where all or any portion of the consideration payable to
the Partnership is to be received by the Partnership more than ninety (90) days
after the date on which such Sale of Assets occurs, the Partnership shall
continue solely for purposes of collecting the deferred payments and making
distributions to the Partners.
SECTION .2 Dissolution and Winding Up. Upon the Partnership's
termination, the following steps shall be taken in the following order of
priority:
The Capital Account of each Partner shall be determined.
Profit or Loss to the date of termination, including realized gain or loss
(whether or not recognized for tax purposes) from a sale or other disposition,
the taking by eminent domain or the damage and destruction of all or
substantially all of the Partnership's assets, shall be allocated as set forth
in Article IV above and credited or charged to the Partners' Capital Accounts.
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The Partnership shall be dissolved and its affairs shall be
wound up. All debts and obligations of the Partnership shall be paid, discharged
or provided for by setting up appropriate Reserves.
The assets of the Partnership not required to pay, discharge
or provide for the Partnership's debts and obligations shall be distributed
among all Partners having positive Capital Accounts in the same proportion as
the positive Capital Account of each such Partner bears to the sum of all such
Partners' positive Capital Accounts.
PARTNERSHIP INTERESTS OF LIMITED PARTNERS
Additional Limited Partners. No Person shall be admitted to the
Partnership as a Limited Partner except upon a sale, transfer, assignment,
pledge, mortgage, hypothecation or grant of a security interest or other
disposition by a Limited Partner of all or a portion of his Partnership Interest
(each a "Disposition") in accordance with this Article VIII or in accordance
with the terms of the Shareholders= Agreement, as herein defined.
Assignment.
Except as provided in the Shareholders= Agreement, no
Partnership Interest of a Limited Partner or any portion thereof, or any
Percentage Interest of a Limited Partner in the Partnership, may be sold,
assigned, transferred, pledged, mortgaged, hypothecated, made subject to a
security interest or otherwise disposed of to any Person without the prior
written consent of the General Partner, which consent may be withheld in its
sole discretion. The Partners hereby acknowledge and agree that, notwithstanding
any general fiduciary duty that the General Partner may have as general partner
or otherwise, the General Partner, in its sole discretion, may withhold consent
to such sale, assignment, transfer, pledge, mortgage, hypothecation, grant of a
security interest or other disposition without any liability or accountability
to any Person. Any actual or attempted sale, assignment, transfer, pledge,
mortgage, hypothecation, grant of a security interest or other disposition by
any Limited Partner in violation of this Section 8.2(a) shall be null and void
and of no force or effect whatsoever. Each Limited Partner hereby acknowledges
the reasonableness of the restrictions imposed by this Section 8.2(a) in view of
the Partnership purposes and the relationship of the Partners. Accordingly, the
restrictions in this Section 8.2(a) shall be specifically enforceable. Neither
the Partnership nor any Partner shall be bound by: (i) any attempted disposition
or pledge, mortgage, hypothecation or grant of security interest which has not
been approved by the General Partner as required hereby; or (ii) a disposition,
pledge, mortgage, hypothecation or creation of a security interest which has
been consented to in writing by the General Partner until a counterpart of the
instrument accomplishing the same, executed and acknowledged by the parties
thereto, is delivered to the General Partner and the terms of Section 8.3 hereof
have been satisfied with respect to dispositions which result in the admission
of new Limited Partners.
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Substitution and Addition of Limited Partners.
No Person shall have the right to be admitted to the
Partnership as a Limited Partner unless all of the following conditions are
satisfied:
A fully executed and acknowledged written instrument
effectuating a Disposition has been filed with the
General Partner setting forth the intention of the
Limited Partner making the Disposition
("Transferor"), that his buyer, transferee or
assignee (each a "Transferee") become a Limited
Partner;
The Transferor and Transferee execute and acknowledge
such other instruments as the General Partner may
deem necessary or desirable to effect such admission,
including the written acceptance and adoption by the
Transferee of the provisions of this Agreement to
which the Transferor is a party, and the assumption
by the Transferee of all obligations of the
Transferor under this Agreement;
The Transferee has paid all reasonable expenses
incurred by the Partnership (including its legal
fees) in connection with its admission to the
Partnership, including but not limited to the cost of
the preparation, filing and publishing of any
amendment to the Certificate and any amendments of
filings under fictitious name registration statutes
or registration statutes lawfully required to qualify
the Partnership to do business in foreign
jurisdictions; and
The General Partner has consented in writing to the
Transferee's admission to the Partnership as a
Limited Partner pursuant to Section 8.2 above or per
the Limited Partnership Interests in accordance with
section 2.2 of the Shareholders' Agreement.
Once the above conditions have been satisfied, the Transferee
shall become a Limited Partner on the first day of the next following calendar
month. Upon admission of a Limited Partner pursuant to the provisions of this
Article, the Partnership shall make all further distributions on account of the
Partnership Interests or Percentage Interests in the Partnership so assigned or
issued to such a Limited Partner for such time as the Partnership Interests or
Percentage Interests are designated on its books in accordance with the above
provisions. Any Transferee so admitted to the Partnership as a Limited Partner
shall be subject to all provisions of this Agreement to which his Transferor was
a party as if originally a party hereto and thereto.
FISCAL MATTERS
Books and Records. The General Partner shall maintain full and accurate
books of the Partnership at the Partnership's principal place of business,
showing all receipts and expenditures, assets and liabilities, profits and
losses, and all other records necessary for recording the Partnership's business
and affairs, including those sufficient to record the allocations and
distributions. The books of the Partnership shall be kept on an accrual method
of accounting. During regular business hours and upon reasonable notice, each
Partner and his duly authorized representatives shall have access to and may
inspect and copy any of such books and records.
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Fiscal Year. The fiscal year of the Partnership shall be the calendar
year.
Reports.
Within ninety (90) days after the end of each fiscal year of
the Partnership, the General Partner shall furnish each Limited Partner with
such information as is necessary for the preparation of such Partner's income
tax returns.
Within one hundred twenty (120) days after the end of each
fiscal year of the Partnership, the General Partner shall furnish each Limited
Partner with an unaudited statement showing the income and expenses of the
Partnership for such fiscal year and the balance sheet of the Partnership as of
the end of such year, prepared by an independent certified public accountant
selected by the General Partner.
Bank Accounts. All funds of the Partnership shall be deposited in its
name in such checking and savings accounts or time deposits or certificates of
deposit as shall be designated by the General Partner from time to time.
Withdrawals therefrom shall be made upon such signature(s) as the General
Partner may designate.
Accounting Decision. All decisions with respect to accounting matters
shall be made by the General Partner. The Partners agree that, for financial and
accounting purposes, the Partnership may elect to treat certain items
differently from the manner in which such items are treated for tax purposes.
For tax purposes, Capital Accounts shall be determined in accordance with tax
accounting principles in the same manner as the Partnership prepares its Federal
income tax return.
Income Tax Elections. Except as specifically provided to the contrary
herein, all decisions as to income tax matters shall be made by the General
Partner.
The General Partner shall elect to claim the maximum deduction
allowed with respect to each item of cost recovery property of the Partnership.
The General Partner may, at any time, make or petition to
revoke (as the case may be) the election referred to in Code Section 754 or the
corresponding provision of any subsequent revenue act. Each Partner agrees in
the event of such an election to supply the Partnership with the information
necessary to give effect thereto.
Meetings. The General Partner shall not be required to call any annual
meetings of the Limited Partners. However, upon the request of Limited Partners
owning at least twenty-five percent (25%) of the Percentage Interests, the
General Partner shall promptly call an informational meeting of the Partners.
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Documents. The General Partner shall not have an obligation to deliver
copies of any filed Partnership certificates or amendments thereof to any
Limited Partner unless otherwise specifically requested by such Limited Partner.
COMPENSATION FOR SERVICES
Compensation of the General Partner. Except as otherwise provided
herein, the General Partner (in its capacity as General Partner) shall receive
no compensation for its services to the Partnership. The General Partner shall
be entitled to be reimbursed for reasonable out-of-pocket expenses incurred in
connection with the business of the Partnership upon presentation of receipts or
other satisfactory evidence in support thereof.
GENERAL PROVISIONS
SECTION 11.1 Notices. Except as otherwise provided in this Agreement,
all notices, consents, waivers, directions, requests, or other instruments or
communications provided for under this Agreement shall be in writing, signed by
the party giving the same and shall be deemed properly given only if sent by
registered or certified United States mail, return receipt requested, postage
prepaid, addressed: (a) in the case of the Partnership or the General Partner,
as the case may be, to the Partnership at its principal place of business set
forth in Schedule AA@, and (b) in the case of any Limited Partner, to such
Limited Partner at its address set forth in Schedule "A". Each Partner may, by
notice to the Partnership, specify any other address for the receipt of such
instruments or communications. Any notice so given shall be effective on the
date on which it is mailed. In any case where the consent of a Limited Partner
shall be required, such consent shall be deemed to have been given upon the
failure of such Limited Partner to send notice withholding his consent within
thirty (30) days following the effective time of notice requesting such consent.
A copy of all notices and other communications given hereunder by any Limited
Partner shall be sent to the General Partner.
SECTION 11.2 Indemnification and Limitation on Liability of the General
Partner and its Affiliates. The Partnership shall indemnify, defend and hold
harmless the General Partner and its officers, directors, employees and agents
against any claim, demand or liability (including without limitation, court
costs and attorneys' fees) incurred by it in connection with the business of the
Partnership, provided that the acts or omissions from which the claim, demand or
liability arises were performed or committed in the good faith belief that the
General Partner, through its officers, directors, employees or agents, was
acting within the scope of its authority and that it was not grossly negligent
or guilty of intentional misconduct. Neither the Partnership nor any Limited
Partner shall have any claim against the General Partner or its officers,
directors, employees or agents by reason of any act or omission of the General
Partner, or its officers, directors, employees or agents or by reason of any
disallowance by any taxing authority of any deduction or credit taken on any
Partnership tax return, provided that such act or omission of the General
Partner, through its officers, directors, employees or agents, was performed in
the good faith belief that it was acting within the scope of its authority, and
that it was not grossly negligent or guilty of intentional misconduct. The
General Partner may obtain, at the Partnership's expense, liability insurance
for the Partnership and the General Partner (and its officers, directors,
employees and agents), insuring against any of their acts, whether or not such
acts would be covered by the foregoing indemnification. The General Partner
shall not be liable for omitting to do any act which the General Partner is not
specifically required to do under this Agreement, and shall have no obligation
or liabilities, express or implied, to the Partnership or the other Partners,
except as specifically set forth in this Agreement.
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SECTION 11.3 Power of Attorney. Each Limited Partner irrevocably
constitutes and appoints the General Partner his true and lawful agent and
attorney-in-fact, in his name, place and xxxxx, to make, execute, acknowledge
and file:
this Agreement as required by the relevant provisions of the
Act and all amendments to this Agreement as required by the Act, including
amendments required for the admission or substitution of a Partner;
any cancellation of this Agreement as required by the relevant provisions
of the Act upon the termination of the Partnership;
any instruments or papers required to continue the business of the
Partnership;
all such other instruments, documents and certificates which
may from time to time be required by the laws of the State of New Jersey, the
United States of America or any other jurisdiction in which the Partnership
shall determine to do business (or any political subdivision or agency thereof)
to effectuate, implement, continue and defend the valid and subsisting existence
of the Partnership;
any and all amendments to Schedule "A" of this Agreement
necessary to admit or substitute a Limited Partner in accordance with Article
VIII above or to reflect a return of all or part of a Partner's Capital
Contribution; and
any business certificate, fictitious name certificate,
certificate of limited partnership, amendment thereto or other instrument or
document of any kind necessary to accomplish the business, purposes and
objectives of the Partnership in accordance with this Agreement.
It is expressly intended by the Limited Partners that the
foregoing power of attorney is coupled with an interest and that the power of
attorney shall survive any transfer or assignment by any Limited Partner of all
or any part of his Partnership Interest.
SECTION 11.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original and all of which
taken together shall constitute one and the same instrument.
SECTION 11.5 Amendment of Partnership Agreement.
(a) This Agreement may be amended with the consent of the
General Partner and with the consent of the Limited Partners owning at least
sixty-seven percent (67%) of the Partnership Interests owned by all Limited
Partners (other than Partnership Interest owned by the General Partner and/or
any of its Affiliates, if any of them also is a Limited Partner), provided,
however, that no amendment which has not been consented to by all the Limited
Partners shall:
commit any Limited Partner to make additional contributions to the capital
of the Partnership in addition to the Capital Contributions required herein;
subject any Limited Partner to personal liability; or
alter the rights of the Limited Partners with respect
to the allocations and distributions set forth in
this Agreement.
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(b) In addition, amendments may be made to this Agreement from
time to time by the General Partner, without the consent of any of the Limited
Partners: (1) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to add any
other provisions with respect to matters or questions arising under this
Agreement which will not be inconsistent with the existing provisions of this
Agreement; (2) to add to the representations, duties or obligations of the
General Partner or surrender any right or power granted to the General Partner
herein; or (3) to delete from or add to any provision hereof required to be so
deleted or added by a state "Blue Sky" commission, which addition or deletion is
deemed by such commission to be for the benefit or protection of the Limited
Partners; provided, however, that no amendment shall be adopted pursuant to this
Section unless the adoption thereof: (i) is for the benefit of or not adverse to
the interests of the Limited Partners; (ii) does not affect the distributions
and allocations among the Limited Partners or between the Limited Partners as a
class and the General Partner; and (iii) does not affect the limited liability
of the Limited Partners or the status of the Partnership as a partnership for
Federal income tax purposes.
SECTION 11.6 Limitation of Responsibility and Liability. No Partner, or
any of its Affiliates, shareholders, directors, officers, employees, or agents,
will be liable or responsible for the debts or obligations of any of the other
Partners or the Partnership.
SECTION 11.7 Singular and Plural/Gender. Wherever from the context of
this Agreement it appears appropriate, each term stated in either the singular
or the plural shall include the singular or the plural, and pronouns stated in
either the masculine, feminine or neuter gender shall include the masculine,
feminine and neuter.
SECTION 11.8 Severability. Invalidation or a holding of
unenforceability of any provision of this Agreement shall in no way affect any
other provision hereof, which other provisions shall remain in full force and
effect.
SECTION 11.9 Integration. This Agreement embodies the entire agreement
and understanding among the Partners relating to the subject matter hereof and
supersedes all prior agreements and understandings relating to such subject
matter.
SECTION 11.10 Applicable Law. This Agreement and the rights of the
Partners shall be governed by and construed and enforced in accordance with the
laws of the State of New Jersey.
SECTION 11.11 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the Partners and their respective heirs, personal
representatives, successors and permitted assigns.
SECTION 11.12 Headings. The descriptive headings of the Articles and
Sections hereof are inserted for convenience only and shall not affect the
interpretation or meaning thereof.
DEFINED TERMS
SECTION 12.1 Defined Terms. In addition to the terms defined elsewhere
in this Agreement, the following terms used in this Agreement shall have the
meanings specified below:
AAct@ means the Revised Uniform Limited Partnership
Act as adopted in the State of New Jersey, as amended
from time to time.
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"Affiliate" means (a) any Person directly or indirectly controlling,
controlled by or under common control with another Person, (b) any Person owning
or controlling ten percent (10%) or more of the outstanding voting securities of
such other Person, (c) any officer, director, partner or trustee of such Person,
and (d) if such other Person is an officer, director, partner or trustee of a
Person, the Person for which such Person acts in any such capacity.
"Bankruptcy" means, with respect to any Person, such Person making an
assignment for the benefit of creditors, becoming a party or subject to any
liquidation or dissolution action or proceeding with respect to such Person, the
institution of any bankruptcy, reorganization, insolvency or other proceeding
for the relief of financially distressed debtors with respect to such Person, or
a receiver, liquidator, custodian or trustee being appointed for such Person or
a substantial part of such Person=s assets and, if any of the same occur
involuntarily, the same is not dismissed, stayed or discharged within sixty (60)
days; or the entry of an order for relief against such Person under Title II of
the United States Code entitled "Bankruptcy"; or such Person taking any action
to effect, or which indicates its or his acquiescence in, any of the foregoing.
"Capital Account" means the amount of a Partner's Capital Contribution
adjusted for profits, losses and distributions as provided for in Section 2.2
hereof.
"Capital Contribution" means the cash and the agreed fair market value of
property contributed or deemed
contributed by a Partner to the Partnership.
"Code" means the Internal Revenue Code of 1986, as amended, and the
corresponding provisions of any future Internal Revenue law.
"Finance" or "Refinancing" means entering into any loan or modifying the
terms of any loan including, without limitation, any which is secured by a
mortgage, deed of trust or other similar lien on the property of the
Partnership.
AFreehold Raceway@ means that certain real property
and improvements located in Monmouth County, New Jersey
known as Freehold Raceway.
AGarden State Race Track@ means that certain real
property and improvements located in Camden County, New
Jersey known as Garden State Race Track.
XXxx Xxxx Flow@ means, for any period, the excess, if any, of (a) the sum
of (1) the gross receipts of the Partnership (as determined in accordance with
the cash receipts and disbursements method of accounting) during such period,
but without regard to any amounts received by the Partnership as a result of a
Sale of Assets and any amounts released during such period by the General
Partner from any Reserves maintained by the Partnership, over (b) the sum of (1)
all expenditures of the Partnership (as determined under the aforesaid method of
accounting) during such period, (2) all amounts applied during such period in
payment of interest or principal on any borrowing of the Partnership, and (3)
any amount added during such period by the General Partner to Reserves for
working capital, contingencies, replacements, expansions, acquisitions, or other
expenditures of the Partnership. Net Cash Flow and releases or additions to the
Reserves shall be made or determined by the General Partner in its sole
discretion.
AOTB Facilities@ means the off-track betting and phone betting operations
to be operated in New Jersey to the extent such off-track betting facilities and
phone betting operations are permitted by New Jersey legislation to be conducted
as a result of the holding of licenses to conduct racing at Freehold Raceway and
Garden State Race Track.
120
"Partnership Interest" means, in the case of any Partner, such Partner's
Capital Account, interest in the Profits and Losses and distributions of the
Partnership, voting rights and all other rights which a party to this Agreement
acquires hereby or by operation of law.
"Percentage Interest" means the percentage interest of each Partner as set
forth on Schedule "A", as amended from time to time.
"Person" means any natural person, partnership, corporation, trust, limited
liability company, association or other legal entity.
AProfits@ and ALosses@ means, for any period, the amounts equal to the
corresponding items of income, gain, deductions, credits and losses in the
aggregate or separately stated, as appropriate, for such period, all determined
in accordance with generally accepted accounting principles consistently
applied.
AReserves@ shall have the meaning set forth in
Section 5.4 of this Agreement.
"Sale of Assets" means the sale or other disposition of all or
substantially all of the Partnership's
assets. For purposes of this definition, the phrase "other disposition" includes
a taking of all or substantially all of a property by eminent domain or the
damage or destruction of all or substantially all of such property.
AShareholders= Agreement@ means that Shareholders= Agreement made and
entered as of the _29 day of July, 1999, by, between, and among Greenwood
Racing, Inc., Pennwood Racing, Inc., Greenwood Limited Partner, Inc., Benstone
Partners, Penn National Holding Company, Penn National GSFR, Inc., and
Pennsylvania National Turf Club, Inc., as same may be amended from time to time.
ATreasury Regulation@ means the regulations promulgated by the Internal
Revenue Service, in accordance with the Internal Revenue Code of 1986, as
amended, and the corresponding provisions of any future Internal Revenue law.
121
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
ATTEST: GENERAL PARTNER:
PENNWOOD RACING, INC.
/s/ Xxxxxxx X. McDonnell_____ By:_/s/Xxxxxx X. Handel______
Xxxxxxx X. XxXxxxxxx, Secretary Xxxxxx X. Xxxxxx, President
LIMITED PARTNER(S):
GREENWOOD LIMITED PARTNER, INC.
/s/Xxxxxxx X. XxXxxxxxx By: /s/Xxxxxx X. Xxxxxx
Xxxxxxx X. XxXxxxxxx, Secretary Xxxxxx X. Xxxxxx, President
PENNSYLVANIA NATIONAL TURF CLUB, INC.
/s/Xxxx Xxxxxxxxxx __________ By: /s/Xxxxxx X. Ippolito___
Name: Xxxx Xxxxxxxxxx Name: Xxxxxx X. Xxxxxxxx
Title: Secretary/Treasurer
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SCHEDULE "A"
TO
LIMITED PARTNERSHIP AGREEMENT
OF
GS PARK SERVICES, L.P.
Capital Percentage
Contribution Interest
GENERAL PARTNER:
Pennwood Racing, Inc. $1.00 .1%
c/o Greenwood Racing, Inc.
0000 Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
LIMITED PARTNER(S):
Greenwood Limited Partner, Inc. $499.50 49.95%
0000 Xxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxx
Pennsylvania National Turf Club, Inc. $499.50 49.95%
000 Xxxxxxxxx Xxxx.
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
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