EXHIBIT 10.1(3)
CONTRIBUTION AGREEMENT
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AND SECOND AMENDMENT TO
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AGREEMENT OF LIMITED PARTNERSHIP
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This CONTRIBUTION AGREEMENT AND SECOND AMENDMENT TO AGREEMENT OF LIMITED
PARTNERSHIP (the "Agreement") is entered into as of July 1, 1997, by and among
Patriot American Hospitality, Inc., a Delaware corporation (the "REIT"), Patriot
American Hospitality Partnership, L.P., a Virginia limited partnership (the
"Operating Partnership"), PAH GP, Inc., a Delaware corporation, PAH LP, Inc., a
Delaware limited partnership and PAH ▇▇▇▇▇ Operating Corporation, a Delaware
corporation.
WHEREAS, the REIT is the surviving entity of a merger (the "Merger") by and
between Patriot American Hospitality, Inc., a Virginia corporation and
California Jockey Club, a Delaware corporation;
WHEREAS the REIT is a 1% general partner and an approximately 84% limited
partner of the Operating Partnership;
WHEREAS, the REIT desires to contribute and transfer a portion of its
assets as indicated on Schedule A attached hereto (the "Racetrack Interests") to
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the Operating Partnership (the "Partnership Contribution") in exchange for units
of limited partnership interest ("Units") in the Operating Partnership to be
issued to the REIT, and the Operating Partnership desires to accept such
Racetrack Interests in consideration for Units as provided in this Agreement;
WHEREAS, THE REIT further desires to contribute its 1% general partner
interest (the "PAH ▇▇▇▇▇ Interest") in PAH-▇▇ ▇▇▇▇▇ Partners, L.P., a Delaware
limited partnership, to PAH ▇▇▇▇▇ Operating Corporation in exchange for 100
shares of common stock, $.01 par value (the PAH ▇▇▇▇▇ Common Stock"), of PAH
▇▇▇▇▇ Operating Corporation, and PAH ▇▇▇▇▇ Operating Corporation desires to
accept such interest in consideration for the PAH ▇▇▇▇▇ Common Stock as provided
in this Agreement;
WHEREAS, upon completion of the Contribution, the REIT further desires to
contribute and transfer Units equal to a 1% general partner interest in the
Operating Partnership to PAH GP, Inc. as additional paid-in capital, and PAH GP,
Inc. desires to accept such interest;
WHEREAS, upon the completion of the Contribution, the REIT further desires
to contribute and transfer all remaining Units, equal to an approximately 84%
limited partner interest, to PAH LP, Inc. as additional paid-in capital, and PAH
LP, Inc. desires to accept such interest; and
WHEREAS, the general partner desires to amend the Second Amended and
Restated Agreement of Limited Partnership of the Operating Partnership, dated
April 11, 1997, as amended (the "Partnership Agreement"), to implement the
amendments detailed herein.
NOW THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto agree as follows:
Section 1. Contributions
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1.1 Contribution of Racetrack Interests. The REIT hereby contributes and
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transfers all right, title and interest in the Racetrack Interests as follows:
(a) 99% of the Racetrack Interests will be contributed to Patriot Racetrack Land
LLC, a Delaware limited liability company of which the Operating Partnership is
a 99% member, and Patriot Land Holding, LLC, a Delaware limited liability
company, is a 1% member; and (b) 1% of the Racetrack Interests will be
contributed to Patriot Land Holding, LLC, a Delaware limited liability company
of which the Operating Company is the sole member. In consideration of such
contribution and transfer, the Operating Partnership hereby issues to the REIT
_____ Units. The price per Unit to be received by the REIT being $_____.
1.2 Contribution of PAH ▇▇▇▇▇ Interest. The REIT hereby contributes and
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transfers all right, title and interest in the PAH ▇▇▇▇▇ Interest to PAH ▇▇▇▇▇
Operating Corporation. In consideration of such contribution and transfer, PAH
▇▇▇▇▇ Operating Corporation hereby issues to the REIT the PAH ▇▇▇▇▇ Common
Stock.
1.3 Contribution of Units to PAH GP, Inc. The REIT hereby contributes
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and transfers all right, title and interest in _____ Units, representing a 1%
general partner interest in the Operating Partnership, to PAH GP, Inc.
1.4 Contribution of Units to PAH LP, Inc. The REIT hereby contributes
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and transfers all right, title and interest in _____ Units, representing an
approximate 84% limited partner interest in the Operating Partnership, to PAH
LP, Inc.
Section 2. Admission of Substitute Limited Partner.
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2.1 Pursuant to the terms of this Agreement, the REIT has transferred
_____ Units to PAH LP, Inc. Pursuant to Section 9.03 of the Partnership
Agreement, PAH LP, Inc. is hereby admitted as a Substitute Limited Partner (as
defined in the Partnership Agreement) of the Operating Partnership and hereby
agrees to become a party to and be bound by all of the terms and conditions of
the Partnership Agreement.
2.2 The admission of PAH LP, Inc. as a Substitute Limited Partner of
the Operating Partnership shall become effective as of the date of this
Agreement, which shall also be the date upon which the name of PAH LP, Inc. is
recorded on the books and records of the Operating Partnership.
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Section 3. Admission of Substitute General Partner.
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3.1 Pursuant to Section 7.01(d) of the Partnership Agreement, PAH
GP, Inc. is hereby admitted as the Substitute General Partner (as defined in the
Partnership Agreement) of the Operating Partnership) and hereby agrees to assume
all of the obligations of the General Partner (as defined in the Partnership
Agreement).
3.2 The admission of PAH GP, Inc. as the Substitute General Partner
of the Operating Partnership shall become effective as of the date of this
Agreement, which shall also be the date upon which the name of PAH GP, Inc. is
recorded on the books and records of the Operating Partnership.
Section 4. Amendment to Partnership Agreement.
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Pursuant to Article XI of the Partnership Agreement, the general partner
of the Operating Partnership, on its own behalf and as attorney-in-fact for its
Limited Partners, hereby amends the Partnership Agreement by deleting Exhibit A
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thereto in its entirety and replacing it with Exhibit A attached hereto.
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Section 5. Miscellaneous.
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5.1 Governing Law. This Agreement shall be construed under and
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governed by the internal laws of the State of Delaware without regard to its
conflict of laws provisions.
5.2 Execution in Counterparts. For the convenience of the parties
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and to facilitate execution, this Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document.
5.3 Amendments. This Agreement may not be amended or modified, nor
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may compliance with any condition or covenant set forth herein be waived,
except by a writing duly and validly executed by each party hereto, or in the
case of a waiver, the party waiving compliance.
[Remainder of Page Intentionally Left Blank.]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
executed as of the date set forth above by their duly authorized
representatives.
PATRIOT AMERICAN HOSPITALITY,
INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board and Chief
Executive Officer
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: Patriot American Hospitality, Inc., a
Delaware corporation, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board and Chief
Executive Officer
SUBSTITUTE GENERAL PARTNER
PAH GP, INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board and Chief
Executive Officer
PAH LP, INC., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board and Chief
Executive Officer
PAH ▇▇▇▇▇ OPERATING CORPORATION,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board and Chief
Executive Officer
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SCHEDULE A
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The REIT will contribute to the Operating Partnership all of its
tangible and intangible assets, with the exception of the following:
(i) The PAH ▇▇▇▇▇ Interest.
(ii) The REIT's limited partnership Units and general partnership
Units in the Operating Partnership.
(iii) Non-subordinated ground lease entered into between the REIT and
Borders, Inc. in November 1996.
(iv) The land, including any and all improvements thereon, owned by
California Jockey Club prior to the Merger.
(v) Any and all contracts of the REIT which require third party
consent upon assignment.
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PATRIOT AMERICAN HOSPITALITY PARTNERSHIP,L.P.
ADDITIONAL LIMITED PARTNER SIGNATURE PAGE
The undersigned, desiring to become an additional Limited Partner of Patriot
American Hospitality Partnership, L.P. (the "Partnership"), hereby becomes a
party to the Second Amended and Restated Agreement of Limited Partnership of the
Partnership (the "Partnership Agreement"), The undersigned agrees that his
signature page may be attached to any counterpart copy of the Partnership
Agreement.
PAH LP, Inc., a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman of the Board and Chief
Executive Officer
By the Limited Partner's execution hereof, such Limited Partner:
(i) grants a power of attorney under Section 8.02 of the Partnership
Agreement;
(ii) represents and warrants to the General Partner, to the Company and to
the Partnership that the acquisition of his Partnership Interests is made as a
principal for his account for investment purposes only and not with a view to
the resale or distribution of such Partnership Interest; and
(iii) agrees that he will not sell, assign or otherwise transfer his
Partnership Interest or any fraction thereof, whether voluntarily or by
operation of law or at judicial sale or otherwise, to any Person who does not
make the representations and warranties to the General Partner set forth in
clause (ii) above and similarly agree not sell, assign or transfer such
Partnership Interest or fraction thereof to any Person who does not similarly
represent, warrant and agree.
All capitalized terms used but not specifically defined herein shall have
the meaning ascribed to them in the Partnership Agreement.
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