EXHIBIT 10.1(4)
Patriot American Hospitality Partnership, L.P.
Third Amendment to
Second Amended and Restated
Agreement of Limited Partnership
This Third Amendment is made as of July 1, 1997 by PAH GP, Inc., a Delaware
corporation, as general partner (the "General Partner") of Patriot American
Hospitality Partnership, L.P., a Virginia limited partnership (the
"Partnership"), and as attorney-in-fact for each of the limited partners of the
Partnership (collectively, the "Limited Partners") for the purpose of amending
the Second Amended and Restated Agreement of Limited Partnership of the
Partnership dated as of April 11, 1997, as amended to date (the "Partnership
Agreement"). All capitalized terms used herein and not defined shall have the
respective meanings ascribed to them in the Partnership Agreement.
WHEREAS, upon an election by a Limited Partner to redeem units of limited
partner interest in the Partnership ("Partnership Units"), the General Partner
or Patriot American Hospitality, Inc. ("Patriot REIT") has the option to acquire
such Partnership Units in exchange for shares of the common stock of Patriot
REIT;
WHEREAS, pursuant to a merger of Patriot REIT with and into California
Jockey Club, a Delaware corporation to be renamed as Patriot American
Hospitality, Inc. ("New Patriot REIT"), the holders of the common stock of
Patriot REIT are entitled to receive 0.51895 shares of the common stock of New
Patriot REIT plus 0.51895 shares of the common stock of Bay Xxxxxxx Operating
Company, a Delaware corporation to be renamed as Patriot American Hospitality
Operating Company, a Delaware corporation ("Patriot Operating Company"), which
shares are paired for purposes of trading on the public securities markets (each
paired share of the common stock of New Patriot REIT and Patriot Operating
Company, a "Paired Share");
WHEREAS, in connection with the merger transaction, the Limited Partners
other than PAH LP, Inc. have become limited partners in Patriot American
Hospitality Operating Partnership, L.P., a Delaware limited partnership
("Management Partnership"), the general partner of which is Patriot Operating
Company, and have redemption rights with respect to their units of limited
partner interest in Management Partnership ("Management Units") that permit
Patriot Operating Company to purchase Management Units tendered for redemption
in exchange for shares of its common stock;
WHEREAS, it is necessary and desirable to coordinate the exercise of the
redemption rights granted pursuant to the Partnership Agreement with those
granted pursuant to the agreement of limited partnership of the Management
Partnership (the "Management Partnership Agreement") so that Property Units and
Management Units may be exchanged for publicly traded Paired Shares, and the
General Partner is authorized pursuant to Section 7.01(d) of the Partnership
Agreement to modify the Redemption Right of the Limited Partners
to reflect the kind and amount of securities issuable to a holder of REIT Shares
upon the occurrence of a merger; and
WHEREAS, the General Partner desires to make certain other conforming
amendments in connection with the foregoing, which amendments may be made in the
General Partner's discretion pursuant to Section 11.01 of the Partnership
Agreement.
NOW, THEREFORE, the General Partner undertakes to implement the following
amendments to the Partnership Agreement:
Section 1. Amendments to Text of Partnership Agreement.
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A. Article I, Defined Terms, is amended to add the following definitions of
"Management Partnership Unit" and "Paired Share"
"Management Partnership Unit" means a unit of limited partner interest
in Patriot American Hospitality Operating Partnership, L.P., a Delaware
limited partnership ("Management Partnership").
"Paired Share" means a share of common stock of the Company, par value
$.01 per share as paired to a share of common stock of Patriot American
Hospitality Operating Company, par value $.01 per share.
B. Article I, Defined Terms, is amended to replace the definitions of "Cash
Amount," "Company" and "REIT Share" with the following definitions. All other
terms defined in Article I shall remain in full force and effect.
"Cash Amount" means an amount of cash per Partnership Unit equal to
the value of the REIT Shares Amount on the date of receipt by the Company
of a Notice of Redemption. The value of the REIT Shares Amount shall be
equal to the REIT Shares Percentage (as defined below) times the average of
the daily market price of Paired Shares for the ten consecutive trading
days immediately preceding the date of such valuation. The market price
for each such trading day shall be: (i) if the Paired Shares are listed or
admitted to trading on any securities exchange or the NYSE, the sale price,
regular way, on such day, or if no such sale takes place on such day, the
average of the closing bid and asked prices, regular way, on such day, (ii)
if the Paired Shares are not listed or admitted to trading on any
securities exchange or the NYSE, the last reported sale price on such day
or, if no sale takes place on such day, the average of the closing bid and
asked prices on such day, as reported by a reliable quotation source
designated by the Company, or (iii) if the Paired Shares are not listed or
admitted to trading on any securities exchange or the NYSE and no such last
reported sale price or closing bid and asked prices are available, the
average of the reported high bid and low asked prices on such day, as
reported by a reliable quotation source designated by the Company, or if
there shall be no bid and asked prices on such day, the average of the high
bid and low
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asked prices, as so reported, on the most recent day (not more than ten
days prior to the date in question) for which prices have been so reported;
provided that if there are no bid and asked prices reported during the ten
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days prior to the date in question, the value of the Paired Shares shall be
determined by the Company acting in good faith on the basis of such
quotations and other information as it considers, in its reasonable
judgment, appropriate. In the event the REIT Shares Amount includes rights
that a holder of Paired Shares would be entitled to receive, then the value
of such rights shall be determined by the Company acting in good faith on
the basis of such quotations and other information as it considers, in its
reasonable judgment, appropriate. For purposes of this definition, the
"REIT Shares Percentage" shall equal the percentage of the value of a
Paired Share that is represented by a REIT Share, as determined pursuant to
that certain Pairing Agreement dated as of February 17, 1983, as amended
from time to time, by and between the Company and Patriot American
Hospitality Operating Company. In the event that the REIT Shares are no
longer paired with shares of the common stock of Patriot American
Hospitality Operating Company, the REIT Shares Amount shall be based on the
value of REIT Shares as determined in accordance with the principles
applied to the valuation of Paired Shares.
"Company" means Patriot American Hospitality, Inc., a Delaware
corporation, and its successors.
"REIT Share" means a share of common stock of the Company, $.01 par
value per share.
C. Article VIII, Rights and Obligations of the Limited Partners, shall be
amended to replace the first phrase of the first sentence of Section 8.05(a)
with the following phrase:
"Subject to Sections 8.05(b), 8.05(c), 8.05(d), 8.05(e), 8.05(f),
8.05(g) and 8.05(h),"
D. Article VIII, Rights and Obligations of the Limited Partners, shall be
amended to add paragraphs (h) to section 8.05, as follows:
(h) Paired Shares. Notwithstanding the provisions of Sections
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8.05(a) and 8.05(b), a Limited Partner shall not be entitled to exercise
the Redemption Right with respect to any Partnership Units unless the
Limited Partner is entitled to exercise and simultaneously exercises its
redemption right under the Management Partnership Agreement with respect to
an equal number of Management Partnership Units of the same class or series
so that the General Partner and/or the Company, in cooperation with Patriot
Operating Company, may deliver Paired Shares in redemption of such
Partnership Units and Management Partnership Units. The restriction set
forth in this paragraph (h) shall continue in effect until such time as the
provisions of that certain Pairing Agreement, dated as of February 17,
1983, as amended from time to
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time, by and between Patriot American Hospitality, Inc. and Patriot
American Hospitality Operating Company shall terminate and be of no further
force or effect.
E. Exhibit B to the Agreement, Form of Notice of Exercise of Redemption Right,
shall be replaced with Exhibit B appended hereto.
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Section 2. Effective Date. The amendments to the text of the Partnership
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Agreement provided in Section 1 of this Third Amendment shall take effect as of
the date first set forth above. Except as amended by Section 1 of this Third
Amendment, the terms of the Agreement shall remain in full force and effect.
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IN WITNESS WHEREOF, the General Partner has executed this First Amendment as
of the date first written above.
GENERAL PARTNER
PAH GP, INC.
/s/ Xxxx X. Xxxxxxxx
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By: Xxxx X. Xxxxxxxx
LIMITED PARTNERS
By: PAH GP, Inc. as attorney-in-fact
for each of the Limited Partners
/s/ Xxxx X. Xxxxxxxx
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By: Xxxx X. Xxxxxxxx
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