EXHIBIT 10.2
AMENDMENT NO. 4 TO SECOND AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS, L.P.
BY AND AMONG
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS, INC.,
REVOCABLE TRUST OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ DATED DECEMBER 28, 1989
AS AMENDED AND RESTATED,
▇▇▇▇▇▇▇, INC.
AND
J.Q.H., INC.
Dated as of [__________] [__], 2005
Amendment No. 4 to Second Amended and Restated Agreement
of Limited Partnership of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, L.P.
This Amendment No. 4, dated as of __________ __, 2005 (this "Amendment")
to the Second Amended and Restated Agreement of Limited Partnership of ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ Hotels, L.P., dated as of November 23, 1994 (the "Partnership
Agreement") between ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., a Delaware corporation, as
general partner (the "General Partner"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Trustee of the
Revocable Trust of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated December 28, 1989, as Amended and
Restated, ▇▇▇▇▇▇▇, Inc., a Missouri corporation, and J.Q.H., Inc., a Missouri
corporation, as limited partners (the "Limited Partners"), as previously amended
by Amendment No. 1 dated February 24, 1995, Amendment No. 2 dated October 12,
1995, and Amendment No. 3 dated May 17, 2002. All defined terms used herein
without definition shall have the meanings assigned to such terms in the
Partnership Agreement.
WITNESSETH
WHEREAS, the General Partner and Limited Partners are parties to the
Partnership Agreement;
WHEREAS, the Partnership will be entitled to Federal income tax deductions
for amounts paid pursuant to Section 2.6 of the Merger Agreement of Merger Sub
and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc., and related to the granting of bonuses equal
to option spreads on the stock of the General Partner owned by the employees and
former employees of the Partnership and its subsidiaries (the "Option Expense")
equal to or greater than the amount described in Section 1(b) below;
WHEREAS, the parties hereto desire to amend the Partnership Agreement to
provide for the allocation of Federal income tax deduction for the Option
Expense of the Partnership equitably; and
WHEREAS, the General Partner and Limited Partners have determined that it
is in their mutual interests to amend the Partnership Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and understanding hereinafter set forth, the parties agree as
follows:
1. Amendment to the Partnership Agreement. The Partnership Agreement is,
effective as of the date hereof, hereby amended as follows:
(a) Definitions.
(i) "Annual Cap" means, with respect to any Partnership Year,
an amount equal to $25 million less any reimbursements made in any
such year pursuant to Section 7.4(b).
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(ii) "Chateau Amount" means the quotient of (i) the excess of
$2 million over the total expenditures on the Chateau on the Lake by
the Partnership and its subsidiaries on or before the Closing,
divided by (ii) .389.
(iii) "Public Share" means the quotient of (i) the sum of the
Chateau Amount and $8,809,769, divided by (ii) .754.
(b) Allocation of Deduction for Portion of Option Expense.
Notwithstanding any other provision of the Partnership Agreement, the
Partnership's Option Expense to the extent of their Public Share shall be
allocated as follows:
▇▇▇▇ ▇ ▇▇▇▇▇▇▇, Trustee of the Revocable
Trust of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ dated
December 28, 1989, as Amended and Restated 68.6%
▇▇▇▇▇▇▇, Inc. 6.8%
General Partner 24.6%
(c) Deduction of Remaining Option Expense. The excess of the Option
Expense over the amount allocated under Section 1.(a) shall be allocated
to the General Partner.
(d) Interim Closing of the Books. The Partnership shall compute its
income for the calendar year 2005 on the basis of an interim closing of
the books on the date hereof. The Partnership's Net Income or Net Loss (or
other items of income, gain, deductions or losses) for the periods
beginning after the date hereof and ending on the date hereof shall not
take into account any of the Option Expense.
2. Reimbursement Obligation. In accordance with Section 7.4.B of the
Partnership Agreement and subject to the terms of the Indenture, the Partnership
shall reimburse the General Partner or any successor General Partner for an
amount equal to the aggregate amount of bonuses paid by the General Partner (or
any predecessor General Partner), pursuant to Section 2.6 of the Merger
Agreement between Merger Sub and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc., to the holders of the
options to purchase shares of common stock of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc.
issued under, and in accordance with the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc. 1994
Employee Stock Option Plan, as amended and the ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Hotels, Inc. 1999
Non-Employee Director Stock and Stock Option Plan for services rendered, so long
as such reimbursement does not exceed the Annual Cap. Such amount is included
within the definition of Option Expense, and shall also be characterized as
expenses of the Partnership incurred on its behalf.
3. Counterparts. This Amendment may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Amendment.
4. Descriptive Headings. The descriptive headings of this Amendment are
inserted for convenience only and do not constitute part of this Amendment.
Signature Page Follows
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on the
date first written above.
GENERAL PARTNER:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ HOTELS, INC.
By:____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Chairman and CEO
LIMITED PARTNERS:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUSTEE OF THE
REVOCABLE TRUST OF ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
DATED DECEMBER 28, 19898 AS AMENDED
AND RESTATED
By:____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Trustee
▇▇▇▇▇▇▇, INC.
By:____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
J.Q.H., INC.
By:____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
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