EX-10.1 1st Amend to 3rd Amend & Restated Agrmnt



 







Exhibit 10.1

EXECUTION COPY




FIRST AMENDMENT TO

THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

OF BOYKIN HOTEL PROPERTIES, L.P.




     THIS FIRST AMENDMENT TO THIRD AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF BOYKIN
HOTEL PROPERTIES, L.P. (this “Amendment”), dated as of the 19th day of May, 2006, is
entered into by and among Boykin Lodging Company, an Ohio corporation (the “General Partner”), and
those limited partners of Boykin Hotel Properties, L.P., an Ohio limited partnership (the
“Partnership”), listed on the signature pages attached hereto (collectively, the “Signing Limited
Partners,” and together with the General Partner, the “Signing Partners”).



     WHEREAS, the General Partner and the limited partners of the Partnership (the “Limited
Partners”) entered into a Third Amended and Restated Agreement of Limited Partnership of the
Partnership as of September 30, 2002 (the “Partnership Agreement”);



     WHEREAS, the General Partner and the Partnership intend to enter into a proposed Agreement and
Plan of Merger among Braveheart Investors LP, a Delaware limited partnership (“Parent”), Braveheart
II Realty (Ohio) Corp., an Ohio corporation (“REIT Merger Sub”), Braveheart II Properties Holding
LLC, a Delaware limited liability company, Braveheart II Properties Company LLC, an Ohio limited
liability company (“OP Merger Sub”), the General Partner and the Partnership (the “Merger
Agreement”) whereby REIT Merger Sub will be merged with and into the General Partner with the
result that the General Partner will become a wholly owned subsidiary of Parent and the
shareholders of the General Partner will receive the consideration described in the Merger
Agreement;



     WHEREAS, the Signing Partners would like to clarify that in connection with the Merger
Agreement, the Limited Partners may provide a contingent Notice of Redemption under the Partnership
Agreement, conditioned on closing of the transactions contemplated by the Merger Agreement and that
any redemption will not occur unless and until such condition has been met;



     WHEREAS, the Signing Partners would also like to clarify that any distribution declared or
paid after provision by a Limited Partner of a conditional Notice of Redemption as contemplated by
the foregoing recital but prior to the closing of the transactions under the Merger Agreement will
be payable to the Limited Partners notwithstanding the provision of such Notice of Redemption;



     WHEREAS, the Merger Agreement contemplates that the shareholders of the General Partner and
the Limited Partners will receive different consideration, solely as a result of indebtedness of
the Partnership to the General Partner pursuant to the Subordinated Convertible Note;



     WHEREAS, Section 9.1(c) of the Partnership Agreement prohibits disparate consideration being
paid to the shareholders of the General Partner and the Limited Partners of the Partnership in
connection with a merger or sale transaction;



     WHEREAS, pursuant to Section 11.1(d) of the Partnership Agreement, any amendment to the
Partnership Agreement that affects the operation of the Conversion Factor of the Redemption Right



 









 







requires the consent and approval of Limited Partners holding more than 66 2/3% of the Common
Percentage Interests of the Limited Partners; and



     WHEREAS, the Signing Partners hold more than 66 2/3% of the Common Percentage Interests of the
Limited Partners and desire to amend the Partnership Agreement in light of the foregoing.



     NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained
herein and for good and other valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:



Section I: Definitions




     Capitalized terms not otherwise defined in this Amendment shall have the meanings assigned to
them as set forth in the Partnership Agreement.



Section II: Amendments to Partnership Agreement




     1. Conditional Redemption Notice. The Partnership Agreement shall be amended by
adding the following to the end of the definition of “Notice of Redemption”:




“Notwithstanding anything to the contrary contained in this definition,
Section 7.4 or Exhibit D, a Notice of Redemption provided in connection
with the transactions contemplated in the Agreement and Plan of Merger
among Braveheart Investors LP, a Delaware limited partnership
(“Parent”), Braveheart II Realty (Ohio) Corp., an Ohio corporation
(“REIT Merger Sub”), Braveheart II Properties Holding LLC, a Delaware
limited liability company, Braveheart II Properties Company LLC, an
Ohio limited liability company (“OP Merger Sub”), the General Partner
and the Partnership (the “Merger Agreement”, and the transactions
contemplated therein, the “Mergers”) may be made contingent on the
effectiveness of the Mergers. If a Redeeming Partner provides such
conditional Notice of Redemption contemplated by the foregoing, the
Redeeming Partner shall note the conditional nature of the Notice of
Redemption on the form delivered to the Partnership and the copy
delivered to the General Partner.”



     2. Specified Redemption Date. The Partnership Agreement shall be amended by replacing
the definition currently provided for “Specified Redemption Date” with the following:




“‘Specified Redemption Date’ shall mean, with respect to a given
Partner, the tenth (10th) Business Day after receipt by the
General Partner of a Notice of Redemption; provided, however, that if
the General Partner combines its outstanding REIT Common Shares, no
Specified Redemption Date shall occur after the record date and prior
to the effective date of such
combination. Notwithstanding the foregoing method for establishing the
Specified Redemption Date, a Notice of Redemption given in



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contemplation of the Mergers may specify that the Specified Redemption
Date will be the Closing Date under the Merger Agreement.”



     3. Redemption Right. The Partnership Agreement shall be amended by inserting the
following in Section 7.4(a) after the sixth sentence therein:




“For purposes of clarification, the Redeeming Partner or any Assignee
of any Limited Partner who provides a Notice of Redemption in
contemplation of the Mergers shall be entitled to receive distributions
paid with respect to Common Units at or prior to the effective time
under the Merger Agreement. However, such Redeeming Partner or
Assignee shall not be entitled to receive dividends paid with respect
to REIT Common Shares at prior to the effective time of the Mergers
under the Merger Agreement.”



     4. General Partner Transfers of Interests. The Partnership Agreement shall be amended
by inserting the following at the end of Section 9.1(c):




“Notwithstanding the foregoing, the General Partner may engage in a
Transaction in which the Limited Partners receive an amount of cash,
securities or other property disparate from the greatest amount of
cash, securities or other property paid to a holder of one REIT Common
Share in consideration of one REIT Common Share as a result of the
Transaction if the sole reason for such disparate amount is the
indebtedness of the Partnership to the Company pursuant to the
Subordinated Convertible Debt.”



Section III: Miscellaneous




     1. Governing Law. This Amendment shall be construed in accordance with and governed
by the law of the State of Ohio, without reference to principles of conflict of laws.



     2. Counterparts. This Amendment may be executed in two or more counterparts, each of
which shall constitute an original, but all of which, when taken together, shall constitute but one
instrument.



     3. Full Force and Effect. Except as expressly amended by this Amendment, all other
terms, conditions, and agreements of the Partnership Agreement shall remain in full force and
effect, and the same are unmodified hereby.



[signature page follows]






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     IN WITNESS WHEREOF, the Partners have caused this Amendment to be duly executed as of the day
and year first above written.



	 	 	 	 	 
	 	 	GENERAL PARTNER:
	 
	 	 	 	 
	 	 	BOYKIN LODGING COMPANY,
	 	 	an Ohio corporation
	 
	 	 	 	 
	 

	 	By:
	 	     /s/ Richard C. Conti
	 

	 	 	 	 
	 

	 	 	 	Richard C. Conti, President
	 
	 	 	 	 
	 	 	SIGNING LIMITED PARTNERS:
	 
	 	 	 	 
	 	 	JABO LLC, a Delaware limited liability company
	 
	 	 	 	 
	 

	 	By:
	 	Boykin Management Company
	 

	 	 	 	Limited Liability Company, its
	 

	 	 	 	Managing Member
	 
	 	 	 	 
	 

	 	By:
	 	The Boykin Group, Inc., Member
	 
	 	 	 	 
	 

	 	By:
	 	/s/ Robert W. Boykin
	 

	 	 	 	 
	 

	 	 	 	Robert W. Boykin, President
	 
	 	 	 	 
	 	 	     /s/ John E. Boykin
	 	 	 
	 	 	John E. Boykin, Co-Trustee under William
	 	 	J. Boykin Trust Agreement, dated March 9, 1988
	 
	 	 	 	 
	 	 	     /s/ Robert W. Boykin
	 	 	 
	 	 	Robert W. Boykin, Co-Trustee under William
	 	 	J. Boykin Trust Agreement, dated March 9, 1999
	 
	 	 	 	 
	 	 	     /s/ John E. Boykin
	 	 	 
	 	 	John E. Boykin, Trustee under TBG
	 	 	Investments Trust Agreement, dated
	 	 	December 16, 2005






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	 	 	     /s/ John E. Boykin
	 	 	 
	 	 	John E. Boykin, Trustee under Robert W.
	 	 	Boykin 2005 Amended and Restated Revocable
	 	 	Trust Agreement, dated December 16, 2005
	 
	 	 	 	 
	 	 	     /s/ Robert W. Boykin
	 	 	 
	 	 	Robert W. Boykin, Trustee under John E.
	 	 	Boykin Investments Trust Agreement, dated
	 	 	December 16, 2005







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