1
Exhibit 10.3
AMENDMENT NO. 4 TO FIRST AMENDED AND RESTATED
---------------------------------------------
AGREEMENT AND CERTIFICATE OF LIMITED PARTNERSHIP OF
---------------------------------------------------
SOUTH SEAS RESORT LIMITED PARTNERSHIP
-------------------------------------
This Amendment No. 4 to First Amended and Restated Agreement and
Certificate of Limited Partnership of South Seas Resort Limited Partnership
(this "Amendment No. 411) is entered into effective as of October I , 1997, by
and between San-Cap Resort, L.C., as general partner and South Seas Properties
Company Limited Partnership, as limited partner.
WITNESSETH
----------
WHEREAS, a limited partnership was formed under the laws of the State of
Ohio under the name of South Seas Resort Limited Partnership (the "Partnership")
pursuant to an Agreement and Certificate of Limited Partnership dated as of June
14, 1985, and filed for record with the County Recorder for Cuyahoga County,
Ohio, as Document Number 5878, Volume 47, Pages 611 to 629 (the "Agreement and
Certificate,,);
WHEREAS, the Agreement and Certificate was amended by: (i) Amendment No.
1 to Certificate of Limited Partnership of South Seas Resort Limited Partnership
dated as of June 17, 1985; (ii) Amendment No. 2 to Certificate of Limited
Partnership of South Seas Resort Limited Partnership dated as of June 27, 1985;
and (iii) Amendment No. 3 to Agreement and Certificate of Limited Partnership of
South Seas Resort Limited Partnership dated as of June 30, 1986 (said Agreement
and Certificate as so amended, being herein referred to as the "Original
Agreement");
WHEREAS, the Original Agreement was amended and restated by the certain
First Amended and Restated Agreement and Certificate of Limited Partnership
dated as of December 18, 1987, and filed for record with the County Recorder for
Cuyahoga County, Ohio, as Document Number 9402, Volume 76, Page 813 (the
"Restated Agreement");
WHEREAS, the Restated Agreement was amended by:
(i) Amendment No. I to First Amended and Restated Agreement and Certificate of
Limited Partnership dated as of December 31, 1993; (ii) Amendment No. 2 to First
Amended and Restated Agreement and Certificate of Limited Partnership dated as
of January 1, 1994; (iii) Amended and Restated Amendment No. 2 to First Amended
and Restated Agreement and Certificate of Limited Partnership of South Seas
Resort Limited Partnership, dated as of January 1, 1994, as filed with the
County Recorder of Cuyahoga County, Ohio on September 23, 1994; and (iv)
Amendment No. 3 to First Amended and Restated Agreement and Certificate of
Limited Partnership of South Seas Resort Limited Partnership, dated August 23,
1996 (said Agreement as so amended being hereafter referred to as the "Amended
Restated Agreement")
2
AGREEMENT
---------
THIS AGREEMENT is made and entered into as of the 1st day of
October, 1997, by and between South Seas Properties Company Limited Partnership,
an Ohio limited partnership ("SSPC"), and San-Cap Resort, L.C., a Florida
limited liability company ("San-Cap").
WITNESSETH:
-----------
WHEREAS, San-Cap is the general partner of, and SSPC is the
limited partner of, South Seas Resort Limited Partnership ("SSRLP"), an Ohio
limited partnership that was formed on June 14, 1985;
WHEREAS, under Section 12.2 of the Partnership Agreement,
San-Cap is entitled to receive an annual fee from SSRLP in an amount equal to
0.15% of the gross revenues of SSRLP (the "Annual General Partner Fee");
WHEREAS, in consideration of the issuance, by SSPC of 40,000
limited partnership units in SSPC, San-Cap is willing to waive its current and
future rights to the Annual General Partner Fee;
WHEREAS, in consideration of the elimination of the Annual
General Partner Fee, SSPC is willing to issue to San-Cap 40,000 limited
partnership units in SSPC.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual promises herein contained, the parties agree as follows:
3
1. San-Cap hereby waives all current and future rights to the
Annual General Partner Fee and agrees to take all action necessary to delete
Section 12.2 from the Partnership Agreement.
2. SSPC hereby agrees to issue to San-Cap Forty Thousand
(40,000) limited partnership units in SSPC.
3. This Agreement embodies the entire understanding of the
parties hereto with respect to the subject matter herein contained, and
supersedes all prior and contemporaneous agreements and understandings (whether
oral or written) relative to said subject matter, and may not be changed,
modified, terminated or discharged, except by a writing executed by all the
parties hereto.
4. This Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
5. This Agreement shall be effective as of October 1, 1997.
4
WHEREAS, the General Partner and the Limited Partner now wish to
further amend the Amended Restated Agreement to delete in its entirety Section
12.2 of the Amended Restated Agreement.
NOW, THEREFORE, the parties hereto agree that the Amended Restated Agreement is
hereby amended as follows:
1. Section 12.2 of the Amended Restated Agreement is hereby deleted in
its entirety.
2. Except as expressly set forth herein, the Amended Restated Agreement
and each and every provision thereof shall remain in full force and effect and
unmodified hereby.
3. This Amendment No. 4 shall be governed BY and construed in
accordance with the laws of the State of Ohio.
IN WITNESS WHEREOF, each of the parties hereto has executed this
Amendment No. 4 effective as of the date first written above.
GENERAL PARTNER:
SAN-C
By: /s/ Robert M. Taylor
--------------------------
Robert M. Taylor
Title: Chairman and Chief Executive Office
By: Allen G. Ten Broek
--------------------------
Title: Vice Chairman
LIMITED PARTNER:
SOUTH SEAS PROPERTIES COMPANY
LIMITIED PARTNERSHIP
By: T & T Resorts, L.C., its
general partner
By: /s/ Robert M. Taylor
--------------------------
Robert M. Taylor
Title: Manager and Chairman
-----------------------
5
IN WITNESS WHEREOF, this Agreement has been duly executed and
delivered by the parties as of the day and year first written above.
RAS1372:23630:97001:RAS-Ol.SSR
amb 10/02/97
SAN-CAP RESORT, L.C.
By: /s/ Robert M. Taylor
----------------------------------------
Robert M. Taylor
Title: Chairman and Chief Executive Officer
-------------------------------------
By: Allen G. Ten Broek
----------------------------------------
Title: Vice Chairman
-------------------------------------
SOUTH SEAS PROPERTIES COMPANY
LIMITED PARTNERSHIP
By: T & T Resorts, L.C., its
general partner
By: /s/ Robert M. Taylor
----------------------------------------
Robert M. Taylor
Title: Manager and Chairman
-------------------------------------