Exhibit 3.6
ASSIGNMENT OF INTERESTS
AND
FOURTH AMENDMENT TO VENTURE AGREEMENT
ASSIGNMENT OF INTERESTS AND FOURTH AMENDMENT TO VENTURE
AGREEMENT ("Agreement"), dated as of _________ __, 1999, among WKA EL CON
ASSOCIATES, a New York general partnership ("WKA"), CONQUISTADOR HOLDING, INC.,
a Delaware corporation ("Holding"), WHG EL CON CORP., a Delaware corporation
("WHG El Con") and CONQUISTADOR HOLDING (SPE), INC., a Delaware corporation
("Sub").
W I T N E S S E T H:
WHEREAS, Holding and WKA are parties to that certain Venture
Agreement of El Conquistador Partnership L.P., a Delaware limited partnership
(the "Partnership"), dated January 12, 1990, as amended by (i) the First
Amendment Agreement dated May 4, 1992, (ii) the Second Amendment Agreement dated
Xxxxx 00, 0000, (xxx) the Third Amendment Agreement dated April 29, 1998 and as
heretofore amended (collectively, the "Venture Agreement"; capitalized terms
used herein and not otherwise defined shall have the same meaning ascribed to
such terms in the Venture Agreement); and
WHEREAS, the sole partners of WKA are Holding and WHG El Con;
and
WHEREAS, effective as of ___________ __, 1999 (the "Effective
Date"), WKA is assigning to its partners in complete liquidation of WKA, all of
its interests in any and all real and personal property, including, without
limitation, its interests as a general and limited partner of the Partnership by
assigning: (i) all of its interest as a General Partner in the Partnership
(representing a 15% Residual Partnership Interest) to Holding which interest
will be converted to a Class B limited Residual Partnership Interest; (ii)
33.51% of its interest as a Class B Limited Partner (representing
an 11.73% Residual Partnership Interest) to Holding; and (iii) 66.49% of its
interest as a Class B Limited Partner (representing a 23.27% Residual
Partnership Interest) to WHG El Con; and
WHEREAS, effective as of the Effective Date and immediately
after the liquidation of WKA, Holding is assigning to Sub all of its interests
as a general and limited partner of the Partnership, including the interests it
acquired in the liquidation of WKA; and
WHEREAS, the parties hereto desire to effect such assignments
and the substitution of Sub as the sole General Partner of the Partnership in
the place and stead of Holding and WKA, the substitution of Sub as the Class A
Limited Partner and Managing General Partner in the place and stead of Holding,
and the substitution of WHG El Con and Sub as the Class B Limited Partners in
the place and stead of WKA.
NOW, THEREFORE, in consideration of the premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
1. Assignment by WKA. WKA hereby confirms its assignment, as
of the Effective Date, of all of its right, title and interest in and to (i) a
15% general Residual Partnership Interest to Holding which Interest will be
converted to a Class B limited Residual Partnership Interest at such time, (ii)
an 11.73% Class B limited Residual Partnership Interest to Holding and (iii) a
23.27% Class B limited Residual Partnership Interest to WHG El Con. As of the
Effective Date, WKA hereby withdraws as a General Partner and Class B Limited
Partner. Holding and WHG El Con hereby confirm their acceptance of the foregoing
assignments, the conversion in the case of the general Residual Partnership
Interest to a Class B limited Residual Partnership Interest and the substitution
in the case of Holding as a Class B Limited Partner and in the case of WHG El
Con as a Class B Limited Partner.
2. Consent of Holding. Holding hereby consents pursuant to
ARTICLE NINE of the Venture Agreement to the assignment by WKA of its Residual
Partnership Interests, the conversion of the general Residual Partnership
Interest to a Class B limited Residual Partnership Interest and the withdrawal
of WKA as a General Partner and a Class B Limited Partner as described
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in Section 1 hereof, and the admittance of Holding and WHG El Con as Class B
Limited Partners as of the Effective Date.
3. Assignment by Holding. Holding hereby confirms its
assignment to Sub, effective immediately following the assignments described in
Section 1 hereof, of all of its right, title and interest in and to (i) a 15%
general Residual Partnership Interest, (ii) a 35% Class A limited Residual
Partnership Interest and (iii) an 26.73% Class B limited Residual Partnership
Interest. Concurrently with such assignment, Holding hereby withdraws as a
General Partner, Class A Limited Partner and Class B Limited Partner and Sub
shall be substituted in the place and stead of Holding with respect thereto. Sub
hereby confirms the acceptance of the foregoing assignments and agrees to be
substituted as the sole General Partner and as a Class A Limited Partner and
Class B Limited Partner.
4. Consent of WHG El Con. WHG El Con hereby consents pursuant
to ARTICLE NINE of the Venture Agreement to the assignment by Holding of its
Residual Partnership Interests, the withdrawal of Holding as a General Partner,
Class A Limited Partner and Class B Limited Partner as described in Section 3
hereof and the admittance of Sub as a General Partner, Class A Limited Partner
and Class B Limited Partner at the time of such assignment.
5. Reconfirmation of the Partnership. WHG El Con and Holding
hereby reconfirm the continuance of the Partnership following the assignments,
conversion and substitutions described in Section 1 hereof. WHG El Con and Sub
hereby (i) reconfirm the continuance of the Partnership following the
assignments and substitutions described in Section 3 hereof, (ii) agree that the
Partnership shall continue its existence in accordance with the Venture
Agreement, as amended hereby, and (iii) reconfirm all of the rights and
obligations of the Partners and the Partnership, all of which shall remain in
full force and effect. From and after the assignments referred to in Section 1
hereof, Holding and WHG El Con hereby release WKA from any direct or indirect
obligations under the Venture Agreement. From and after the assignments referred
to in Section 3 hereof, WHG El Con and Sub hereby release Holding from any
direct or indirect obligations under the Venture Agreement.
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6. Residual Interests. Following all of the assignments
described herein, the Residual Partnership Interests of the Partners in the
Partnership will be as follows:
General Partner Residual Partnership Interest
--------------- -----------------------------
Conquistador Holding (SPE), Inc. 15%
c/o Patriot American Hospitality, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Class B Limited Partners
------------------------
WHG El Con Corp. 23.27%
c/o Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Conquistador Holding (SPE), Inc. 26.73%
c/o Patriot American Hospitality, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Class A Limited Partner
-----------------------
Conquistador Holding (SPE), Inc. 35.00%
c/o Patriot American Hospitality, Inc.
0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
7. Change of Name. The Partnership has elected to be treated
as a Special Partnership for purposes of the tax laws of the Commonwealth of
Puerto Rico and accordingly, the name of the Partnership has been changed to El
Conquistador Partnership L.P., S.E.
8. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflicts of laws.
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9. Counterpart Signatures; Facsimiles. This Agreement may be
executed in counterparts, which will, when taken together, be deemed for all
purposes to be one and the same agreement. For all purposes, a signature
delivered by facsimile shall have the same force and effect as the original of
such signature.
IN WITNESS WHEREOF, the parties hereto have cause this
Agreement to be executed by their respective duly authorized officers or
representatives as of the date first above written.
WKA EL CON ASSOCIATES
By: WHG EL CON CORP.
By:
______________________________________
Name:
Title:
CONQUISTADOR HOLDING, INC.
By:
______________________________________
Name:
Title:
CONQUISTADOR HOLDING (SPE), INC.
By:
______________________________________
Name:
Title:
WHG EL CON CORP.
By:
______________________________________
Name:
Title:
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STATE OF )
: ss.:
COUNTY OF )
On____________ __, 1999, before me personally came ,
to me known and known to me to be the of WHG EL CON CORP., in its
capacity as a general partner of WKA EL CON ASSOCIATES, the partnership
described in and which executed the foregoing instrument, and he acknowledged
to me that he executed the same by order of the Board of Directors of WHG EL
CON CORP. and consent of the Venturers Committee of WKA EL CON ASSOCIATES.
_________________________________________
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On _____________ ___, 1999, before me personally came ,
to me known and known to me to be the of CONQUISTADOR HOLDING, INC.,
the corporation described in and which executed the foregoing instrument, and
he acknowledged to me that he executed the same by order of the Board of
Directors of such corporation.
_________________________________________
Notary Public
STATE OF )
: ss.:
COUNTY OF )
On ____________ ___, 1999, before me personally came ,
to me known and known to me to be the of CONQUISTADOR HOLDING (SPE), INC.,
the corporation described in and which executed the foregoing instrument, and
he acknowledged to me that he executed the same by order of the Board of
Directors of such corporation.
_________________________________________
Notary Public
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STATE OF )
: ss.:
COUNTY OF )
On _________ ___, 1999, before me personally came ,
to me known and known to me to be the of WHG EL CON CORP., the
corporation described in and which executed the foregoing instrument, and he
acknowledged to me that he executed the same by order of the Board of Directors
of such corporation.
_________________________________________
Notary Public
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