EXHIBIT 10.15
SIXTH AMENDMENT TO
AMENDED AND RESTATED
AGREEMENT OF LIMITED PARTNERSHIP
OF
WESTCOAST HOSPITALITY LIMITED PARTNERSHIP
THIS AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED
PARTNERSHIP, dated as of November 1, 1997, is dated for reference purposes June
30, 2000 and is entered into by and among WestCoast Hospitality Corporation, a
Washington corporation (formerly known as Cavanaughs Hospitality Corporation and
referred to herein as ("WHC" or "General Partner"), as the General Partner and
all other signators to this document, who constitute all of the Limited Partners
of WestCoast Hospitality Limited Partnership ("Partnership"), as the Limited
Partners.
WHEREAS, the Partners have previously entered into that
certain Amended and Restated Partnership Agreement of Cavanaughs Hospitality
Limited Partnership dated as of November 1, 1997 as amended from time to time
thereafter ("Partnership Agreement"); and
WHEREAS, the Partners desire to amend the Partnership
Agreement as set forth in this document ("Sixth Amendment")
NOW, THEREFORE, that for good and adequate consideration, the
receipt of which is hereby acknowledged, the parties hereto amend each of the
following Sections of the Partnership Agreement to read as follows:
AMENDMENT TO SECTION 2.2
Section 2.2 is amended to read as follows:
Section 2.2 Name
The name of the Partnership shall be WestCoast Hospitality Limited
Partnership. The General Partner has changed its name to WestCoast Hospitality
Corporation. The term "WHC" is substituted for the term "CHC" wherever it
appears in the Partnership Agreement. Subject to the provisions of Section 7.5.C
of the Partnership Agreement as modified by the Sixth Amendment, the
Partnership's business may be conducted under any other name or names deemed
advisable by the General Partner, including the name of the General Partner, any
Affiliate or such other business names as the General Partner shall determine.
The words "Limited Partnership," "L.P.," "Ltd." or similar words or letters
shall be included in the Partnership's name where necessary for the purposes of
complying with the laws of any jurisdiction that so requires. The General
Partner in its sole and absolute discretion may change the name of the
Partnership at any time and from time to time and shall notify the Limited
Partners of such change in the next regular communication to the Limited
Partners.
Sixth Amendment 1
AMENDMENT TO SECTION 7.4.B
Section 7.4.B is amended to read as follows:
Section 7.4 Reimbursement of the General Partner
B. The General Partner shall be reimbursed on a monthly basis, or such
other basis as the General Partner may determine in its sole and absolute
discretion, for all expenses it incurs relating to the ownership and operation
of; or for the benefit of; the Partnership; provided that the amount of any such
reimbursement shall be reduced by any interest earned by the General Partner
with respect to bank accounts or other instruments or accounts held by it on
behalf of the Partnership as permitted in Section 7.5.A. WHC has the authority,
in its sole discretion, to properly designate on its tax filings and supporting
books and records that items of income, gain, loss, deduction, credit, cash flow
and indebtedness incurred pursuant to the provisions of Section 7.5.C of the
Partnership Agreement as modified by the Sixth Amendment are solely the income,
gain, loss, deduction, credit, cash flow and indebtedness of WHC rather than of
the Partnership. Except as provided in the preceding sentence, the Limited
Partners acknowledge that, for purposes of this Section 7.4.B, all of the
General Partner's expenses (including without limitation, costs and expenses
associated with compliance with the periodic reporting requirements and all
other rules and regulations of the Securities and Exchange Commission or any
other federal, state or local regulatory body, salaries payable to officers and
employees of the General Partner, fees and expenses payable to directors of the
General Partner, and all other operating of administrative costs of the General
Partner) are deemed incurred for the benefit of the Partnership and shall be
paid by or reimbursed by the Partnership as provided in this Section 7.4.B. Such
reimbursement shall be in addition to any reimbursement to the General Partner
as a result of indemnification pursuant to Section 7.7 hereof. All payments and
reimbursements hereunder will be characterized for federal income tax purposes
as expenses of the Partnership incurred on its behalf; and not expenses of the
General Partner.
Sixth Amendment 2
AMENDMENT TO SECTION 7.5.C
Section 7.5.C is amended to read as follows:
Section 7.5 Outside Activities of the General Partner
C. Notwithstanding Section 7.5.A above, the WHC shall have the right to
hold assets, conduct business and incur indebtedness in connection therewith,
with respect to certain assets that WHC believes, in its sole and absolute
discretion, cannot or should not be held by or transferred to the Partnership.
All benefits and burdens of any activities conducted in this fashion shall inure
to the benefit of the Partners only through the exercise of the Redemption Right
described in Section 8.6 of the Partnership Agreement. The items of income,
gain, loss, deduction, credit, cash flow and indebtedness designated as solely
the income, gain, loss, deduction, credit, cash flow and indebtedness of WHC
pursuant to the provisions of Section 7.4.B of the Partnership Agreement as
modified by the Sixth Amendment are not attributable to the Partnership. Except
as provided in the preceding sentence, all income, gain, loss, deduction,
credit, cash flow and indebtedness shall be considered Partnership income, gain,
loss, deduction, credit, cash flow and indebtedness.
Sixth Amendment 3
AMENDMENT TO SECTION 7.10
Section 7.10 is amended to read as follows:
Section 7.10 Title to Partnership Assets
Title to Partnership assets, whether real, personal or mixed and
whether tangible or intangible, shall be deemed to be owned by the Partnership
as an entity, and no Partner, individually or collectively, shall have any
ownership interest in such Partnership assets or any portion thereof. Title to
any or all of the Partnership assets may be held in the name of the Partnership,
the General Partner or one or more nominees, as the General Partner may
determine, including Affiliates of the General Partner. Except as provided in
Section 7.5.C of the Partnership Agreement as modified by the Sixth Amendment,
the General Partner hereby declares and warrants that any Partnership assets for
which legal title is held in the name of the General Partner or any nominee or
Affiliate of the General Partner shall be held by the General Partner for the
use and benefit of the Partnership in accordance with the provisions of this
Agreement; provided, however, that (except for assets held separately by WHC as
provided in Section 7.5.C of the Partnership Agreement as modified by the Sixth
Amendment) the General Partner shall use its best efforts to cause beneficial
and record title to such assets to be vested in the Partnership as soon as
reasonably practicable. All Partnership assets shall be recorded as the property
of the Partnership in its books and records, irrespective of the name in which
legal title to such Property assets is held.
Sixth Amendment 4
AMENDMENT TO SECTION 11.2.C
Section 11.2.C is amended to read as follows:
Section 11.2 Transfer of General Partner's Partnership Interest
C. Notwithstanding Section 11 .2.B, the General Partner may merge with
another entity if immediately after such merger substantially all of the assets
of the surviving entity (other than: (x) the assets held by WHC pursuant to
Section 7.5.C of the Partnership Agreement as modified by the Sixth Amendment;
and (y) Partnership Units held by the General Partner, whether such Partnership
Units constitute the General Partnership Interest or a Limited Partnership
Interest), are contributed to the Partnership as a Capital Contribution in
exchange for Partnership Units with a fair market value, as reasonably
determined by the General Partner, equal to the 704(c) Value of the assets so
contributed.
Sixth Amendment 5
AMENDMENT TO SECTION 13.2.A
Section 13.2.A is amended to read as follows:
Section 13.2 Winding Up
A. Upon the occurrence of a Liquidating Event, the Partnership shall
continue solely for the purposes of winding up its affairs in an orderly manner,
liquidating its assets, and satisfying the claims of its creditors and Partners.
No Partner shall take any action that is inconsistent with, or not necessary to
or appropriate for, the winding up of the Partnership's business and affairs;
provided, however, that each Limited Partners shall have a period of thirty (30)
days following notice of a Liquidating Event within which to exercise its
Redemption Right by delivery of a Notice of Redemption as described in Section
8.6 of the Partnership Agreement. The General Partner, or, in the event there is
no remaining General Partner, any Person elected by a majority in interest of
the Limited Partners (the General Partner or such other Person being referred to
herein as the "Liquidator") shall be responsible for overseeing the winding up
and dissolution of the Partnership and shall take full account of the
Partnership's liabilities and property and the Partnership property shall be
liquidated as promptly as is consistent with obtaining the fair value thereof;
and the proceeds therefrom (which may, to the extent determined by the General
Partner, include shares of stock in the General Partner) shall be applied and
distributed in the following order:
(1) First, to the payment and discharge of all of the
Partnership's debts and liabilities to creditors other than the Partners;
(2) Second, to the payment and discharge of all of the
Partnership's debts and liabilities to the General Partner;
(3) Third, to the payment and discharge of all of the
Partnership's debts and liabilities to the other Partners; and
(4) The balance, if any, to the General Partner and Limited
Partners in accordance with their Capital Accounts, after giving effect to all
contributions, distributions, and allocations for all periods.
The General Partner shall not receive any additional compensation for any
services performed pursuant to this Article 13.
SIGNATURE PAGES OF GENERAL AND LIMITED PARTNERS FOLLOW
Sixth Amendment 6
GENERAL PARTNER:
WESTCOAST HOSPITALITY CORPORATION
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx, Senior Vice President
LIMITED PARTNERS:
WESTCOAST HOSPITALITY CORPORATION XXXXXX XXXXXXX HOTEL ASSOCIATES
LIMITED PARTNERSHIP
By: Spokane Hotel, Inc., its general
partner
By: /s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx, Vice President
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx, President
NORTH RIVER DRIVE COMPANY XXXXXXXX FAMILY FOUNDATION, INC.
By: /s/ Xxxxxxx Xxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx, Vice President Xxxxxxx Xxxxxxxx, Vice President
XXXXXXX XXXXXXXX/XXXX XXX XXXXXX: XXXXXX XXXXXXXX/XXXXXX XXXXXXXX:
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxxxx
/s/ Cara Xxx Xxxxxx /s/ Xxxxxx Xxxxxxxx
------------------------------------------ ------------------------------------
Cara Xxx Xxxxxx Xxxxxx Xxxxxxxx
XXXXXX XXXXXXXX/XXXXXXX XXXXXXXX:
/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx Xxxxxxxx
Sixth Amendment 7
