<PAGE> 1
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q/A
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended June 30,1997
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition from _______________ to _______________
Commission file number 1-11723
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WYNDHAM HOTEL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 75-2636072
- ---------------------------------------- ------------------
(State of other jurisdiction of (I. R. S. Employer
incorporation or organization) Identification No.)
2001 Bryan Street, Suite 2300
Dallas, Texas 75201
- ---------------------------------------- ------------------
(address of principal executive offices) (Zip Code)
(214) 863-1000
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15 (d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorten period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirement for the past 90 days.
YES X NO
----- -----
The number of shares outstanding of the issuer's common stock as of August 12,
1997: Common Stock, $.01 par value - 21,618,169 shares.
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ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) Exhibits:
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
2.1 -- Agreement and Plan of Merger (the "Merger
Agreement"), dated as of April 14, 1997, by
and between Patriot American Hospitality, Inc.
and the Company (incorporated by reference to
Exhibit Number 2.2 to Schedule 13D filed with
the Securities and Exchange Commission on April
24, 1997 on behalf of CF Securities, L.P.) The
"Disclosure Letters" referred to in the
Agreement and Plan of Merger are omitted, as
they constitute "schedules" within the meaning
of Item 601 of Regulation S-K. The Company
undertakes to furnish supplementally such
Disclosure Letters to the Commission upon
request.
3.1 -- Amended and Restated Certificate of
Incorporation of the Company (Incorporated by
reference to exhibit number 3.1 in Amendment No.
1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1,
1996).
3.2 -- Amended and Restated Bylaws of the Company
(Incorporated by reference to exhibit number 3.2
in Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 1, 1996).
4.1 -- Form of specimen certificate for the Common
Stock (Incorporated by reference to exhibit
number 4.1 in Amendment No. 2 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 14, 1996).
4.2 -- Relevant portions of Amended and Restated
Certificate of Incorporation (Reference is
hereby made to Exhibit 3.1).
22
<PAGE> 3
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.1(a) -- Management Agreement dated as of May 10,
1995 by and between Anatole Hotel Investors,
L.P. and Wyndham Hotel Company Ltd.
(Incorporated by reference to exhibit number
10.1(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.1(b) -- Form of Management Agreement dated as of
September 27, 1994 by and between Bedrock
Annapolis Investment Partners Level I, L.P. and
Wyndham Hotel Company Ltd. (together with
attachment) (Incorporated by reference to
exhibit number 10.1(b) in the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.1(c) -- Management Agreement dated as of March 10, 1988
by and between Franklin Plaza Associates and
Wyndham Hotel Company, as amended by First
Amendment dated November 17, 1993 (Incorporated
by reference to exhibit number 10.1(c) in the
Company's Registration Statement on Form S-1
(Reg. No. 333- 2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.1(d) -- Service Agreement dated as of November 17, 1993
by and between Franklin Plaza Realty Limited
Partnership and Wyndham Hotel Company Ltd.
(Incorporated by reference to exhibit number
10.1(d) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.1(e) -- Management Agreement dated as of December 1,
1984 by and between Houston Greenspoint Hotel
Associates and Wyndham Hotel Company
(Incorporated by reference to exhibit number
10.1(e) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.1(f) -- Management Agreement dated as of December 4,
1991 by and between Itasca Hotel Company and
Wyndham Hotel Company Ltd., as amended by
Amendment dated March 19, 1996 (Incorporated by
reference to exhibit number 10.1(f) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.1(g) -- Management Agreement dated as of June 30, 1994
by and between Waterfront Hotel Associates, S.E.
and Old San Juan Management, Ltd. S.E.
(Incorporated by reference to exhibit number
10.1(g) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.1(h) -- Management Agreement dated as of May 26, 1995
by and between Convention Center Boulevard
Hotel, Limited and Wyndham Hotel Company Ltd.
(Incorporated by reference to exhibit number
10.1(h) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.1(i) -- Management Agreement dated as of August 25,
1993 by and between Playhouse Square Hotel
Limited Partnership and Wyndham Hotel Company
Ltd. (Incorporated by reference to exhibit
number 10.1(i) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
23
<PAGE> 4
EXHIBIT
NUMBER DESCRIPTION
10.1(j) -- Management Agreement dated as of March 1, 1986
by and between CLC Partnership and Wyndham
Hotel Company, as amended by First Amendment
dated June 30, 1988 (Incorporated by reference
to exhibit number 10.1(j) in Amendment No. 1
to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1,
1996).
10.1(k) -- Management Agreement dated as of December 22,
1987 by and among Badger XVI Limited
Partnership, Crow Division Partners and Wyndham
Hotel Company, as amended by First Amendment
dated February 26, 1988 (Incorporated by
reference to exhibit number 10.1(k) in Amendment
No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1,
1996).
10.1(l) -- Management Agreement dated as of November 20,
1987 by and between Hotel and Convention Center
Partners I, Ltd. And Wyndham Hotel Corporation
II, Inc., as amended by Amendment dated November
1, 1993 (Incorporated by reference to exhibit
number 10.1(l) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.2 -- Investment Agreement dated as of May 2, 1994
among The Hampstead Group, Inc., Wyndham Hotel
Company Ltd., The Partners in Wyndham Hotel
Company Ltd., and Crow Family Partnership, L.P.,
as amended (Incorporated by reference to exhibit
number 10.2 in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.3(a) -- Lease dated as of April 1, 1996 by and between
Hospitality Properties Trust and Garden Hotel
Associates II Limited Partnership (Incorporated
by reference to exhibit number 10.3(a) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
10.3(b) -- Lease Agreement dated as of March 1, 1988 by and
between Lincoln Island Associates No. 1, Limited
and WHI Limited Partnership (Incorporated by
reference to exhibit number 10.3(b) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.3(c) -- Lease Agreement dated December 19, 1989 by and
between Rose Hall Hotel Limited and Rose Hall
Associates Limited Partnership (Incorporated by
reference to exhibit number 10.3(c) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.3(d) -- Sublease Agreement dated as of November 17,
1989 by and between Copley-Commerce-Telegraph
#1 Associates, as assignee of Crow-Staley-
24
<PAGE> 5
EXHIBIT
NUMBER DESCRIPTION
Commerce #1 Limited Partnership and Commerce
Hotel Partners Ltd. (Incorporated by reference
to exhibit number 10.3(d) in the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(e) -- Ground Lease dated as of March 26, 1987 by and
between Fred C. Boysen, Dorothy Boysen, Ted
Boysen and Rose Boysen and Garden Hotel
Associates Limited Partnership, as assignee of
Ramada Hotel Operating Company as amended by
First Amendment dated as of May 7, 1990
(Incorporated by reference to exhibit number
10.3(e) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.3(f) -- Lease Agreement dated as of November 26, 1990
by and between Tower 2001 Limited Partnership
and Wyndham Hotel Company Ltd., as amended by
Letter Agreement dated March 9, 1994 and Letter
Agreement dated March 22, 1995, and as amended
by Amendment No. 1 dated as of November 30, 1995
(Incorporated by reference to exhibit number
10.3(f) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.3(g) -- Lease Agreement dated as of January 1992 by and
between 475 Park Avenue South Co. and Wyndham
Hotel Company Ltd., as amended by Amendment of
Lease dated January 30, 1995 (Incorporated by
reference to exhibit number 10.3(g) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.3(h) -- Sublease dated as of May 31, 1995 between Banc
One Mortgage Corporation and Wyndham Hotels &
Resorts (Incorporated by reference to exhibit
number 10.3(h) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
March 11, 1996).
10.3(i) -- Lease Agreement dated as of May 16, 1994 by and
between Wirtz Realty Corporation, as agent for
333 Building Corporation and Wyndham Hotel
Company Ltd. (Incorporated by reference to
exhibit number 10.3(i) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.3(j) -- Lease Agreement dated as of May 18, 1994 by and
between Columbia Executive Offices, Inc. and The
Inn at Semiahmoo a Wyndham Resort (Incorporated
by reference to exhibit number 10.3(j) in
Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 1, 1996).
10.3(k) -- Lease Agreement dated as of January 8, 1997 by
and between HPTSLC Corporation and WHC Salt Lake
City Corporation (Incorporated by reference to
exhibit number 10.3(k) in the Company's
Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and
Exchange Commission on January 27, 1997.).
25
<PAGE> 6
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.4 -- Master Alliance Agreement dated as of January
9, 1997 by and among American General
Hospitality Corporation, American General
Hospitality Operating Partnership, L.P., WHC
Franchise Corporation and WHC Development
Corporation (Incorporated by reference to
exhibit number 10.4 in the Company's
Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and
Exchange Commission on January 27, 1997.).
10.5 -- Limited Guaranty Agreement dated as of January
8, 1997 made by the Company for the benefit of
HPTSLC Corporation Incorporated by reference to
exhibit number 10.5 in the Company's
Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.5(a) -- Form of Asset Management Agreement to be
entered into between the Company and various
Crow Family Real Estate Entities (Incorporated
by reference to exhibit number 10.5(a) in
Amendment No. 2 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 14, 1996).
10.6(a) -- Service Agreement, dated as of May 21, 1996,
by and between the Company and ISIS 2000 LP
(Incorporated by reference to exhibit number
10.6(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.6(b) -- Service Agreement, dated as of May 21, 1996,
by and between the Company and Wynright
Insurance (Incorporated by reference to exhibit
number 10.6(b) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507)
filed with the Securities and Exchange
Commission on January 27, 1997).
10.6(c) -- Service Agreement, dated as of May 21, 1996,
by and between the Company and CW Synergistech,
LP (Incorporated by reference to exhibit number
10.6(c) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.7 -- Indenture relating to the 10 1/2% Senior
Subordinated Notes due 2006 (Incorporated by
reference to exhibit number 10.10 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
10.8 -- Stockholders' Agreement ("Stockholders'
Agreement") among Wyndham Hotel Corporation and
the Stockholders listed on the signature pages
thereof (Incorporated by reference to exhibit
number 10.13 in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on
January 27, 1997).
10.9 -- Registration Rights Agreement among Wyndham
Hotel Corporation and the parties identified on
the signature pages thereof (Incorporated by
reference to exhibit number 10.14 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
26
<PAGE> 7
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.10(a) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and James D. Carreker
(Incorporated by reference to exhibit number
10.15(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(b) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Anne L. Raymond
(Incorporated by reference to exhibit number
10.15(b) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(c) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Harlan R. Crow
(Incorporated by reference to exhibit number
10.15(c) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(d) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Daniel A. Decker
(Incorporated by reference to exhibit number
10.15(d) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(e) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Susan T.
Groenteman (Incorporated by reference to exhibit
number 10.15(e) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on
January 27, 1997).
10.10(f) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Stanley M. Koonce,
Jr. (Incorporated by reference to exhibit number
10.15(f) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(g) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Leslie V. Bentley
(Incorporated by reference to exhibit number
10.15(g) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(h) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Robert A. Whitman
(Incorporated by reference to exhibit number
10.15(h) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.11(a) -- 6% Promissory Note made by James D. Carreker
(Incorporated by reference to exhibit number
10.16(a) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(b) -- 6% Promissory Note made by Leslie V. Bentley
(Incorporated by reference to exhibit number
10.16(b) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(c) -- 6% Promissory Note made by Eric A. Danziger
(Incorporated by reference to exhibit number
10.16(c) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
27
<PAGE> 8
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.11(d) -- 6% Promissory Note made by Anne L. Raymond
(Incorporated by reference to exhibit number
10.16(d) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(e) -- 6% Promissory Note made by Stanley M. Koonce,
Jr. (Incorporated by reference to exhibit number
10.16(e) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(f) -- 6% Promissory Note made by Wyndham Employees
Ltd. (Incorporated by reference to exhibit
number 10.16(f) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.12 -- Stockholders' Agreement Consent dated
September 30, 1996.
10.13(a) -- Wyndham Employees Savings & Retirement Plan
(Incorporated by reference to exhibit number
10.19(a) in Amendment No. 2 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 14, 1996).
10.13(b) -- Wyndham Hotel Corporation 1996 Long Term
Incentive Plan, as revised (Incorporated by
reference to exhibit number 10.19(b) in
Amendment No. 3 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 20, 1996).
10.13(c) -- Non-Employee Directors' Retainer Stock Plan, as
revised (Incorporated by reference to exhibit
number 10.19(c) in Amendment No. 3 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 20, 1996).
10.14 -- Operating Deficit Guaranty and Reserves
Agreement dated as of August 25, 1993 by and
among Playhouse Square Hotel Limited
Partnership, Society National Bank and the
Lenders (Incorporated by reference to exhibit
number 10.22 in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.15 -- Registration Rights Agreement dated as of
September 30, 1996 between the Company and Smith
Barney, Inc. (Incorporated by reference to
exhibit No. 10.15 to the Company's Annual
Report on Form 10-K for the year ended December
31, 1996, is filed with the Securities and
Exchange Commission on March 27, 1997).
10.16 -- Registration Rights Agreement dated as of April
29, 1996 between the Company and General
Electric Investment Corporation (Incorporated
by reference to exhibit No. 10.16 to the
Company's Annual Report on Form 10-K for the
year ended December 31, 1996, is filed with the
Securities and Exchange Commission on March 27,
1997).
10.17 -- Promissory Note dated April 15, 1995 between
the Company and WFLP (Incorporated by reference
to exhibit No. 10.17 to the Company's Annual
Report on Form 10-K for the year ended December
31, 1996, is filed with the Securities and
Exchange Commission on March 27, 1997).
10.18 -- Computerized Reservation Service Agreement
between ISIS 2000 and the Company (Incorporated
by reference to exhibit number 10.28 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
28
<PAGE> 9
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.19 -- Indemnification Agreements by and between
Elise Turner as an Officer of GHMB, Inc.; MBAH,
Inc.; CHMB, Inc.; Waterfront Management
Corporation; PSMB, Inc.; MTMB, Inc.; MDMB, Inc.;
AMMB, Inc.; OHMB, Inc.; WNMB, Inc.; MBWD, Inc.;
MBWH, Inc.; and BHMB, Inc., which Corporations
are the Holders of Liquor Licenses, and Wyndham
Management Corporation (Incorporated by
reference to exhibit number 10.29 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
10.20 -- Senior Secured Revolving Credit Agreement (the
"Credit Agreement") among Wyndham Hotel
Corporation, The Lenders Party Thereto and
Bankers Trust Company (incorporated by reference
to the Company's Quarterly Report on Form 10-Q
for the Quarter Ended June 30, 1996).
10.21 -- Management Contract between Homegate
Hospitality, Inc. and the Company, dated August
26, 1996 (incorporated by reference to Exhibit
No. 10.1 of the Company's Quarterly Report on
Form 10-Q for the Quarter ended September 30,
1996).
10.22 -- Proxy Agreement, dated as of April 14, 1997,
by and between Patriot American Hospitality,
Inc. and CF Securities, L.P., James D. Carreker,
Leslie V. Bentley, Anne L. Raymond, Stanley M.
Koonce, Jr. And the Company (incorporated by
reference to Exhibit Number 10.1 to Schedule 13D
filed with the Securities and Exchange
Commission on April 24, 1997 on behalf of CF
Securities, L.P.).
10.23 -- Asset Management Agreements between Wyndham
Hotel Corporation and Playhouse Square Hotel
L.P. and the other Parties Listed on Schedule A
attached thereto (incorporated by reference to
Exhibit Number 10.23 in the Company's Quarterly
Report on Form 10-Q for the Quarter ended March
31, 1997).
10.24 -- Indemnification Agreements between the Company
and Susan R. Bolger and the other Parties Listed
on Schedule A attached thereto (incorporated by
reference to Exhibit Number 10.24 in the
Company's Quarterly Report on Form 10-Q for the
Quarter ended March 31, 1997).
10.25 -- Capital Contribution Note dated as of December
22, 1995 by and between Pleasanton Hotel
Partners, L.P. and the Company (Incorporated by
reference to Exhibit Number 10.18(a) in
Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 1, 1996).
10.26 -- Capital Contribution Note dated as of October
2, 1995 by and between WHC- LG Hotel Partners
and the Company (Incorporated by reference to
Exhibit Number 10.18(b) in Amendment No. 1 to
the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996)
10.27 -- Capital Contribution Note dated as of May 26,
1995 by and between New Orleans Hotel I, L.P.
and the Company (Incorporated by reference to
Exhibit No. 10.18(c) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.28 -- FF&E Contract, dated June 30, 1994, by and
between Wyndham Hotel Company Ltd. and
Waterfront Hotel Associates, S.E., as amended
(incorporated by reference to Exhibit Number
10.28 in the Company's Quarterly Report on Form
10-Q for the Quarter ended March 31, 1997).
29
<PAGE> 10
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.29 -- FF&E and Technical Services Contract, dated May
26, 1995, by and between Wyndham Hotel Company
Ltd. And Convention Center Boulevard Hotel,
Limited (incorporated by reference to Exhibit
Number 10.29 in the Company's Quarterly Report
on Form 10-Q for the Quarter ended March 31,
1997).
10.30 -- Corporate Guaranty Agreements by Wyndham Hotel
Corporation on behalf of ISIS 2000 Limited
Partnership for the benefit of Banc One Leasing
Corporation, including Master Agreement and
Schedule of Additional Guaranty Agreements
(incorporated by reference to Exhibit Number
10.30 in the Company's Quarterly Report on Form
10-Q/A for the Quarter ended March 31, 1997).
10.31 -- Guarantor Agreement, dated May 26, 1995 by and
among Convention Center Boulevard Hotel, Ltd.,
the Company, Darryl D. Berger and Roger H. Ogden
(incorporated by reference to Exhibit Number
10.31 in the Company's Quarterly Report on Form
10-Q for the Quarter ended March 31, 1997).
10.32 -- Corporate Guaranty Agreement, dated May 15,
1996, by Wyndham Hotel Corporation on behalf of
ISIS 2000 Limited Partnership for the benefit of
IBM Credit Corporation (incorporated by
reference to Exhibit Number 10.32 in the
Company's Quarterly Report on Form 10-Q for
the Quarter ended March 31, 1997).
10.33* -- First Amendment to Senior Secured Revolving
Credit Agreement, dated as of July 30, 1997,
between Wyndham Hotel Corporation, the Financial
Institutions party to the Credit Agreement and
Bankers Trust Company.
10.34 -- Agreement Regarding Termination of Management
Agreements, dated as of July 25, 1997, between
Homegate Hospitality, Inc., VPS I, L.P., Prime
Hospitality Corp., Crow Realty Investors, L.P.
and Wyndham Management Corporation, Wyndham
Hotel Corporation and Wyndham IP Corporation
(including related Promissory Note).
10.35 -- Form of Registration Rights Agreement by and
between Patriot American Hospitality, Inc.,
Patriot American Hospitality Operating Company
and each of the parties signatory thereto.
10.36 -- Ratification Agreement between Patriot American
Hospitality, Inc. and Wyndham Hotel
Corporation.
10.37 -- Ratification Agreement between Patriot American
Hospitality Operating Company, formerly known
as Bay Meadows Operating Company, Patriot
American Hospitality, Inc. and C.F. Securities,
L.P.
10.38 -- Form of Cooperation Agreement between Patriot
American Hospitality, Inc. and Patriot American
Hospitality Operating Company.
10.39 -- Form of Subscription Agreement between Wyndham
Hotel Corporation and Patriot American
Hospitality Operating Company.
10.40 -- Letter Agreement, dated April 14, 1997, among
Wyndham Hotel Corporation, C.F. Securities L.P.
and TCF Hotels, L.P. with respect to the Merger
Agreement, the Stock Purchase Agreement and the
Omnibus Purchase and Sale Agreement.
11* -- Computation of Earnings Per Share.
27.1* -- Financial Data Schedule.
* Previously filed.
(b) Reports on Form 8-K: None.
30
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
WYNDHAM HOTEL
CORPORATION
------------------------------------------
(Registrant)
Date: August 29, 1997 By: /S/ James D. Carreker
-------------------------
James D. Carreker
President and Chief Executive Officer
Date: August 29, 1997 By: /S/ Anne L. Raymond
-------------------------
Anne L. Raymond
Chief Financial Officer, Executive
Vice President and Director (Principal
Financial Officer)
31
<PAGE> 12
INDEX TO EXHIBITS
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
2.1 -- Agreement and Plan of Merger (the "Merger
Agreement"), dated as of April 14, 1997, by
and between Patriot American Hospitality, Inc.
and the Company (incorporated by reference to
Exhibit Number 2.2 to Schedule 13D filed with
the Securities and Exchange Commission on April
24, 1997 on behalf of CF Securities, L.P.) The
"Disclosure Letters" referred to in the
Agreement and Plan of Merger are omitted, as
they constitute "schedules" within the meaning
of Item 601 of Regulation S-K. The Company
undertakes to furnish supplementally such
Disclosure Letters to the Commission upon
request.
3.1 -- Amended and Restated Certificate of
Incorporation of the Company (Incorporated by
reference to exhibit number 3.1 in Amendment No.
1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1,
1996).
3.2 -- Amended and Restated Bylaws of the Company
(Incorporated by reference to exhibit number 3.2
in Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 1, 1996).
4.1 -- Form of specimen certificate for the Common
Stock (Incorporated by reference to exhibit
number 4.1 in Amendment No. 2 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 14, 1996).
4.2 -- Relevant portions of Amended and Restated
Certificate of Incorporation (Reference is
hereby made to Exhibit 3.1).
<PAGE> 13
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.1(a) -- Management Agreement dated as of May 10,
1995 by and between Anatole Hotel Investors,
L.P. and Wyndham Hotel Company Ltd.
(Incorporated by reference to exhibit number
10.1(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.1(b) -- Form of Management Agreement dated as of
September 27, 1994 by and between Bedrock
Annapolis Investment Partners Level I, L.P. and
Wyndham Hotel Company Ltd. (together with
attachment) (Incorporated by reference to
exhibit number 10.1(b) in the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.1(c) -- Management Agreement dated as of March 10, 1988
by and between Franklin Plaza Associates and
Wyndham Hotel Company, as amended by First
Amendment dated November 17, 1993 (Incorporated
by reference to exhibit number 10.1(c) in the
Company's Registration Statement on Form S-1
(Reg. No. 333- 2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.1(d) -- Service Agreement dated as of November 17, 1993
by and between Franklin Plaza Realty Limited
Partnership and Wyndham Hotel Company Ltd.
(Incorporated by reference to exhibit number
10.1(d) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.1(e) -- Management Agreement dated as of December 1,
1984 by and between Houston Greenspoint Hotel
Associates and Wyndham Hotel Company
(Incorporated by reference to exhibit number
10.1(e) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.1(f) -- Management Agreement dated as of December 4,
1991 by and between Itasca Hotel Company and
Wyndham Hotel Company Ltd., as amended by
Amendment dated March 19, 1996 (Incorporated by
reference to exhibit number 10.1(f) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.1(g) -- Management Agreement dated as of June 30, 1994
by and between Waterfront Hotel Associates, S.E.
and Old San Juan Management, Ltd. S.E.
(Incorporated by reference to exhibit number
10.1(g) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.1(h) -- Management Agreement dated as of May 26, 1995
by and between Convention Center Boulevard
Hotel, Limited and Wyndham Hotel Company Ltd.
(Incorporated by reference to exhibit number
10.1(h) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.1(i) -- Management Agreement dated as of August 25,
1993 by and between Playhouse Square Hotel
Limited Partnership and Wyndham Hotel Company
Ltd. (Incorporated by reference to exhibit
number 10.1(i) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
<PAGE> 14
EXHIBIT
NUMBER DESCRIPTION
10.1(j) -- Management Agreement dated as of March 1, 1986
by and between CLC Partnership and Wyndham
Hotel Company, as amended by First Amendment
dated June 30, 1988 (Incorporated by reference
to exhibit number 10.1(j) in Amendment No. 1
to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1,
1996).
10.1(k) -- Management Agreement dated as of December 22,
1987 by and among Badger XVI Limited
Partnership, Crow Division Partners and Wyndham
Hotel Company, as amended by First Amendment
dated February 26, 1988 (Incorporated by
reference to exhibit number 10.1(k) in Amendment
No. 1 to the Company's Registration Statement on
Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on May 1,
1996).
10.1(l) -- Management Agreement dated as of November 20,
1987 by and between Hotel and Convention Center
Partners I, Ltd. And Wyndham Hotel Corporation
II, Inc., as amended by Amendment dated November
1, 1993 (Incorporated by reference to exhibit
number 10.1(l) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.2 -- Investment Agreement dated as of May 2, 1994
among The Hampstead Group, Inc., Wyndham Hotel
Company Ltd., The Partners in Wyndham Hotel
Company Ltd., and Crow Family Partnership, L.P.,
as amended (Incorporated by reference to exhibit
number 10.2 in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.3(a) -- Lease dated as of April 1, 1996 by and between
Hospitality Properties Trust and Garden Hotel
Associates II Limited Partnership (Incorporated
by reference to exhibit number 10.3(a) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
10.3(b) -- Lease Agreement dated as of March 1, 1988 by and
between Lincoln Island Associates No. 1, Limited
and WHI Limited Partnership (Incorporated by
reference to exhibit number 10.3(b) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.3(c) -- Lease Agreement dated December 19, 1989 by and
between Rose Hall Hotel Limited and Rose Hall
Associates Limited Partnership (Incorporated by
reference to exhibit number 10.3(c) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.3(d) -- Sublease Agreement dated as of November 17,
1989 by and between Copley-Commerce-Telegraph
#1 Associates, as assignee of Crow-Staley-
<PAGE> 15
EXHIBIT
NUMBER DESCRIPTION
Commerce #1 Limited Partnership and Commerce
Hotel Partners Ltd. (Incorporated by reference
to exhibit number 10.3(d) in the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on March 11, 1996).
10.3(e) -- Ground Lease dated as of March 26, 1987 by and
between Fred C. Boysen, Dorothy Boysen, Ted
Boysen and Rose Boysen and Garden Hotel
Associates Limited Partnership, as assignee of
Ramada Hotel Operating Company as amended by
First Amendment dated as of May 7, 1990
(Incorporated by reference to exhibit number
10.3(e) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.3(f) -- Lease Agreement dated as of November 26, 1990
by and between Tower 2001 Limited Partnership
and Wyndham Hotel Company Ltd., as amended by
Letter Agreement dated March 9, 1994 and Letter
Agreement dated March 22, 1995, and as amended
by Amendment No. 1 dated as of November 30, 1995
(Incorporated by reference to exhibit number
10.3(f) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-2214) filed with the
Securities and Exchange Commission on March 11,
1996).
10.3(g) -- Lease Agreement dated as of January 1992 by and
between 475 Park Avenue South Co. and Wyndham
Hotel Company Ltd., as amended by Amendment of
Lease dated January 30, 1995 (Incorporated by
reference to exhibit number 10.3(g) in the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on March 11, 1996).
10.3(h) -- Sublease dated as of May 31, 1995 between Banc
One Mortgage Corporation and Wyndham Hotels &
Resorts (Incorporated by reference to exhibit
number 10.3(h) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
March 11, 1996).
10.3(i) -- Lease Agreement dated as of May 16, 1994 by and
between Wirtz Realty Corporation, as agent for
333 Building Corporation and Wyndham Hotel
Company Ltd. (Incorporated by reference to
exhibit number 10.3(i) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.3(j) -- Lease Agreement dated as of May 18, 1994 by and
between Columbia Executive Offices, Inc. and The
Inn at Semiahmoo a Wyndham Resort (Incorporated
by reference to exhibit number 10.3(j) in
Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 1, 1996).
10.3(k) -- Lease Agreement dated as of January 8, 1997 by
and between HPTSLC Corporation and WHC Salt Lake
City Corporation (Incorporated by reference to
exhibit number 10.3(k) in the Company's
Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and
Exchange Commission on January 27, 1997.).
<PAGE> 16
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.4 -- Master Alliance Agreement dated as of January
9, 1997 by and among American General
Hospitality Corporation, American General
Hospitality Operating Partnership, L.P., WHC
Franchise Corporation and WHC Development
Corporation (Incorporated by reference to
exhibit number 10.4 in the Company's
Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and
Exchange Commission on January 27, 1997.).
10.5 -- Limited Guaranty Agreement dated as of January
8, 1997 made by the Company for the benefit of
HPTSLC Corporation Incorporated by reference to
exhibit number 10.5 in the Company's
Registration Statement on Form S-1 (Reg. No.
333-18507) filed with the Securities and
Exchange Commission on January 27, 1997).
10.5(a) -- Form of Asset Management Agreement to be
entered into between the Company and various
Crow Family Real Estate Entities (Incorporated
by reference to exhibit number 10.5(a) in
Amendment No. 2 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 14, 1996).
10.6(a) -- Service Agreement, dated as of May 21, 1996,
by and between the Company and ISIS 2000 LP
(Incorporated by reference to exhibit number
10.6(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.6(b) -- Service Agreement, dated as of May 21, 1996,
by and between the Company and Wynright
Insurance (Incorporated by reference to exhibit
number 10.6(b) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507)
filed with the Securities and Exchange
Commission on January 27, 1997).
10.6(c) -- Service Agreement, dated as of May 21, 1996,
by and between the Company and CW Synergistech,
LP (Incorporated by reference to exhibit number
10.6(c) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.7 -- Indenture relating to the 10 1/2% Senior
Subordinated Notes due 2006 (Incorporated by
reference to exhibit number 10.10 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
10.8 -- Stockholders' Agreement ("Stockholders'
Agreement") among Wyndham Hotel Corporation and
the Stockholders listed on the signature pages
thereof (Incorporated by reference to exhibit
number 10.13 in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on
January 27, 1997).
10.9 -- Registration Rights Agreement among Wyndham
Hotel Corporation and the parties identified on
the signature pages thereof (Incorporated by
reference to exhibit number 10.14 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
<PAGE> 17
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.10(a) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and James D. Carreker
(Incorporated by reference to exhibit number
10.15(a) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(b) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Anne L. Raymond
(Incorporated by reference to exhibit number
10.15(b) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(c) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Harlan R. Crow
(Incorporated by reference to exhibit number
10.15(c) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(d) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Daniel A. Decker
(Incorporated by reference to exhibit number
10.15(d) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(e) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Susan T.
Groenteman (Incorporated by reference to exhibit
number 10.15(e) in the Company's Registration
Statement on Form S-1 (Reg. No. 333-18507) filed
with the Securities and Exchange Commission on
January 27, 1997).
10.10(f) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Stanley M. Koonce,
Jr. (Incorporated by reference to exhibit number
10.15(f) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(g) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Leslie V. Bentley
(Incorporated by reference to exhibit number
10.15(g) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.10(h) -- Indemnification Agreement by and between
Wyndham Hotel Corporation and Robert A. Whitman
(Incorporated by reference to exhibit number
10.15(h) in the Company's Registration Statement
on Form S-1 (Reg. No. 333-18507) filed with the
Securities and Exchange Commission on January
27, 1997).
10.11(a) -- 6% Promissory Note made by James D. Carreker
(Incorporated by reference to exhibit number
10.16(a) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(b) -- 6% Promissory Note made by Leslie V. Bentley
(Incorporated by reference to exhibit number
10.16(b) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(c) -- 6% Promissory Note made by Eric A. Danziger
(Incorporated by reference to exhibit number
10.16(c) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
<PAGE> 18
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.11(d) -- 6% Promissory Note made by Anne L. Raymond
(Incorporated by reference to exhibit number
10.16(d) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(e) -- 6% Promissory Note made by Stanley M. Koonce,
Jr. (Incorporated by reference to exhibit number
10.16(e) in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.11(f) -- 6% Promissory Note made by Wyndham Employees
Ltd. (Incorporated by reference to exhibit
number 10.16(f) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.12 -- Stockholders' Agreement Consent dated
September 30, 1996.
10.13(a) -- Wyndham Employees Savings & Retirement Plan
(Incorporated by reference to exhibit number
10.19(a) in Amendment No. 2 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 14, 1996).
10.13(b) -- Wyndham Hotel Corporation 1996 Long Term
Incentive Plan, as revised (Incorporated by
reference to exhibit number 10.19(b) in
Amendment No. 3 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 20, 1996).
10.13(c) -- Non-Employee Directors' Retainer Stock Plan, as
revised (Incorporated by reference to exhibit
number 10.19(c) in Amendment No. 3 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 20, 1996).
10.14 -- Operating Deficit Guaranty and Reserves
Agreement dated as of August 25, 1993 by and
among Playhouse Square Hotel Limited
Partnership, Society National Bank and the
Lenders (Incorporated by reference to exhibit
number 10.22 in Amendment No. 1 to the Company's
Registration Statement on Form S-1 (Reg. No.
333-2214) filed with the Securities and Exchange
Commission on May 1, 1996).
10.15 -- Registration Rights Agreement dated as of
September 30, 1996 between the Company and Smith
Barney, Inc. (Incorporated by reference to
exhibit No. 10.15 to the Company's Annual
Report on Form 10-K for the year ended December
31, 1996, is filed with the Securities and
Exchange Commission on March 27, 1997).
10.16 -- Registration Rights Agreement dated as of April
29, 1996 between the Company and General
Electric Investment Corporation (Incorporated
by reference to exhibit No. 10.16 to the
Company's Annual Report on Form 10-K for the
year ended December 31, 1996, is filed with the
Securities and Exchange Commission on March 27,
1997).
10.17 -- Promissory Note dated April 15, 1995 between
the Company and WFLP (Incorporated by reference
to exhibit No. 10.17 to the Company's Annual
Report on Form 10-K for the year ended December
31, 1996, is filed with the Securities and
Exchange Commission on March 27, 1997).
10.18 -- Computerized Reservation Service Agreement
between ISIS 2000 and the Company (Incorporated
by reference to exhibit number 10.28 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
<PAGE> 19
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.19 -- Indemnification Agreements by and between
Elise Turner as an Officer of GHMB, Inc.; MBAH,
Inc.; CHMB, Inc.; Waterfront Management
Corporation; PSMB, Inc.; MTMB, Inc.; MDMB, Inc.;
AMMB, Inc.; OHMB, Inc.; WNMB, Inc.; MBWD, Inc.;
MBWH, Inc.; and BHMB, Inc., which Corporations
are the Holders of Liquor Licenses, and Wyndham
Management Corporation (Incorporated by
reference to exhibit number 10.29 in the
Company's Registration Statement on Form S-1
(Reg. No. 333-18507) filed with the Securities
and Exchange Commission on January 27, 1997).
10.20 -- Senior Secured Revolving Credit Agreement (the
"Credit Agreement") among Wyndham Hotel
Corporation, The Lenders Party Thereto and
Bankers Trust Company (incorporated by reference
to the Company's Quarterly Report on Form 10-Q
for the Quarter Ended June 30, 1996).
10.21 -- Management Contract between Homegate
Hospitality, Inc. and the Company, dated August
26, 1996 (incorporated by reference to Exhibit
No. 10.1 of the Company's Quarterly Report on
Form 10-Q for the Quarter ended September 30,
1996).
10.22 -- Proxy Agreement, dated as of April 14, 1997,
by and between Patriot American Hospitality,
Inc. and CF Securities, L.P., James D. Carreker,
Leslie V. Bentley, Anne L. Raymond, Stanley M.
Koonce, Jr. And the Company (incorporated by
reference to Exhibit Number 10.1 to Schedule 13D
filed with the Securities and Exchange
Commission on April 24, 1997 on behalf of CF
Securities, L.P.).
10.23 -- Asset Management Agreements between Wyndham
Hotel Corporation and Playhouse Square Hotel
L.P. and the other Parties Listed on Schedule A
attached thereto (incorporated by reference to
Exhibit Number 10.23 in the Company's Quarterly
Report on Form 10-Q for the Quarter ended March
31, 1997).
10.24 -- Indemnification Agreements between the Company
and Susan R. Bolger and the other Parties Listed
on Schedule A attached thereto (incorporated by
reference to Exhibit Number 10.24 in the
Company's Quarterly Report on Form 10-Q for the
Quarter ended March 31, 1997).
10.25 -- Capital Contribution Note dated as of December
22, 1995 by and between Pleasanton Hotel
Partners, L.P. and the Company (Incorporated by
reference to Exhibit Number 10.18(a) in
Amendment No. 1 to the Company's Registration
Statement on Form S-1 (Reg. No. 333-2214) filed
with the Securities and Exchange Commission on
May 1, 1996).
10.26 -- Capital Contribution Note dated as of October
2, 1995 by and between WHC- LG Hotel Partners
and the Company (Incorporated by reference to
Exhibit Number 10.18(b) in Amendment No. 1 to
the Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996)
10.27 -- Capital Contribution Note dated as of May 26,
1995 by and between New Orleans Hotel I, L.P.
and the Company (Incorporated by reference to
Exhibit No. 10.18(c) in Amendment No. 1 to the
Company's Registration Statement on Form S-1
(Reg. No. 333-2214) filed with the Securities
and Exchange Commission on May 1, 1996).
10.28 -- FF&E Contract, dated June 30, 1994, by and
between Wyndham Hotel Company Ltd. and
Waterfront Hotel Associates, S.E., as amended
(incorporated by reference to Exhibit Number
10.28 in the Company's Quarterly Report on Form
10-Q for the Quarter ended March 31, 1997).
<PAGE> 20
EXHIBIT EXHIBIT
NUMBER DESCRIPTION
10.29 -- FF&E and Technical Services Contract, dated May
26, 1995, by and between Wyndham Hotel Company
Ltd. And Convention Center Boulevard Hotel,
Limited (incorporated by reference to Exhibit
Number 10.29 in the Company's Quarterly Report
on Form 10-Q for the Quarter ended March 31,
1997).
10.30 -- Corporate Guaranty Agreements by Wyndham Hotel
Corporation on behalf of ISIS 2000 Limited
Partnership for the benefit of Banc One Leasing
Corporation, including Master Agreement and
Schedule of Additional Guaranty Agreements
(incorporated by reference to Exhibit Number
10.30 in the Company's Quarterly Report on Form
10-Q/A for the Quarter ended March 31, 1997).
10.31 -- Guarantor Agreement, dated May 26, 1995 by and
among Convention Center Boulevard Hotel, Ltd.,
the Company, Darryl D. Berger and Roger H. Ogden
(incorporated by reference to Exhibit Number
10.31 in the Company's Quarterly Report on Form
10-Q for the Quarter ended March 31, 1997).
10.32 -- Corporate Guaranty Agreement, dated May 15,
1996, by Wyndham Hotel Corporation on behalf of
ISIS 2000 Limited Partnership for the benefit of
IBM Credit Corporation (incorporated by
reference to Exhibit Number 10.32 in the
Company's Quarterly Report on Form 10-Q for
the Quarter ended March 31, 1997).
10.33* -- First Amendment to Senior Secured Revolving
Credit Agreement, dated as of July 30, 1997,
between Wyndham Hotel Corporation, the Financial
Institutions party to the Credit Agreement and
Bankers Trust Company.
10.34 -- Agreement Regarding Termination of Management
Agreements, dated as of July 25, 1997, between
Homegate Hospitality, Inc., VPS I, L.P., Prime
Hospitality Corp., Crow Realty Investors, L.P.
and Wyndham Management Corporation, Wyndham
Hotel Corporation and Wyndham IP Corporation
(including related Promissory Note).
10.35 -- Form of Registration Rights Agreement by and
between Patriot American Hospitality, Inc.,
Patriot American Hospitality Operating Company
and each of the parties signatory thereto.
10.36 -- Ratification Agreement between Patriot American
Hospitality, Inc. and Wyndham Hotel
Corporation.
10.37 -- Ratification Agreement between Patriot American
Hospitality Operating Company, formerly known
as Bay Meadows Operating Company, Patriot
American Hospitality, Inc. and C.F. Securities,
L.P.
10.38 -- Form of Cooperation Agreement between Patriot
American Hospitality, Inc. and Patriot American
Hospitality Operating Company.
10.39 -- Form of Subscription Agreement between Wyndham
Hotel Corporation and Patriot American
Hospitality Operating Company.
10.40 -- Letter Agreement, dated April 14, 1997, among
Wyndham Hotel Corporation, C.F. Securities L.P.
and TCF Hotels, L.P. with respect to the Merger
Agreement, the Stock Purchase Agreement and the
Omnibus Purchase and Sale Agreement.
11* -- Computation of Earnings Per Share.
27.1* -- Financial Data Schedule.
* Previously filed.
<PAGE> 1
EXHIBIT 10.34
AGREEMENT REGARDING TERMINATION
OF MANAGEMENT AGREEMENTS
This Agreement Regarding Termination of Management Agreements (this
"AGREEMENT") is entered into as of July 25, 1997, between HOMEGATE HOSPITALITY,
INC., a Delaware corporation ("HOMEGATE"), and VPS I, L.P., a Delaware limited
partnership ("VPS"); PRIME HOSPITALITY CORP., a Delaware corporation ("PRIME");
CROW HOTEL REALTY INVESTORS, L.P., a Texas limited partnership ("CHRI"); and
WYNDHAM MANAGEMENT CORPORATION, a Delaware corporation ("MANAGER"), WYNDHAM
HOTEL CORPORATION, a Delaware corporation ("WHC"), and WYNDHAM IP CORPORATION,
a Delaware corporation ("IP"). Manager, WHC, IP and their respective affiliates
are herein collectively called the "WYNDHAM PARTIES." Homegate, VPS and their
respective affiliates are herein collectively called the "HOMEGATE PARTIES."
Prime and its affiliates are herein collectively called the "PRIME PARTIES."
For purposes of this Agreement, an "AFFILIATE" of a party shall be an entity in
which the party in question, directly or indirectly, owns more than 30% of the
voting or economic interests therein.
RECITALS
A. Representatives of Homegate have had discussions with representatives
of the Wyndham Parties regarding a loan from IP to Homegate and certain
amendments to the Extended-Stay Management Assistance Agreement dated as of
August 26, 1996, between Homegate, which succeeded to the interests of Extended
Stay Limited Partnership, and Manager (the "MANAGEMENT ASSISTANCE AGREEMENT")
and to all management agreements now and hereafter executed in connection
therewith (collectively, the "MANAGEMENT AGREEMENTS"), including, without
limitation, the management agreements set forth on Schedule 1 hereto. The
proposed loan and proposed amendments are herein called the "PROPOSED
TRANSACTIONS."
B. Homegate has entered into an Agreement and Plan of Merger dated as of
July 25, 1997 (as such agreement may be amended from time to time, the "MERGER
AGREEMENT"), with Prime.
C. A dispute has arisen between the Homegate Parties and the Wyndham
Parties as to whether an agreement was reached regarding the Proposed
Transactions. The parties desire to enter into this Agreement to resolve such
dispute, without admitting any wrongdoing or liability on any party's part, and
to settle other matters.
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AGREEMENT
For valuable consideration, whose receipt and sufficiency are
acknowledged, CHRI, the Homegate Parties, the Prime Parties, and the Wyndham
Parties agree as follows:
1. TERMINATION.
(a) TERMINATION. Notwithstanding anything contained in the Management
Related Agreements (defined below) to the contrary, Homegate (on behalf of
itself and all other Homegate Parties) or Manager (on behalf of itself and all
other Wyndham Parties) may terminate the Management Related Agreements upon the
consummation of the merger contemplated by the Merger Agreement (the "MERGER"),
by delivering to the other party (with a copy to CHRI) written notice thereof
at least five business days before the termination date specified therein (the
"TERMINATION DATE"). The Termination Date shall not be sooner than the date the
Merger is consummated nor later than 30 days after the date the Merger is
consummated. Except as provided in this Section 1, neither the Homegate Parties
nor the Wyndham Parties may terminate the Management Related Agreements solely
because of the Merger. "MANAGEMENT RELATED AGREEMENTS" means the Management
Assistance Agreement, the Management Agreements, and all other agreements under
which a Wyndham Party now or hereafter provides services to a Homegate Party,
including, without limitation, any MIS service agreements, any purchasing
agreements and any technical services agreements.
(b) SETTLEMENT FEE. If the Management Related Agreements are terminated
as provided in Section 1.(a), then Manager shall be paid $12,000,000 (the
"SETTLEMENT FEE") in the following manner:
(1) $8,000,000, which shall be payable in cash by Homegate or Prime
by making payment directly to WHC or its Permitted Assigns (defined below),
which shall thereafter distribute such cash to the Wyndham Parties or other
persons in a manner agreed upon by such parties.
(2) $4,000,000, which shall be payable pursuant to a Promissory Note
whose form is attached as Exhibit A, executed by CHRI and payable to WHC or its
Permitted Assigns (the "NOTE"). The Note shall be secured by all common stock
of Prime received by CHRI in connection with the Merger (the "CHRI STOCK") and
such other collateral as may be reasonably satisfactory to WHC, pursuant to a
Security Agreement whose terms and conditions are reasonably acceptable to
Manager and CHRI (the "SECURITY AGREEMENT"). "PERMITTED ASSIGNS" means (A)
affiliates of WHC or, following its merger with Patriot American Hospitality,
Inc., a Delaware corporation ("PATRIOT"), any affiliate of Patriot or the
entity with which its common stock is paired or (B) any lender in connection
with providing security for bona fide indebtedness. All amounts payable under
the Note shall be payable to WHC or a Permitted Assign, which shall distribute
such amounts to the Wyndham Parties or other persons in a manner agreed upon by
such parties. The Wyndham Parties hereby acknowledge receipt of the Note.
The Settlement Fee shall be paid to and accepted by the Wyndham Parties in
complete settlement of all amounts owing to any Wyndham Party by any Prime
Party or Homegate Party in
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respect of the termination of the Management Agreements (including, without
limitation, any "Termination Fee" under the Management Agreements) and as part
of the consideration for the Wyndham Parties' release of their respective
Claims (defined below). The Settlement Fee shall not, however, constitute
payment of any amounts that have accrued under the Management Related
Agreements before the Termination Date (including the "Management Fees" under
the Management Agreements) or satisfaction of any indemnification obligations
under the Management Agreements.
(c) ONGOING OPERATIONS. The Homegate Parties and the Wyndham Parties
shall continue to perform their respective obligations from and after the date
hereof under the Management Related Agreements. Upon the termination of the
Management Related Agreements pursuant to Section 1.(a) hereof, Manager shall,
in addition to its obligations under Section 12.7 of each of the Management
Agreements, (1) deliver to Homegate or its designee all standard operating
procedure manuals (other than those which are proprietary to Manager), business
plans, marketing plans, bookings and other records relating to the ownership,
operation, and maintenance of the hotels under the Management Agreements (the
"HOTELS") and (2) assign and convey to Homegate or its designee all of the
Wyndham Parties' rights, titles, and interests, if any, in and to all
management information systems, technical systems and other property at each
Hotel paid for by Homegate (but specifically excluding any centralized system
which is located off-site and is operated by Manager), and shall execute such
documents as Homegate may reasonably request to evidence such assignments and
conveyances and use commercially reasonable efforts to obtain any necessary
consents therefor.
2. MUTUAL RELEASE.
(a) DELIVERY OF DOCUMENTS. On or before the Termination Date and as a
condition to the effectiveness of the termination, the following shall be
delivered to WHC or its Permitted Assigns (the "RELEASE CONDITIONS"):
(1) the Cash Payment;
(2) the Note, receipt of which is hereby acknowledged by the Wyndham
Parties;
(3) the Security Agreement;
(4) the CHRI Stock certificates, together with stock powers duly
executed in blank, and/or such other documents or evidence as WHC or
its Permitted Assigns may reasonably request to perfect WHC's or its
Permitted Assigns' security interests in such stock and in all other
collateral securing the Note as first-priority security interests.
The Wyndham Parties (on behalf of themselves and their Permitted
Assigns) agree they shall not foreclose their security interest
against the CHRI Stock until six months after the Termination Date.
Prime and Homegate hereby agree for the benefit of the Wyndham Parties and CHRI
to deliver the Cash Payment on the Termination Date, and CHRI hereby agrees for
the benefit of the Wyndham Parties, the Homegate Parties, and the Prime Parties
to deliver the Note, the Security Agreement and the other documents required
under clause (4) above on or before the Termination Date. If the Cash
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Payment is made but the documents specified in clauses (3) and (4) of the
Release Conditions have not been executed and delivered as required therein,
then the Cash Payment shall be returned to the party making such payment and
the termination notice in question shall thereafter be ineffective. If the
documents set forth in clauses (2), (3), and (4) of the Release Conditions have
been delivered, but the Cash Payment is not made, then such documents shall be
returned to the party which delivered them and the termination notice in
question shall thereafter be ineffective. Unless and until the Merger and
termination occur and the Release Conditions have been satisfied, none of the
Claims (defined below) shall be released. However, no party hereto shall
institute (or permit any of its affiliates to institute) any legal proceeding
to enforce any Claims until the earliest of (A) the Merger Agreement being
terminated, (B) if the Merger is consummated and a termination is given, the
Release Conditions having not been satisfied on the Termination Date, (C) if
the Merger is consummated but the termination right provided in Section 1 is
not timely exercised, or (D) March 31, 1998 if neither the Merger Agreement is
terminated nor the Merger is consummated by such date.
(b) MUTUAL RELEASE. Upon satisfaction of the Release Conditions (but not
before then), the releases set forth in this Section 2.(b) shall become
effective. Each of the Wyndham Parties hereby releases and forever discharges
each of Homegate, VPS, Prime, their respective parent companies, successors,
predecessors, subsidiaries, and affiliates and each of such party's directors,
officers, employees, partners, agents, and attorneys (collectively, the
"HOMEGATE RELEASED PARTIES") from all Claims (defined below) it may have
against all or any of the Homegate Released Parties. Each of the Prime Parties
and each of the Homegate Parties hereby releases and forever discharges each of
the Wyndham Parties, their parent companies, successors, predecessors,
subsidiaries, and affiliates and each of such party's respective directors,
officers, employees, partners, agents, and attorneys (the "WYNDHAM RELEASED
PARTIES") from all Claims it may have against all or any of the Wyndham
Released Parties. Each of Homegate, VPS, Prime, Manager, WHC and IP hereby
releases and forever discharges CHRI and its affiliates and each of such
parties' directors, officers, employees, partners, agents, and attorneys
(collectively the "CHRI RELEASED PARTIES") from all Claims it may have against
all or any of the CHRI Released Parties. CHRI hereby releases and forever
discharges the Homegate Released Parties and the Wyndham Released Parties from
all Claims it may have against all or any of such parties. As used in this
Section 2, the term "CLAIMS" means all possible claims, demands, actions,
causes of actions, costs, expenses, and liabilities whatsoever, known or
unknown, suspected or unsuspected, anticipated or unanticipated, foreseeable or
unforeseeable, at law or in equity, relating to or arising out of, in whole or
in part, the Proposed Transactions, the failure to consummate such
transactions, and/or the Merger based on any event or circumstance existing on
or before the date of this Agreement regardless of whether any such Claim
arises out of contract, tort, violation of laws, or otherwise including,
without limitation, any claim for tortious interference with contract, breach
of contract, fraud or breach of fiduciary duty, except as provided in Section
2.(c). Subject to Section 2.(c), it is the express intention of each releasing
party that it absolutely and fully releases any and all claims, causes of
action, and liabilities of any nature whatsoever, it may or might now have
against the parties being released by such party relating to the Proposed
Transactions, the failure to consummate such transactions, and/or the Merger
based on any event or circumstances existing on or before the date hereof to
the maximum extent permitted by law, even if same are wholly unknown,
unsuspected or unanticipated, intending hereby to conclude a full and complete
mutual release as to all such matters. Each of the parties hereto represents
and warrants to the other that it is the current legal and beneficial owner of
all Claims
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released by it hereunder and it has not assigned, pledged, or contracted to
assign or pledge any such Claim to any other person. If any party being
released hereunder is not a party hereto, then it shall be a third party
beneficiary hereof with respect to such release.
(c) EXCLUDED MATTERS. Nothing in this Section 2 shall release any party
hereto from any claims or obligations arising under the individual Management
Related Agreements whether now existing or hereafter arising (other than the
Termination Fees under the Management Agreements upon payment of the Settlement
Fee), any claims or obligations arising under this Agreement, the Note or the
Security Agreement or, with respect to the releases between CHRI, the Homegate
Parties, and the Prime Parties, obligations arising under the Merger Agreement.
3. REPRESENTATIONS AND WARRANTIES.
(a) WYNDHAM PARTIES. Each of the Wyndham Parties which is a signatory
hereto hereby represents and warrants that (1) it has authority to bind its
affiliates to the terms hereof; (2) the maximum number of employees hired by
Manager for any particular Hotel is less than fifty; and (3) the execution,
delivery and performance of this Agreement has been duly authorized and this
Agreement constitutes the legal, valid and binding obligation of the Wyndham
Parties;
(b) HOMEGATE PARTIES. Each of the Homegate Parties which is a signatory
hereto represents and warrants that (1) it has authority to bind its affiliates
to the terms hereof; and (2) the execution, delivery and performance of this
Agreement has been duly authorized and this Agreement constitutes the legal,
valid and binding obligation of the Homegate Parties;
(c) PRIME PARTIES. Each of the Prime Parties which is a signatory hereto
represents and warrants that it (1) has authority to bind its affiliates to the
terms hereof; and (2) the execution, delivery and performance of this Agreement
has been duly authorized and this Agreement constitutes the legal, valid and
binding obligation of the Prime Parties; and
(d) CHRI PARTIES. CHRI represents and warrants that (1) the execution,
delivery and performance of this Agreement and the Note have been duly
authorized and this Agreement and the Note constitutes (and the Security
Agreement will constitute upon its execution and delivery) the legal, valid and
binding obligation of CHRI and (2) it will receive not less than 59,000 shares
of common stock of Prime in connection with the Merger (subject to adjustment
of the exchange ratio in accordance with Merger Agreement).
4. BINDING EFFECT. Except as modified hereby, the Management Related
Agreements shall remain in full effect. This Agreement shall be binding on the
Prime Parties, the Wyndham Parties, CHRI and the Homegate Parties and their
respective successors and assigns, and shall be governed by New York law.
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5. NO ADMISSION. The execution of this Agreement by each of the parties
hereto shall not be construed as an admission of liability on the part of any
party hereto. Except as expressly provided in the last sentence of Section
2(a), neither the execution and delivery of this Agreement nor any provision
hereof shall prejudice any party's position with respect to any dispute unless
until the Release Conditions have been satisfied.
6. WYNDHAM PARTY EXPENSES. Homegate shall pay all third party expenses
incurred by the Wyndham Parties before the date hereof in connection with the
Proposed Transactions (not to exceed $50,000), as soon as reasonably
practicable, but in any event by September 15, 1997.
[INTENTIONALLY LEFT BLANK]
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Signature Pages to the Agreement Regarding Termination of Management
Agreements dated July 25, 1997.
HOMEGATE HOSPITALITY, INC., a Delaware
corporation
By: /s/ ROBERT A. FAITH
------------------------------------
Name: Robert A. Faith
----------------------------------
Title:
---------------------------------
VPS I, L.P., a Delaware limited
partnership
By: VPS, Inc., a Delaware corporation,
its general partner
By: /s/ ROBERT A. FAITH
--------------------------------
Name: Robert A. Faith
------------------------------
Title:
-----------------------------
PRIME HOSPITALITY CORP., a Delaware
corporation
By: /s/ [ILLEGIBLE]
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
WYNDHAM MANAGEMENT CORPORATION,
a Delaware corporation
By: /s/ ANNE L. RAYMOND
------------------------------------
Name: Anne L. Raymond
----------------------------------
Title: Vice President
---------------------------------
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WYNDHAM HOTEL CORPORATION, a
Delaware corporation
By: /s/ ANNE L. RAYMOND
------------------------------------
Name: Anne L. Raymond
----------------------------------
Title: Executive Vice President
---------------------------------
WYNDHAM IP CORPORATION, a Delaware
corporation
By: /s/ ANNE L. RAYMOND
------------------------------------
Name: Anne L. Raymond
----------------------------------
Title: Vice President
---------------------------------
CROW HOTEL REALTY INVESTORS, L.P., a
Texas limited partnership
By: Crow Family, Inc., its general
partner
By: /s/ ANTHONY W. DONE
--------------------------------
Name: Anthony W. Done
------------------------------
Title: Executive Vice President
-----------------------------
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SCHEDULE 1
Management Agreement dated September 6, 1996 for Fiesta Park in San Antonio, TX
Management Agreement dated September 6, 1996 for Airport Site in San Antonio, TX
Management Agreement dated September 6, 1996 for Site in Amarillo, TX
Management Agreement dated September 6, 1996 for Site in El Paso, TX
Management Agreement dated September 6, 1996 for Site in Irving, TX
Management Agreement dated November 1, 1996 for 44th & Oaks in Phoenix, AZ
Management Agreement dated June 14, 1996 for Studio Suites in Grand Prairie, TX
Management Agreement dated January 1, 1997 for Towne Lake Hotel in Austin, TX
Schedule 1-1
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EXHIBIT A
PROMISSORY NOTE
$4,000,000 July 25, 1997
FOR VALUE RECEIVED CROW HOTEL REALTY INVESTORS, L.P. ("MAKER"), promises
to pay to WYNDHAM HOTEL CORPORATION, a Delaware corporation, or its Permitted
Assigns (defined below) ("PAYEE"), the principal sum of $4,000,000, together
with interest accruing on the principal balance outstanding hereunder from the
Effective Date (defined below) until maturity (or until paid, if prior to
maturity) at the lesser of (a) 7% per annum or (b) the maximum lawful rate of
interest. All past due amounts of principal and interest shall bear interest
until paid at the lesser of 12% per annum or the maximum lawful rate of
interest.
The principal balance of this Note and all accrued, unpaid interest hereon
shall be payable six months after the Effective Date. This Note may be prepaid
in whole or in part, without premium or penalty. All payments made hereunder
shall be applied first to accrued unpaid interest and then to reduction of the
outstanding principal balance hereof. Payments of principal and interest are to
be made at the office of Payee at 2001 Bryan Street, Suite 2300, Dallas, Texas
75201, or such other place as the holder hereof shall designate to Maker in
writing, in lawful money of the United States of America.
"PERMITTED ASSIGNS" means (a) any affiliate of Wyndham Hotel Corporation
or, following its merger with Patriot American Hospitality, Inc., a Delaware
corporation ("PATRIOT"), any affiliate of Patriot or the entity with which its
common stock is paired or (b) any lender in connection with providing security
for bona fide indebtedness. The term "AFFILIATE," as to any party, means any
entity in which such party, directly or indirectly, owns more than thirty
percent (30%) of the voting or economic interests.
If a default is made in the performance of any covenant or agreement
contained in any security agreement executed by Maker in favor of Payee, under
which Maker grants to Payee security interests in collateral to secure payment
of this Note (a "SECURITY AGREEMENT") and such default continues for a period
of 15 days after Payee has delivered to Maker written notice thereof, then,
while such default is continuing, the holder of this Note may, without notice
or demand, declare the entire unpaid principal balance hereof and unpaid
accrued interest at once due; however, Payee's right to foreclose on certain
collateral before six months after the Effective Date is prohibited as provided
in Section 2(a)(4) of the Termination Agreement (defined below). If this Note
is placed in the hands of an attorney for collection, or suit is filed hereon,
or proceedings are had in bankruptcy, probate, receivership, reorganization, or
other judicial proceedings for the establishment or collection of any amount
called for hereunder, or any amount payable or to be payable hereunder is
collected through any such proceedings, Maker shall pay to the holder of this
Note a reasonable amount as attorneys' fees. Payee's delay in enforcing or
failure to enforce its rights and recourses under this Note or a Security
Agreement, shall not constitute a waiver of such rights, nor shall Payee's
acceptance of any partial or late payment relieve Maker of its obligation to
timely and fully pay all indebtedness evidenced by this Note when due.
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Maker, co-makers, signers, sureties, endorsers and guarantors, and each of
them, expressly waive demand and presentment for payment, notice of nonpayment,
protest, notice of protest, notice of dishonor, notice of intent to accelerate
the maturity hereof, notice of the acceleration of the maturity hereof,
bringing of suit and diligence in taking any action to collect amounts called
for hereunder and in the handling of securities at any time existing in
connection herewith; and are and shall be directly and primarily liable for the
payment of all sums owing and to be owing hereon, regardless of and without any
notice, diligence, act or omission as or with respect to the collection of any
amount called for hereunder or in connection with any right, lien, interest or
property at any and all times had or existing as security for any amount called
for hereunder.
It is the intention of Maker and Payee to conform strictly to applicable
usury laws. Accordingly, if the transactions contemplated hereby would be
usurious under applicable law (including the laws of the State of Texas and the
laws of the United States of America), then: (i) the aggregate of all
consideration which constitutes interest under applicable law that is taken,
reserved, contracted for, charged or received under this Note or under any of
the other aforesaid agreements or otherwise in connection with this Note shall
under no circumstances exceed the maximum amount of interest allowed by
applicable law, and any excess shall be credited on the Note by the holder
hereof (or, if this Note shall have been paid in full, refunded to the Maker);
and (ii) in the event that maturity of this Note is accelerated by reason of an
election by the holder hereof resulting from any default hereunder or
otherwise, or in the event of any required or permitted prepayment, then such
consideration that constitutes interest may never include more than the maximum
amount allowed by applicable law, and excess interest, if any, provided for in
this Note or otherwise shall be cancelled automatically as of the date of such
acceleration or prepayment and, if theretofore prepaid, shall be credited on
this Note (or if this Note shall have been paid in full, refunded to the
Maker).
This Note has been executed and delivered and shall be construed in
accordance with and governed by the laws of the State of Texas and the United
States of America. Unless changed in accordance with law, the applicable rate
ceiling under Texas law shall be the indicated (weekly) rate ceiling from time
to time in effect as provided in TEX. REV. CIV. STAT. ANN. art. 5069-1.04, as
amended.
The liability of the general partner of Maker shall be limited to its
interest in Maker; accordingly, no other assets of the general partner of Maker
shall be subject to recourse for the obligations under this Note or any
document executed in connection herewith.
This Note shall be effective if and only if the "Management Related
Agreements" (as defined in the Termination Agreement) have been terminated
pursuant to Section 1.a of the Termination Agreement and the "Release
Conditions" under the Termination Agreement have been satisfied. The date on
which such events occur is herein called the "EFFECTIVE DATE." "TERMINATION
AGREEMENT" means the Agreement Regarding Termination of Management Agreements
of even date herewith among Payee, Maker, Homegate Hospitality, Inc., Prime
Hospitality Corp., and the other parties thereto. If the Effective Date has not
occurred by March 31, 1998, then this Note shall be ineffective and Payee shall
deliver to Maker this Note, all collateral delivered to secure this Note and
all documents executed to evidence or secure the obligations of Maker
hereunder.
[INTENTIONALLY LEFT BLANK]
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Signature page to the $4,000,000 Promissory Note dated July 25, 1997
executed by Crow Hotel Realty Investors, L.P., payable to Wyndham Hotel
Corporation or its Permitted Assigns.
CROW HOTEL REALTY INVESTORS, L.P., a
Texas limited partnership
By: Crow Family, Inc.
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
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EXHIBIT 10.35
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of July 24, 1997, by and between Patriot American Hospitality,
Inc., a Delaware corporation (the "Company"), Patriot American Hospitality
Operating Company, a Delaware corporation ("OPCO"), and each of the parties
signatory hereto.
RECITALS
WHEREAS, pursuant to (a) a Stock Purchase Agreement dated April 14,
1997 (the "Stock Purchase Agreement") between Patriot American Hospitality,
Inc., a Virginia corporation since merged with and into the Company and CF
Securities, L.P., a Texas limited partnership ("Family Securities"), (b) an
Agreement and Plan of Merger between the Company and Wyndham Hotel Corporation,
a Delaware corporation ("Wyndham") and (c) a Ratification Agreement dated July
24, 1997 (the "OPCO Ratification Agreement") among OPCO, Family Securities and
Wyndham, Family Securities and the Wynopt Partnerships (as defined in Section 1
hereof) (the Wynopt Partnerships and Family Securities, collectively, the
"Holders" and each, a "Holder") received (i) shares of common stock, par value
$.01 per share, of the Company (the "Company Stock") and shares of common
stock, par value $.01 per share, of OPCO (the "OPCO Stock"), which shares of
Company Stock and OPCO Stock are paired and transferable and may be traded only
in combination as a single unit on the New York Stock Exchange (the "Paired
Shares"), and (ii) shares of unpaired Series A Preferred Stock, par value $.01
per share, of the Company (the "Unpaired Shares"), which Unpaired Shares are
convertible under certain conditions into an equivalent number of Paired
Shares.
WHEREAS, as an inducement to Family Securities to enter into and close
the transaction contemplated by the Stock Purchase Agreement, the Company and
OPCO agreed to execute this Agreement conferring on the Holders the benefits
hereby provided;
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein and in the Stock Purchase Agreement, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto hereby agree as follows:
1. Definitions. For purposes of this Agreement, the following
terms have the following meanings when used herein with initial capital
letters:
Advice: As defined in Section 6 hereof.
Demand Notice: As defined in Section 3 hereof.
Demand Registration: As defined in Section 3 hereof.
Losses: As defined in Section 8 hereof.
<PAGE> 2
Piggyback Registration: As defined in Section 4 hereof.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any prospectus supplement, with
respect to the terms of the offering of any portion of the Registrable
Securities covered by such Registration Statement and all other amendments and
supplements to the prospectus, including post-effective amendments, and all
material incorporated by reference or deemed to be incorporated by reference in
such prospectus.
Registrable Securities: The Paired Shares either (i) issued to
Holders pursuant to the Stock Purchase Agreement or (ii) to be issued to
Holders upon conversion of the Unpaired Shares issued to Holders pursuant to
the Stock Purchase Agreement, in any case excluding (A) Paired Shares that have
been disposed of pursuant to a Registration Statement relating to the sale
thereof that has become effective under the Securities Act or (B), in the case
of the Wynopt Partnerships, Paired Shares eligible to be sold pursuant to Rule
144 or Rule 145 of the Securities Act. Registrable Securities shall also
include any Paired Shares or other securities (or Paired Shares underlying such
other securities) that may be received by the Holders (x) as a result of a
stock dividend on or stock split of Registrable Securities (or stock dividend
on or stock split of the Unpaired Shares in respect of which Registrable
Securities are issuable) or (y) on account of Registrable Securities (or
Unpaired Shares in respect of which Registrable Securities are issuable) in a
recapitalization of or other transaction involving the Company and/or OPCO.
Registration Statement: Any registration statement of the
Company and OPCO under the Securities Act that covers any of the Registrable
Securities pursuant to the provisions of this Agreement, including the related
Prospectus, all amendments and supplements to such registration statement
(including post-effective amendments), all exhibits and all material
incorporated by reference or deemed to be incorporated by reference in such
registration statement.
SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended.
Underwritten Offering: A distribution, registered pursuant to
the Securities Act, in which securities of the Company and OPCO are sold to the
public through one or more underwriters.
Wynopt Partnerships: Collectively, (i) Wynopt Investment
Partnership Level II, L.P., a Texas limited partnership and (ii) Wynopt
Investment Partnership, L.P., a Texas limited partnership.
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2. Shelf Registration of Resales.
(a) Registration of Resales on Form S-4. The Company and
OPCO represent and warrant to the Holders that (i) the Holders' offering and
resale (in accordance with the intended methods of distribution heretofore
indicated by the Holders) of all their Registrable Securities have been
registered under the Securities Act on the Form S-4 Registration Statement (No.
333-______) (the "Form S-4") filed by the Company and OPCO in connection with
their issuance of Paired Shares and Unpaired Shares in connection with the
merger of Wyndham with and into OPCO (the "Merger") and related transactions,
(ii) any post-effective amendment to the Form S-4 necessary to effect such
registration of such offering and resale has been declared effective by the
SEC, (iii) neither the SEC nor any other federal or state governmental
authority has issued a stop order suspending the effectiveness of the Form S-4
or, to the actual knowledge of either the Company or OPCO, initiated
proceedings for that purpose, (iv) neither the Company nor OPCO has received
any notification with respect to the suspension of the qualification or
exemption from qualification of any of the Registrable Securities for sale in
any jurisdiction nor, to the actual knowledge of either the Company or OPCO,
has any proceeding been initiated or threatened for such purpose, and (v) to
the actual knowledge of the Company and OPCO, no event has occurred that makes
any statement made in the Form S-4 or related resale Prospectus contained
therein (the "Resale Prospectus") or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or that
requires the making of any changes in the Form S-4 or Resale Prospectus or any
such document so that, in the case of the Registration Statement, it will not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and, in the case of the Resale Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(b) Conversion of Form S-4. Subject to the other
provisions of this Agreement (including the covenant contained in Section 6
with respect to the absence of Suspension Notices during the 60 days following
the date hereof), acknowledge that the Company and OPCO may, in their sole
discretion, convert the Form S-4 to a Registration Statement on another form
permitted to be used by the Company and OPCO for the registration under the
Securities Act of the Holders' offering and resale of Registrable Securities
(in accordance with the intended methods of distribution); provided, however,
that nothing in this Section shall negate the Company's and OPCO's obligation
to file and maintain the effectiveness of the Registration Statement referred
to in this Section 2. References herein to the "Form S-4" shall be deemed to
include any Registration Statement into which it shall be converted, and the
Form S-4 shall be deemed to be a "Registration Statement" for all purposes of
this Agreement.
(c) Maintenance of Effectiveness. The Company and OPCO
agree to use commercially reasonable efforts to keep the Form S-4 effective for
a period of four (4) years from the effective date thereof.
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<PAGE> 4
(d) Underwritten Offerings During Pendency of the Form
S-4. At any time and from time to time during the period in which the Company
and OPCO are obligated to use commercially reasonable efforts to maintain the
effectiveness of the Form S-4, one or more Holders holding Registrable
Securities with a market value of at least $20,000,000 (calculated based on the
closing sale price of such securities on the principal securities exchange on
which such securities are listed on the business day immediately preceding such
initial notice) may give notice to the Company and OPCO of their desire to
effect an Underwritten Offering, and the Company and OPCO shall, if requested
by the managing underwriter or underwriters, if any, or Holders holding a
majority of the Registrable Securities being registered, (i) promptly
incorporate in a Prospectus supplement or post-effective amendment to the Form
S-4 (or in another Registration Statement, if required) such information as the
managing underwriter or underwriters, if any, and such Holders agree should be
included therein as may be required by applicable law and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
(or other Registration Statement) as soon as practicable after the Company and
OPCO have received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment (or other Registration
Statement); provided, however, that the Company and OPCO will not be required
to take any actions under this paragraph that are not, in the opinion of
counsel for the Company and OPCO, in compliance with applicable law. In any
such Underwritten Offering or in any offering which may not be underwritten,
the Company and OPCO shall, if requested by the managing underwriter, the
underwriters, the selling agents, or the investment bankers, if any, of the
Holders making the offering or by such Holders, take such actions as may be
appropriate for such offering as are described in Section 6 hereof.
3. Demand Registration.
(a) Requests for Registration. At any time and from time
to time after the period during which the Company and OPCO are obligated to use
commercially reasonable efforts to maintain the effectiveness of the Form S-4,
subject to the conditions set forth in this Agreement, including, without
limitation, the conditions set forth in this paragraph 3(a), one or more
Holders will have the right, by written notice delivered to the Company (a
"Demand Notice"), to require the Company and OPCO to register Registrable
Securities under and in accordance with the provisions of the Securities Act (a
"Demand Registration"); provided, however, that: (i) no such Demand
Registration may be required unless the Holder or Holders requesting such
Demand Registration provide to the Company and OPCO a certificate (the
"Authorizing Certificate"), substantially in the form of Exhibit A hereto, that
is signed by Holders seeking to include in such Demand Registration Registrable
Securities with a market value of at least $20,000,000 (calculated based on the
closing sale price of such securities on the principal securities exchange on
which such securities are listed on the business day immediately preceding the
date of the Demand Notice) as of the date the Demand Notice is given and (ii)
no Demand Notice may be given prior to nine (9) months after the effective date
of the immediately preceding Demand Registration. The Authorizing Certificate
shall set forth (A) the name of each Holder signing such Authorizing
Certificate, (B) the number of Registrable Securities held by each such Holder,
and, if different, the number of Registrable Securities such Holder has elected
to have registered, (C) a certification from each such
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<PAGE> 5
Holder that it is requesting the registration of only those Paired Shares
received by such Holder pursuant to the Stock Purchase Agreement or upon
conversion of Unpaired Shares issued to such Holder pursuant to the Stock
Purchase Agreement and (D) the intended methods of disposition of the
Registrable Securities. Notwithstanding the foregoing, a good faith decision by
a Holder to withdraw Registrable Securities from registration will not affect
the Company's obligations hereunder even if the amount remaining to be
registered has a market value of less than $20,000,000 (calculated as
aforesaid), provided that such a registration will constitute a Demand
Registration under this Section 3.
(b) Filing and Effectiveness. The Company and OPCO will
file a Registration Statement relating to any Demand Registration within 60
days following the date on which the Demand Notice is given and will use all
reasonable efforts to cause the same to be declared effective by the SEC as
soon as practicable thereafter. If any Demand Registration is requested to be
effected as a Shelf Registration (as defined herein) by the Holders demanding
such Demand Registration, the Company and OPCO will keep the Registration
Statement filed in respect thereof effective for a period of six (6) months
from the date on which the SEC declares such Registration Statement effective
(subject to extension pursuant to Sections 5 and 6 hereof) or such shorter
period that will terminate when all Registrable Securities covered by such
Registration Statement have been sold pursuant to such Registration Statement.
Within ten (10) business days after receipt of such Demand Notice, the
Company will serve written notice thereof (the "Notice") to all other Holders
and will, subject to the provisions of Section 3(c) hereof, include in such
registration all Registrable Securities with respect to which the Company
receives written requests for inclusion therein within ten (10) business days
after the receipt of the Notice by the applicable Holder. The Holder will be
permitted to withdraw in good faith all or part of the Registrable Securities
from a Demand Registration at any time prior to the effective date of such
Demand Registration, in which event the Company and OPCO will promptly amend
or, if applicable, withdraw the related Registration Statement.
(c) Priority on Demand Registration. If Registrable
Securities are to be registered pursuant to a Demand Registration, the Company
and OPCO shall provide written notice to the other Holders and will permit all
such Holders who request to be included in the Demand Registration to include
any or all Registrable Securities held by such Holders in such Demand
Registration. Notwithstanding the foregoing, if the managing underwriter or
underwriters of an Underwritten Offering to which such Demand Registration
relates advises the Holders that the total amount of Registrable Securities
that such Holders intend to include in such Demand Registration is in the
aggregate such as to materially and adversely affect the success of such
offering, then the number of Registrable Securities to be included in such
Demand Registration will, if necessary, be reduced and there will be included
in such underwritten offering the number of Registrable Securities that, in the
opinion of such managing underwriter or underwriters, can be sold without
materially and adversely affecting the success of such Underwritten Offering,
allocated pro rata among the Holders of
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<PAGE> 6
Registrable Securities on the basis of the amount of Registrable Securities
requested to be included therein by each such Holder.
(d) Postponement of Demand Registration. The Company and
OPCO will be entitled to postpone the filing period of any Demand Registration
for a reasonable period of time not in excess of 90 calendar days if the
Company and OPCO determine, in the good faith exercise of the business judgment
of their respective Boards of Directors, that such registration and offering
could materially interfere with bona fide financing plans of the Company and
OPCO or would require disclosure of information, the premature disclosure of
which could materially and adversely affect the Company or OPCO. If the Company
and OPCO postpone the filing of a Registration Statement, they will promptly
notify the Holders in writing (i) when the events or circumstances permitting
such postponement have ended and (ii) that the decision to postpone was made by
the Boards of Directors of the Company and OPCO, respectively, in accordance
with this Section 3(d).
4. Piggyback Registration.
(a) Right to Piggyback. If at any time while any
Registrable Securities are outstanding the Company and OPCO propose to file a
Registration Statement with respect to an Underwritten Offering of Paired
Shares solely for cash (other than a Registration Statement (i) on Form S-8 or
any successor form or in connection with any employee or director welfare,
benefit or compensation plan, (ii) on Form S-4 or any successor form or in
connection with an exchange offer, (iii) in connection with a rights offering
or a dividend reinvestment and share purchase plan offered exclusively to
existing holders of Paired Shares, (iv) in connection with an offering solely
to employees of the Company and OPCO or their affiliates, (v) relating to a
transaction pursuant to Rule 145 of the Securities Act, or (vi) a shelf
registration on Form S-3 or any successor form for a primary offering of
securities by the Company and/or OPCO), whether or not for their own account,
the Company and OPCO shall give to Holders holding Unpaired Shares and
Registrable Securities written notice of such proposed filing at least ten (10)
business days before filing. The notice referred to in the preceding sentence
shall offer Holders the opportunity to register such amount of Registrable
Securities as each Holder may request (a "Piggyback Registration"). Subject to
Section 4(b) hereof, the Company and OPCO will include in each such Piggyback
Registration all Registrable Securities with respect to which the Company and
OPCO have received written requests for inclusion therein. The Holders will be
permitted to withdraw all or part of the Registrable Securities from a
Piggyback Registration at any time prior to the effective date of such
Piggyback Registration.
(b) Priority on Piggyback Registrations. The Company and
OPCO will cause the managing underwriter or underwriters of a proposed
Underwritten Offering on behalf of the Company and OPCO to permit Holders
holding Registrable Securities requested to be included in the registration for
such offering to include therein all such Registrable Securities requested to
be so included on the same terms and conditions as any securities of the
Company and OPCO included therein. Notwithstanding the foregoing, if the
managing underwriter or underwriters of such Underwritten Offering deliver an
opinion to the Holders to the effect that (i) the total amount of securities
which such Holders and the Company and
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<PAGE> 7
OPCO propose to include in such Underwritten Offering or (ii) the effect of the
potential withdrawal of any Registrable Securities by any Holder (except any
Holder who has theretofore waived such Holder's right to withdraw all or part
of its Registrable Securities pursuant to Section 4(a) hereof) prior to the
effective date of the Registration Statement relating to such Underwritten
Offering, is such as to materially and adversely affect the success of such
offering, then the amount of securities to be included therein for the account
of Holders (allocated pro rata among such Holders on the basis of the
Registrable Securities requested to be included therein by each such Holder)
will be reduced (to zero if necessary) to reduce the total amount of securities
to be included in such offering to the amount recommended by such managing
underwriter or underwriters. The managing underwriter or underwriters, applying
the same standard, may also exclude entirely from such offering all
Registerable Securities proposed to be included in such offering to the extent
the Registrable Securities are not of the same class as securities of the
Company included in such offering.
5. Restrictions on Sale by Holders. Each Holder agrees, if such
Holder is so requested (pursuant to a timely written notice) by the managing
underwriter or underwriters in an underwritten offering of any class of
securities that constitutes Registrable Securities, not to effect any public
sale or distribution of any of the Company's and OPCO's securities of such
class (except as part of such underwritten offering), including a sale pursuant
to Rule 144, during the 15-calendar day period prior to, and during the
90-calendar day period beginning on, the closing date of such underwritten
offering.
6. Registration Procedures. In connection with the Company's and
OPCO's registration obligations pursuant to Sections 2, 3 and 4 hereof, the
Company and OPCO will effect such registrations to permit the sale of such
Registrable Securities in accordance with the intended method or methods of
disposition thereof, and pursuant thereto the Company and OPCO will as
expeditiously as possible, and in each case to the extent applicable:
(a) Prepare and file with the SEC a Registration
Statement or Registration Statements on any appropriate form under the
Securities Act available for the sale of the Registrable Securities by the
holders thereof in accordance with the intended method or methods of
distribution thereof, and cause each such Registration Statement to become
effective and remain effective as provided herein; provided, however, that
before filing a Registration Statement or Prospectus or any amendments or
supplements thereto (including documents that would be incorporated or deemed
to be incorporated therein by reference) the Company and OPCO will furnish to
the Holders holding Registrable Securities covered by such Registration
Statement, not more than one counsel chosen by Holders holding a majority of
the Registrable Securities being registered ("Special Counsel") and the
managing underwriters, if any, copies of all such documents proposed to be
filed, which documents will be subject to the review of such Holders, such
Special Counsel and such underwriters, and the Company and OPCO will not file
any such Registration Statement or amendment thereto or any Prospectus or any
supplement thereto (including such documents which, upon filing, will be
incorporated or deemed to be incorporated by reference therein) to which the
Holders holding a majority of the Registrable Securities covered by such
Registration Statement or the managing underwriter, if any, shall reasonably
object on a timely basis.
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<PAGE> 8
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Sections 2 and 3; cause the related Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to
be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such Registration Statement
as so amended or in such Prospectus as so supplemented.
(c) Notify the selling Holders and the managing
underwriters, if any, promptly, and (if requested by any such person) confirm
such notice in writing, (i) when a Prospectus or any Prospectus supplement or
post-effective amendment has been filed, and, with respect to a Registration
Statement or any post-effective amendment, when the same has become effective,
(ii) of any request by the SEC or any other federal or state governmental
authority for amendments or supplements to a Registration Statement or related
Prospectus or for additional information, (iii) of the issuance by the SEC or
any other federal or state governmental authority of any stop order suspending
the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) if at any time the representations and
warranties of the Company contained in any agreement contemplated by Section
6(n) hereof (including any underwriting agreement) cease to be true and
correct, (v) of the receipt by the Company and OPCO of any notification with
respect to the suspension of the qualification or exemption from qualification
of any of the Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, (vi) of the
occurrence of any event which makes any statement made in such Registration
Statement or related Prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or which
requires the making of any changes in a Registration Statement, Prospectus or
any such document so that, in the case of the Registration Statement, it will
not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and, in the case of the Prospectus, it will not contain
any untrue statement of a material fact or omit to state any material fact
required to be stated or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, and (vii) of the
Company's and OPCO's reasonable determination that a post-effective amendment
to a Registration Statement would be appropriate.
(d) Use every reasonable effort to obtain the withdrawal
of any order suspending the effectiveness of a Registration Statement, or the
lifting of any suspension of the qualification (or exemption from
qualification) of any of the Registrable Securities for sale in any
jurisdiction, at the earliest possible moment.
(e) If requested by the managing underwriters, if any, or
Holders holding a majority of the Registrable Securities being registered, (i)
promptly incorporate in a Prospectus supplement or post-effective amendment
such information as the managing underwriters, if any, and such Holders agree
should be included therein as may be required by
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<PAGE> 9
applicable law and (ii) make all required filings of such Prospectus supplement
or such post-effective amendment as soon as practicable after the Company and
OPCO have received notification of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; provided, however, that the
Company and OPCO will not be required to take any actions under this Section
6(e) that are not, in the opinion of counsel for the Company and OPCO, in
compliance with applicable law.
(f) Furnish to each selling Holder and each managing
underwriter, if any, without charge, at least one conformed copy of the
Registration Statement and any post-effective amendment thereto, including
financial statements (but excluding schedules, all documents incorporated or
deemed incorporated therein by reference and all exhibits, unless requested in
writing by such holder, counsel or underwriter).
(g) Deliver to each selling Holder and the underwriters,
if any, without charge as many copies of the Prospectus or Prospectuses
relating to such Registrable Securities (including each preliminary prospectus)
and any amendment or supplement thereto as such persons may request; and the
Company and OPCO hereby consent to the use of such Prospectus or each amendment
or supplement thereto by each of the selling Holders and the underwriters, if
any, in connection with the offering and sale of the Registrable Securities
covered by such Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable
Securities, to register or qualify or cooperate with the selling Holders, the
underwriters, if any, and their respective counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or blue sky laws of such jurisdictions within the United States as
any seller or underwriter reasonably requests in writing; use all reasonable
efforts to keep such registration or qualification (or exemption therefrom)
effective during the period the applicable Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in each such jurisdiction of the
Registrable Securities covered by the applicable Registration Statement;
provided, however, that the Company and OPCO will not be required to (i)
qualify to do business in any jurisdiction in which they are not then so
qualified or (ii) take any action that would subject them to service of process
in any such jurisdiction in which they are not then so subject.
(i) Cooperate with the selling Holders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and enable such
Registrable Securities to be in such denominations and registered in such names
as the managing underwriters, if any, shall request at least two business days
prior to any sale of Registrable Securities to the underwriters.
(j) Use all reasonable efforts to cause the Registrable
Securities covered by the applicable Registration Statement to be registered
with or approved by such other governmental agencies or authorities within the
United States except as may be required solely as a consequence of the nature
of any selling Holder's business, in which case the Company
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<PAGE> 10
and OPCO will cooperate in all reasonable respects with the filing of such
Registration Statement and the granting of such approvals as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities.
(k) Upon the occurrence of any event contemplated by
Section 6(c)(vi) or 6(c)(vii) hereof, prepare a supplement or post-effective
amendment to each Registration Statement or a supplement to the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, such Prospectus will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(l) If requested by Holders holding a majority of the
Registrable Securities covered by such Registration Statement or the managing
underwriters, if any, use all reasonable efforts to cause all Registrable
Securities covered by such Registration Statement to be (i) listed on each
securities exchange, if any, on which similar securities issued by the Company
and OPCO are then listed or, if no similar securities issued by the Company and
OPCO are then so listed, on the New York Stock Exchange or another national
securities exchange if the securities qualify to be so listed or (ii)
authorized to be quoted on the National Association of Securities Dealers
Automated Quotation System ("NASDAQ") or the National Market System of NASDAQ
if the securities qualify to be so quoted.
(m) As needed, (i) engage an appropriate transfer agent
and provide the transfer agent with printed certificates for the Registrable
Securities in a form eligible for deposit with The Depository Trust Company and
(ii) provide a CUSIP number for the Registrable Securities.
(n) Enter into such customary agreements (including, in
the event of an Underwritten Offering, an underwriting agreement in form, scope
and substance as is customary in underwritten offerings) and take all such
other commercially reasonable and customary actions in connection therewith
(including those reasonably requested by the Holders holding a majority of the
Registrable Securities being sold or, in the event of an Underwritten Offering,
those reasonably requested by the managing underwriters) in order to expedite
or facilitate the disposition of such Registrable Securities and in such
connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration, (i) make such
representations and warranties to the Holders holding such Registrable
Securities and the underwriters, if any, with respect to the businesses of the
Company and OPCO and their subsidiaries, the Registration Statement, Prospectus
and documents incorporated by reference or deemed incorporated by reference
therein, if any, in each case, in form, substance and scope as are customarily
made by issuers to underwriters in underwritten offerings and confirm the same
if and when requested; (ii) obtain opinions of counsel to the Company and OPCO
and updates thereof, which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the managing underwriters, if any, and
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<PAGE> 11
the Holders holding a majority of the Registrable Securities being sold,
addressed to such selling Holder and each of the underwriters, if any, covering
the matters customarily covered in opinions requested in underwritten offerings
and such other matters as may be reasonably requested by such Holders and
underwriters, including, without limitation, the matters referred to in Section
6(n)(i) hereof; (iii) use reasonable efforts to obtain "comfort" letters and
updates thereof from the independent certified public accountants of the
Company and OPCO (and, if necessary, any other certified public accountants of
any subsidiary of the Company or OPCO or of any business acquired by the
Company or OPCO for which financial statements and financial data is, or is
required to be, included in the Registration Statement), addressed to each
selling Holder and each of the underwriters, if any, such letters to be in
customary form and covering matters of the type customarily covered in
"comfort" letters in connection with underwritten offerings; and (iv) deliver
such documents and certificates as may be reasonably requested by Holders
holding a majority of the Registrable Securities being sold and the managing
underwriters, if any, to evidence the continued validity of the representations
and warranties of the Company and OPCO and their subsidiaries made pursuant to
clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or similar agreement entered into by
the Company or OPCO. The foregoing actions will be taken in connection with
each closing under such underwriting or similar agreement as and to the extent
required thereunder.
(o) Make available for reasonable inspection during
normal business hours by a representative of the Holders holding Registrable
Securities being sold, any underwriter participating in any disposition of
Registrable Securities, and any attorney or accountant retained by such selling
Holders or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company and OPCO and their subsidiaries, and
cause the officers, directors and employees of the Company and OPCO and their
subsidiaries to supply all information reasonably requested by any such
representative, underwriter, attorney or accountant in connection with such
Registration Statement; provided, however, that any records, information or
documents that are designated by the Company or OPCO in writing as confidential
at the time of delivery of such records, information or documents will be kept
confidential by such persons unless (i) such records, information or documents
are in the public domain or otherwise publicly available, (ii) disclosure of
such records, information or documents is required by court or administrative
order or is necessary to respond to inquiries of regulatory authorities, or
(iii) disclosure of such records, information or documents, in the reasonable
opinion of counsel to such person, is otherwise required by law (including,
without limitation, pursuant to the requirements of the Securities Act).
(p) Comply with all applicable rules and regulations of
the SEC and make generally available to their security holders earning
statements satisfying the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder (or any similar rule promulgated under the Securities Act)
no later than 45 calendar days after the end of any 12-month period (or 90
calendar days after the end of any 12-month period if such period is a fiscal
year) (i) commencing at the end of any fiscal quarter in which Registrable
Securities are sold to underwriters in a firm commitment or best efforts
underwritten offering, or (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the
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<PAGE> 12
Company and OPCO, after the effective date of a Registration Statement, which
statements shall cover said 12-month period.
(q) In connection with any underwritten offering, cause
appropriate members of management to cooperate and participate on a reasonable
basis in the underwriters' "road show" conferences related to such offering.
The Company and OPCO may require each seller of Registrable Securities
as to which any registration is being effected to furnish to the Company and
OPCO such information regarding the distribution of such Registrable Securities
as the Company and OPCO may, from time to time, reasonably request in writing
and the Company and OPCO may exclude from such registration the Registrable
Securities of any seller who unreasonably fails to furnish such information
within a reasonable time after receiving such request.
Each Holder will be deemed to have agreed by virtue of its acquisition
of Registrable Securities that, upon receipt of any notice from the Company and
OPCO of the occurrence of any event of the kind described in Section 6 (c)(ii),
6(c)(iii), 6(c)(v), 6(c)(vi) or 6(c)(vii) hereof ("Suspension Notice"), such
Holder will forthwith discontinue disposition of such Registrable Securities
covered by such Registration Statement or Prospectus (a "Black-Out") until such
Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 6(k) hereof, or until it is advised in writing (the
"Advice") by the Company and OPCO that the use of the applicable Prospectus may
be resumed, and such Holder has received copies of any additional or
supplemental filings that are incorporated or deemed to be incorporated by
reference in such Prospectus. Except as expressly provided herein, there shall
be no limitation with regard to the number of Suspension Notices the Company
and OPCO are entitled to give hereunder; provided, however, that neither the
Company nor OPCO shall give a Suspension Notice at any time prior to the date
which is sixty (60) days from the date hereof; and provided, further, that in
no event shall the aggregate number of days the Holders are subject to
Black-Out during any period of 12 consecutive months exceed 180. In the event
the Company and OPCO shall give a Suspension Notice, the time period prescribed
in Section 2 hereof will be extended by the number of days during the time
period from and including the date of the giving of such notice to and
including the date when each seller of Registrable Securities covered by such
Registration Statement shall have received (x) the copies of the supplemented
or amended Prospectus contemplated by Section 6(k) hereof or (y) the Advice.
7. Registration Expenses. All fees and expenses incident to the
performance of or compliance with this Agreement by the Company and OPCO will
be borne by the Company and OPCO whether or not any of the Registration
Statements become effective. Such fees and expenses will include, without
limitation, (i) all registration and filing fees (including, without
limitation, fees and expenses for compliance with securities or "blue sky"
laws) (ii) printing expenses (including, without limitation, expenses of
printing certificates for Registrable Securities in a form eligible for deposit
with The Depository Trust Company and of printing a reasonable number of
prospectuses if the printing of such prospectuses is requested by the Holders
holding a majority of the Registrable Securities included in any Registration
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<PAGE> 13
Statement), (iii) messenger, telephone and delivery expenses incurred by the
Company and OPCO, (iv) fees and disbursements of counsel for the Company and
OPCO incurred by the Company and OPCO, (v) fees and disbursements of all
independent certified public accountants referred to in Section 6(n)(iii)
hereof (including the expenses of any special audit and "comfort" letter
required by or incident to such performance) incurred by the Company and OPCO,
(vi) Securities Act liability insurance if the Company or OPCO so desires such
insurance, and (vii) fees and expenses of all other persons retained by the
Company or OPCO. In addition, the Company and OPCO will pay their internal
expenses (including without limitation all salaries and expenses of their
officers and employees performing legal or accounting duties), the expense of
any annual audit, the fees and expenses incurred in connection with the listing
of the securities to be registered on any securities exchange on which similar
securities issued by the Company are then listed and the fees and expenses of
any person, including special experts, retained by the Company or OPCO. In no
event, however, will the Company or OPCO be responsible for any underwriting
discount or selling commission with respect to any sale of Registrable
Securities pursuant to this Agreement, and the Holders shall be responsible on
a pro rata basis for any taxes of any kind (including, without limitation,
transfer taxes) with respect to any disposition, sale or transfer of
Registrable Securities and for any legal, accounting and other expenses
incurred by them in connection with any Registration Statement.
8. Indemnification.
(a) Indemnification by the Company. The Company and OPCO
will, without limitation as to time, indemnify and hold harmless, to the
fullest extent permitted by law, each Holder holding Registrable Securities
registered pursuant to this Agreement, the officers, directors and agents and
employees of each of them, each person who controls such a Holder (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, agents and employees of any such controlling
person, from and against all losses, claims, damages, liabilities, costs
(including without limitation the costs of investigation and attorneys' fees)
and expenses (collectively, "Losses"), as incurred, arising out of or based
upon any untrue or alleged untrue statement of a material fact contained in any
Registration Statement, Prospectus or form of Prospectus or in any amendment or
supplement thereto or in any preliminary prospectus, or arising out of or based
upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as the same are based solely upon information
furnished in writing to the Company and OPCO by such Holder expressly for use
therein; provided, however, that the Company and OPCO will not be liable to any
Holder to the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Registration Statement, Prospectus or preliminary prospectus if
either (A) (i) such Holder failed to send or deliver a copy of the Prospectus
with or prior to the delivery of written confirmation of the sale by such
Holder of a Registrable Security to the person asserting the claim from which
such Losses arise and (ii) the Prospectus would have completely corrected such
untrue statement or alleged untrue statement or such omission or alleged
omission; or (B) such untrue statement or alleged untrue statement, omission or
alleged omission is completely corrected in an amendment or
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<PAGE> 14
supplement to the Prospectus previously furnished by or on behalf of the
Company and OPCO with copies of the Prospectus, and such Holder thereafter
fails to deliver such Prospectus as so amended or supplemented prior to or
concurrently with the sale of a Registrable Security to the person asserting
the claim from which such Losses arise.
(b) Indemnification by Holders. In connection with any
Registration Statement in which a Holder is participating, such Holder will
furnish to the Company and OPCO in writing such information as the Company and
OPCO reasonably request for use in connection with any Registration Statement,
Prospectus or preliminary prospectus and will indemnify, to the fullest extent
permitted by law, the Company and OPCO, their respective directors and
officers, agents and employees, each person who controls the Company and OPCO
(within the meaning of Section 15 of the Securities Act and Section 20 of the
Exchange Act), and the directors, officers, agents or employees of such
controlling persons, from and against all Losses arising out of or based upon
any untrue statement of a material fact contained in any Registration
Statement, Prospectus or preliminary prospectus or arising out of or based upon
any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
so furnished in writing by such Holder to the Company and OPCO expressly for
use in such Registration Statement, Prospectus or preliminary prospectus and
was relied upon by the Company and OPCO in the preparation of such Registration
Statement, Prospectus or preliminary prospectus. In no event will the liability
of any selling Holder hereunder be greater in amount than the dollar amount of
the proceeds (net of payment of all expenses) received by such Holder upon the
sale of the Registrable Securities giving rise to such indemnification
obligation.
(c) Conduct of Indemnification Proceedings. If any person
shall become entitled to indemnity hereunder (an "indemnified party"), such
indemnified party shall give prompt notice to the party from which such
indemnity is sought (the "indemnifying party") of any claim or of the
commencement of any action or proceeding with respect to which such indemnified
party seeks indemnification or contribution pursuant hereto; provided, however,
that the failure to so notify the indemnifying party will not relieve the
indemnifying party from any obligation or liability except to the extent that
the indemnifying party has been prejudiced materially by such failure. All fees
and expenses (including any fees and expenses incurred in connection with
investigating or preparing to defend such action or proceeding) will be paid to
the indemnified party, as incurred, within five calendar days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). The indemnifying party will not consent to entry of any judgment or
enter into any settlement or otherwise seek to terminate any action or
proceeding in which any indemnified party is or could be a party and as to
which indemnification or contribution could be sought by such indemnified party
under this Section 8, unless such judgment, settlement or other termination
includes as an unconditional term thereof the giving by the claimant or
plaintiff to such indemnified party of a release, in form and substance
satisfactory to the indemnified party, from all liability in respect of such
claim or litigation for which such indemnified party would be entitled to
indemnification hereunder.
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<PAGE> 15
(d) Contribution. If the indemnification provided for in
this Section 8 is unavailable to an indemnified party under Section 8(a) or
8(b) hereof in respect of any Losses or is insufficient to hold such
indemnified party harmless, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, will, severally but not jointly,
contribute to the amount paid or payable by such indemnified party as a result
of such Losses, in such proportion as is appropriate to reflect the relative
fault of the indemnifying party or indemnifying parties, on the one hand, and
such indemnified party, on the other hand, in connection with the actions,
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. The relative fault of such indemnifying
party or indemnifying parties, on the one hand, and such indemnified party, on
the other hand, will be determined by reference to, among other things, whether
any action in question, including any untrue or alleged untrue statement of a
material fact or omission or alleged omission of a material fact, has been
taken or made by, or related to information supplied by, such indemnifying
party or indemnified party, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action, statement or
omission. The amount paid or payable by a party as a result of any Losses will
be deemed to include any legal or other fees or expenses incurred by such party
in connection with any action or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8(d), an indemnifying
party that is a selling Holder will not be required to contribute any amount in
excess of the amount by which the total price at which the Registrable
Securities sold by such indemnifying party and distributed to the public were
offered to the public exceeds the amount of any damages which such indemnifying
party has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) will be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
The indemnity, contribution and expense reimbursement obligations of
the Company and OPCO hereunder will be in addition to any liability the Company
or OPCO may otherwise have hereunder or otherwise. The provisions of this
Section 8 will survive so long as Registrable Securities remain outstanding,
notwithstanding any permitted transfer of the Registrable Securities by any
Holder thereof or any termination of this Agreement.
9. Underwritten Registrations. If any of the Registrable
Securities covered by the Form S-4 or any Demand Registration are to be sold in
an Underwritten Offering, the Holders holding a majority of the Registrable
Securities included in the Demand Notice may propose an investment banker or
investment bankers and manager or managers to manage the Underwritten Offering;
provided, that the Company and OPCO will have reasonable rights of substitution
with respect to such Holders' choice of such investment banker or manager based
on the Company's and OPCO's established relationships with certain financial
institutions. If
15
<PAGE> 16
any Piggyback Registration is an Underwritten Offering, the Company and OPCO
will have the exclusive right to select the investment banker or investment
bankers and managers to administer the offering. Each party hereto agrees that,
in connection with any Underwritten Offering hereunder, it shall undertake to
offer customary indemnification to the participating underwriters.
10. Miscellaneous.
(a) Remedies. In the event of a breach by the Company and
OPCO of their obligations under this Agreement, each Holder, in addition to
being entitled to exercise all rights granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. The Company and OPCO agree that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by them of
any provision of this Agreement and hereby further agree that, in the event of
any action for specific performance in respect of such breach, they will waive
the defense that a remedy at law would be adequate.
(b) Amendments and Waivers. The provisions of this
Agreement may not be amended, modified or supplemented without the prior
written consent of the Company and OPCO, and Holders holding in excess of 50%
of the Registrable Securities and Unpaired Shares in respect of which
Registrable Securities are issuable; provided, however, that the Wynopt
Partnerships' rights hereunder may not be adversely affected by any such
amendment, modification or supplement without the consent of a majority of the
Wynopt Partnerships.
(c) Notices. Except as set forth below, all notices and
other communications provided for or permitted hereunder shall be in writing
and shall be deemed to have been duly given if delivered personally or sent by
telex or telecopier, registered or certified mail (return receipt requested),
postage prepaid or courier or overnight delivery service to the Company and
OPCO at the following address and to a Holder at the address set forth on his
or her signature page to this Agreement (or at such other address for any party
as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
If to the Company: Paul A. Nussbaum
Patriot American Hospitality, Inc.
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
Telephone: 972-888-8000
Telecopy: 972-888-8075
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<PAGE> 17
and OPCO James D. Carreker
Wyndham Hotel Corporation
2001 Bryan Street
Suite 2300
Dallas, TX 75201
With a copy to:
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109
Attn: Kathryn I. Murtagh, Esq.
Telephone: (617) 570-1000
Telecopy: (617) 523-1231
(d) Successors and Assigns. This Agreement will inure to
the benefit of and be binding upon the successors and assigns of the Company
and OPCO. This Agreement may not be assigned by any Holder, except to a
constituent partner or shareholder of such Holder which is an accredited
investor, unless the proposed transferee or assignee of such Holder (a "Holder
Transferee") agrees in a writing reasonably acceptable to the Company and OPCO
to be bound by the terms of this Agreement, and (a) with regard to a Holder
Transferee receiving Registrable Securities held by Family Securities, executes
any and all documents reasonably requested by the Company and OPCO to bind such
Holder Transferee to the terms of (i) that certain Standstill Agreement, dated
as of April 14, 1997, by and between the Company and Family Securities and (ii)
that certain Voting Agreement, dated as of April 14, 1997, by and between the
Company and Family Securities. Except as otherwise expressly permitted herein,
any attempted assignment hereof by any Holder will be void and of no effect and
shall terminate all obligations of the Company and OPCO with respect to such
Holder. Notwithstanding the foregoing, each of the indemnified parties shall
be entitled to enforce the covenants set forth in Section 8 hereof.
(e) Counterparts. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed will be deemed to be an original and all of which
taken together will constitute one and the same instrument.
(f) Headings. The headings in this Agreement are for
convenience of reference only and will not limit or otherwise affect the
meaning hereof.
(g) Governing Law. This agreement will be governed by and
construed in accordance with the laws of the State of Delaware, as applied to
contracts made and performed within the State of Delaware, without regard to
principles of conflict of laws.
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<PAGE> 18
(h) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein will remain in full force and
effect and will in no way be affected, impaired or invalidated, and the parties
hereto will use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such
which may be hereafter declared invalid, void or unenforceable.
(i) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be the
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein, with respect to such subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter including, without limitation, that certain
Registration Rights Agreement dated as of May 24, 1996, by and between Wyndham
and the other parties signatory thereto.
(j) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, an determined by the
court, will be entitled to recover reasonable attorneys' fees in addition to
any other available remedy.
[Remainder of page intentionally left blank]
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<PAGE> 19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
PATRIOT AMERICAN HOSPITALITY, INC.
-------------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
-------------------------------------
Name:
Title:
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<PAGE> 20
REGISTRATION RIGHTS AGREEMENT
HOLDER SIGNATURE PAGE
CF Securities, L.P.
By Mill Spring Holdings, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Wynopt Investment Partnership
Level II, L.P.
By Hampstead GenPar, L.P., General
Partner
By: HH GenPar Partners, General Partner
By: Hampstead Associates, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
Wynopt Investment Partnership, L.P.
By Wynopt Investment GenPar, Inc.,
General Partner
By:
-------------------------------
Name:
-----------------------------
Title:
----------------------------
20
<PAGE> 21
EXHIBIT A
[Date]
FORM OF AUTHORIZING CERTIFICATE
Each of the undersigned Holders, together seeking to include in a
Demand Registration Registrable Securities having a market value (calculated as
described in Section 3(a) of the Registration Rights Agreement to which this
Form of Authorizing Certificate is an Exhibit) of at least $20,000,000, hereby
certifies that:
1. Such Holder's name is set forth below, and the number of
Registrable Securities held by such Holder and the number of
Registrable Securities, if different, such Holder would like
to have registered is set forth opposite such Holder's name.
<TABLE>
<CAPTION>
Number of Number of Registrable
Name Registrable Securities Shares Desired to be Registered
- ---- ---------------------- -------------------------------
<S> <C> <C>
</TABLE>
2. Such Holder is requesting the registration of only those
Paired Shares issued to such Holder pursuant to the Stock
Purchase Agreement or to be issued to the Holder upon
conversion of Unpaired Shares issued to the Holder pursuant to
the Stock Purchase Agreement.
3. All terms used but not defined herein shall have the meanings
ascribed thereto in that certain Registration Rights Agreement
described above.
EXECUTED as of the date set forth above.
[Signatures of Holders]
<PAGE> 1
EXHIBIT 10.36
RATIFICATION AGREEMENT
This RATIFICATION AGREEMENT (this "Agreement"), is made and entered
into as of July 24, 1997 between Patriot American Hospitality, Inc., a Delaware
corporation which operates as a real estate investment trust ("New Patriot"),
and Wyndham Hotel Corporation, a Delaware corporation ("Wyndham").
RECITALS
WHEREAS, Patriot American Hospitality, Inc., a Virginia corporation
and the predecessor by merger to New Patriot ("Patriot"), and Wyndham entered
into an Agreement and Plan of Merger, dated as of April 14, 1997 (the "Merger
Agreement"), pursuant to which Wyndham agreed to merge with and into Patriot
(the "Merger");
WHEREAS, New Patriot (the successor by merger to Patriot and formerly
named "California Jockey Club"), Patriot and Patriot American Hospitality
Operating Company, a Delaware corporation and formerly known as Bay Meadows
Operating Company ("Patriot Operating Company"), entered into an Agreement and
Plan of Merger, dated as of February 24, 1997 (the "Business Combination
Agreement"), pursuant to which Patriot, New Patriot and BMOC agreed to effect a
business combination among Patriot, New Patriot and BMOC (the "Business
Combination");
WHEREAS, the Business Combination has been consummated, and as a
result thereof Patriot has merged with and into New Patriot, with New Patriot
being the surviving company in the Merger;
WHEREAS, as a result of the Business Combination, New Patriot has
succeeded to the rights and obligations of Patriot under the Merger Agreement;
WHEREAS, the Merger Agreement contemplates that New Patriot will
execute and deliver this Agreement pursuant to which New Patriot will expressly
agree with Wyndham to ratify and approve the Merger, the Merger Agreement and
certain Ancillary Agreements, and to perform the covenants and agreements of
Patriot thereunder;
WHEREAS, the boards of directors of New Patriot, Wyndham and Patriot
Operating Company have each determined that the Merger between New Patriot and
Wyndham, in which the outstanding shares of common stock, par value $.01 per
share, of Wyndham (the "Wyndham Stock") will be converted into cash and/or
shares of common stock, par value $.01 per share, of New Patriot (the "New
Patriot Stock") and shares of common stock, par value
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<PAGE> 2
$.01 per share, of Patriot Operating Company (the "Patriot Operating Company
Stock") that are paired and transferrable and traded only in combination as a
single unit (the "Paired Shares") on the New York Stock Exchange pursuant to
the Pairing Agreement dated as of February 17, 1983 between New Patriot and
Patriot Operating Company, as amended (the "Pairing Agreement"), is in the best
interests of their respective companies and stockholders and presents an
opportunity for their respective companies to achieve long-term strategic and
financial benefits, and accordingly have agreed to effect the transactions
provided for in the Merger Agreement and herein upon the terms and subject to
the conditions set forth herein;
WHEREAS, it is intended that the Stock Purchase by Patriot and the
Merger provided for herein be treated as an integrated transaction that, for
federal income tax purposes, qualifies as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code")
and pursuant to which the consideration received by all of the stockholders of
Wyndham shall be tax-free to such stockholders to the extent such consideration
consists of Patriot Unpaired Stock and, to the extent consisting of Patriot
Stock, Paired Shares of Purchase Stock and Patriot Operating Company Stock, and
for financial accounting purposes shall be accounted for as a "purchase";
WHEREAS, the boards of directors of New Patriot, Patriot Operating
Company and Wyndham have received fairness opinions from their financial
advisors, and the Special Committee of the Board of Directors of Wyndham has
received a fairness opinion from its financial advisor, relating to the
transactions contemplated hereby and by the Merger Agreement as more fully
described herein and therein;
WHEREAS, New Patriot desires to make certain representations,
warranties, covenants and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, and in
order to induce Wyndham to proceed with the Merger and the other transactions
contemplated by the Merger Agreement, the parties hereto hereby agree as
follows:
ARTICLE 1. REPRESENTATIONS AND WARRANTIES OF NEW PATRIOT
New Patriot represents and warrants to Wyndham as follows:
1.1 Existence, Good Standing, Authority. New Patriot is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
operate, lease and encumber its properties and to carry on its business as now
conducted.
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<PAGE> 3
1.2 Authorization, Validity and Effect of Agreement. New Patriot has
the requisite power and authority to enter into the transactions contemplated
hereby and to execute and deliver this Agreement and the other Ancillary
Agreements to which it is or will be a party. The Board of Directors of New
Patriot has approved this Agreement and the Merger, and has ratified, confirmed
and adopted the Merger Agreement, the Pairing Agreement Amendment, the Stock
Purchase Agreement, the Ancillary Agreements to which it is a party and the
transactions contemplated hereby and thereby, and has recommended that the
holders of New Patriot Stock authorize and approve the Merger Agreement, as
ratified by New Patriot pursuant to this Agreement, and the Pairing Agreement
Amendment and, if stockholder approval of the Stock Purchase Agreement is
required under applicable law or the rules of the NYSE, the Stock Purchase
Agreement, at the Patriot stockholders' meeting which will be held in
accordance with the provisions of Section 8.3 of the Merger Agreement. As of
the date hereof, all of the directors and executive officers of New Patriot
have indicated that they presently intend to vote all shares of New Patriot
Stock which they own to approve the Merger Agreement, as ratified by New
Patriot pursuant to this Agreement, the Pairing Agreement Amendment and, if
stockholder approval of the Stock Purchase Agreement is required under
applicable law or the rules of the NYSE, the Stock Purchase Agreement, at the
Patriot stockholders' meeting. Subject to the approval of the Merger Agreement,
as ratified by New Patriot pursuant to this Agreement, the Pairing Agreement
Amendment and, if stockholder approval of the Stock Purchase Agreement is
required under applicable law or the rules of the NYSE, the Stock Purchase
Agreement, by the requisite vote of the stockholders of New Patriot, the
execution by New Patriot of this Agreement, the Merger Agreement and the other
Ancillary Agreements to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, have been duly authorized by all
requisite corporate action on the part of New Patriot. This Agreement and the
Merger Agreement constitute, and the other Ancillary Agreements to which it is
or will become a party (when executed and delivered) will constitute, the valid
and legally binding obligations of New Patriot, enforceable against New Patriot
in accordance with their respective terms, subject to applicable bankruptcy,
moratorium or other similar laws relating to creditors' rights and general
principles of equity.
1.3 Capitalization. The authorized capital stock of New Patriot
consists of 650,000,000 shares of New Patriot Stock, 100,000,000 shares of
Preferred Stock, par value $.01 per share, and 750,000,000 shares of Excess
Stock, par value $.01 per share. All issued and outstanding shares of New
Patriot Stock are duly authorized, validly issued, fully paid, nonassessable
and free of preemptive rights.
1.4 No Violation. Except as set forth in Section 7.5 of the Patriot
Disclosure Letter, neither the execution and delivery by New Patriot of this
Agreement or the other Ancillary Agreements nor consummation by New Patriot of
the transactions contemplated by this Agreement or the other Ancillary
Agreements in accordance with their terms, will: (i)
3
<PAGE> 4
conflict with or result in a breach of any provisions of the Patriot
Certificate, the Surviving Corporation Certificate, the Patriot Bylaws, or the
Surviving Corporation Bylaws, or the organizational documents, partnership
agreements or joint venture agreements of other Patriot or any Patriot
Subsidiary; (ii) result in a breach or violation of, a default under, or the
triggering of any payment or other material obligations pursuant to, or
accelerate vesting under, any of the Patriot Stock Plans, or any grant or award
under any of the foregoing; (iii) violate, or conflict with, or result in a
breach of any provision of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) under, or result
in the termination or in a right of termination or cancellation of, or
accelerate the performance required by, or result in the creation of any lien,
security interest, charge or encumbrance upon any of the properties of other
Patriot or any of the Patriot Subsidiaries under, or result in being declared
void, voidable, or without further binding effect, any of the terms, conditions
or provisions of any note, bond, mortgage, indenture, deed of trust or any
license, franchise, permit, lease, contract, agreement or other instrument,
commitment or obligation to which New Patriot or any of the Patriot
Subsidiaries is a party, or by which Patriot or any of the Patriot Subsidiaries
or any of their properties is bound or affected, except for any of the
foregoing matters which, individually or in the aggregate, could not reasonably
be expected to have a New Patriot Material Adverse Effect; or (iv) other than
the Regulatory Filings, require any consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority except where the failure to obtain any such consent, approval or
authorization of, or declaration, filing or registration with, any governmental
or regulatory authority could not have a New Patriot Material Adverse Effect.
1.5 Taxes. Except as would otherwise not be reasonably expected to
have a New Patriot Material Adverse Effect:
(a) Each of the corporate Patriot Subsidiaries of which all the
outstanding capital stock is owned solely by New Patriot is a Qualified REIT
Subsidiary as defined in Section 856(i) of the Code.
(b) New Patriot has qualified, and shall be qualified through
the date of consummation of the Merger, to be treated as a REIT within the
meaning of Sections 856-860 of the Code, including, without limitation, the
requirements of Section 856 and 857 of the Code, for all applicable tax years
to which New Patriot's federal income tax returns are subject to audit and New
Patriot is subject to assessment for taxes reportable therein.
(c) Assuming the accuracy of the representations made by CJC in
Sections 9.10 and 9.11 of the Business Combination Agreement and the
representations made by Patriot Operating Company in Section 8.8 of the
Business Combination Agreement, the consummation of the Business Combination
and the Merger would not, if consummated as of the date of this Agreement, with
the Merger immediately following the Business Combination,
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<PAGE> 5
cause CJC to lose its exemption from the application of Section 269B(a)(3) of
the Code pursuant to Section 136(c)(3) of the Deficit Reduction Act of 1984
(the "Deficit Act"). As of the date hereof, Patriot has no knowledge, without
independent inquiry, of any facts indicating that the foregoing representations
made by CJC and Patriot Operating Company are inaccurate.
ARTICLE 2. COVENANTS AND AGREEMENTS OF NEW PATRIOT
2.1 Covenants and Agreements under Merger Agreement. New Patriot
hereby covenants and agrees with Wyndham that it will be bound by and will
perform each covenant and agreement set forth in the Merger Agreement that by
its terms is binding upon, or to be performed by, Patriot to the same extent as
if each such covenant and agreement were set forth herein and referred to "New
Patriot" in place of "Patriot." Each such covenant and agreement shall be
deemed to be incorporated by reference herein as if set forth in full in this
Agreement.
2.2 Ancillary Agreements. At or prior to the Closing, New Patriot
shall execute and deliver each of the Ancillary Agreements to which it is a
party that, pursuant to Section 1.4 of the Merger Agreement, is to be executed
and delivered by it at or prior to the Closing.
2.3 New Patriot Stock. New Patriot acknowledges and agrees that shares
of New Patriot Stock will be issued in accordance with Section 5.2(a) of the
Merger Agreement to the stockholders of Wyndham in connection with the Merger
and will be paired with the Patriot Operating Company Stock issued pursuant to
the Wyndham/Patriot Operating Company Subscription Agreement in accordance with
the Pairing Agreement, and that Wyndham shall not at any time become a
stockholder of Patriot Operating Company. The provisions of this Section 2.3
and the Wyndham/Patriot Operating Company Subscription Agreement are intended
to comply with Sections 2(a) and 2(b) of the Pairing Agreement.
ARTICLE 3. COVENANTS AND AGREEMENTS OF WYNDHAM
Wyndham hereby covenants and agrees with New Patriot that Wyndham will
continue to be bound by and will perform each covenant and agreement set forth
in the Merger Agreement that by its terms is binding upon, or to be performed
by, Wyndham as if each reference in the Merger Agreement to "Patriot" were a
reference to "New Patriot." Each such covenant and agreement shall be deemed to
be incorporated by reference herein as if set forth in full in this Agreement.
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ARTICLE 4. TERMINATION; AMENDMENT; WAIVER
4.1 Termination. If the Merger Agreement has been terminated, this
Agreement may be terminated and abandoned, at any time prior to the Effective
Time, whether before or after approval of the matters contemplated hereby by
the stockholders of New Patriot, Wyndham or Patriot Operating Company, by the
party terminating the Merger Agreement in accordance with its terms.
4.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 4.1, this Agreement shall forthwith become
void and have no effect, without any liability or obligation on the part of New
Patriot or Wyndham other than the provisions of this Section 4.2, the last
sentence of Section 5.3, and Section 5.4. Nothing contained in this Section 4.2
shall relieve any party for any breach of the representations, warranties,
covenants, or agreements set forth in this Agreement.
4.3 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations
or other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this agreement or in any document
delivered pursuant to this Agreement or (c) subject to the first sentence of
Section 5.5, waive compliance with any of the agreements or conditions
contained in this Agreement. Any Agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
ARTICLE 5. GENERAL PROVISIONS
5.1 Non-Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument pursuant to this Agreement shall not survive the Merger, provided,
however, that the agreements contained in Section 2.1 and Article 3 (to the
extent that any such agreements in Section 2.1 or Article 3 relate to any
covenants in the Merger Agreement that survive the Merger) and this Article 5
shall survive the Merger.
5.2 Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) and addressed as follows:
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If to New Patriot: Patriot American Hospitality, Inc.
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
Attn: Paul A. Nussbaum
With copies to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
Attn: Gilbert G. Menna, P.C.
If to Wyndham: Wyndham Hotel Corporation
2001 Bryan Street
Suite 2300
Dallas, TX 75201
Attn: James D. Carreker
With copies to: Locke Purnell Rain Harrell
2200 Ross Avenue
Suite 220
Dallas, TX 75201-6776
Attn: M. Charles Jennings
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
delivered.
5.3 Assignment; Binding Effect; Benefit. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned prior
to the Closing by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, except
for the provisions of Section 2.1 (to the extent it relates to Sections 8.12
and 8.13 of the Merger Agreement), nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto or
their respective heirs, successors, executors, administrators and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
5.4 Entire Agreement. This Agreement, the Exhibits and the Patriot
Disclosure Letter and all provisions of the Merger Agreement incorporated
herein by reference and any
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documents delivered by the parties in connection herewith constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
5.5 Amendment. This Agreement may be amended by the parties hereto, by
action taken by their respective boards of directors, at any time before or
after approval of matters presented in connection herewith to the stockholders
of Patriot Operating Company, but after any such stockholder approval, no
amendment shall be made which by law requires the further approval of
stockholders without obtaining such further approval. This Agreement may not be
amended except by an instrument in writing signed on behalf of each of the
parties hereto.
5.6 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 conflict of laws. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of America located in the
State of Delaware (the "Delaware Courts") for any litigation arising out of or
relating to this Agreement and the transactions contemplated hereby (and agrees
not to commence any litigation relating thereto except in such courts), waives
any objection to the laying of venue of any such litigation in the Delaware
Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in any inconvenient forum.
5.7 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
5.8 Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
5.9 Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and
vice versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
5.10 Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall
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be deemed to constitute a waiver by the party taking such action of compliance
with any representations, warranties, covenants or agreements contained in this
Agreement. The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a waiver of any prior or
subsequent breach of the same or any other provision hereunder.
5.11 Incorporation. The Patriot Disclosure Letter and the provisions
of the Merger Agreement are hereby incorporated herein and made a part hereof
for all purposes as if fully set forth herein.
5.12 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
5.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
thereof if any Delaware Court, this being in addition to any other remedy to
which they are entitled at law or in equity. Any requirements for the securing
or posting of any bond with respect to such remedy are hereby waived by each of
the parties hereto.
5.14 Certain Definitions. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings ascribed to them in
the Merger Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf on the day and year first
written above.
ATTEST WYNDHAM HOTEL CORPORATION
By: /s/ CARLA S. MORELAND By: /s/ ANNE L. RAYMOND
---------------------------------- -------------------------------
Name Carla S. Moreland Name Anne L. Raymond
Title Vice President, General Counsel Title Executive Vice President
and Secretary
ATTEST PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ WILLIAM W. EVANS, III By: /s/ PAUL A. NUSSBAUM
---------------------------------- -------------------------------
Name William W. Evans, III Name Paul A. Nussbaum
Title Office of the Chairman, Title Chairman, CEO and
Patriot American Hospitality, Inc. President
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EXHIBIT 10.37
RATIFICATION AGREEMENT
This RATIFICATION AGREEMENT (this "Agreement"), is made and entered
into as of July 24, 1997 between Patriot American Hospitality Operating
Company, a Delaware corporation and formerly known as Bay Meadows Operating
Company ("Patriot Operating Company"), Patriot American Hospitality, Inc., a
Delaware corporation which operates as a real estate investment trust ("New
Patriot"), Wyndham Hotel Corporation, a Delaware corporation ("Wyndham") and CF
Securities, L.P., a Texas limited partnership (the "Principal Stockholder").
RECITALS
WHEREAS, Patriot American Hospitality, Inc., a Virginia corporation
and the predecessor by merger to New Patriot ("Patriot"), and Wyndham entered
into an Agreement and Plan of Merger, dated as of April 14, 1997 (the "Merger
Agreement"), pursuant to which Wyndham agreed to merge with and into Patriot
(the "Merger");
WHEREAS, Patriot and the Principal Stockholder entered into a Stock
Purchase Agreement dated as of April 14, 1997 (the "Stock Purchase Agreement"),
pursuant to which Patriot agreed to purchase and Principal Stockholder agreed
to sell all of the Principal Stockholder's shares of Wyndham Common Stock (as
defined below) upon the terms and conditions stated therein immediately prior
to the consummation of the Merger (the "Stock Purchase");
WHEREAS, New Patriot (the successor by merger to Patriot and formerly
named "California Jockey Club"), Patriot and Patriot Operating Company entered
into an Agreement and Plan of Merger, dated as of February 24, 1997 (the
"Business Combination Agreement"), pursuant to which Patriot, New Patriot and
Patriot Operating Company agreed to effect a business combination among
Patriot, New Patriot and Patriot Operating Company (the "Business
Combination");
WHEREAS, the Business Combination has been consummated, and as a
result thereof Patriot has merged with and into New Patriot, with New Patriot
being the surviving company in the Merger;
<PAGE> 2
WHEREAS, as a result of the Business Combination, New Patriot has
succeeded to the rights and obligations of Patriot under the Merger Agreement
and the Stock Purchase Agreement;
WHEREAS, New Patriot and Wyndham have executed and delivered a
Ratification Agreement of even date herewith (the "Patriot Ratification
Agreement") pursuant to which New Patriot has expressly agreed with Wyndham to
ratify and approve the Merger, the Merger Agreement and certain Ancillary
Agreements, and to perform the covenants and agreements of Patriot thereunder;
WHEREAS, the shares of common stock, par value $.01 per share, of New
Patriot (the "New Patriot Stock") and the shares of common stock, par value
$.01 per share, of Patriot Operating Company (the "Patriot Operating Company
Stock") are paired and transferrable and traded only in combination as a single
unit (the "Paired Shares") on the New York Stock Exchange pursuant to the
Pairing Agreement dated as of February 17, 1983 between New Patriot and Patriot
Operating Company, as amended (the "Pairing Agreement");
WHEREAS, the Merger Agreement contemplates that the shares of common
stock, par value $.01 per share, of Wyndham (the "Wyndham Common Stock") will
be converted into cash and/or Paired Shares pursuant to the terms of the Merger
Agreement and the Stock Purchase Agreement contemplates that the Principal
Stockholder will receive cash, Paired Shares and/or unpaired shares of a series
of preferred stock of Patriot (the "Patriot Unpaired Stock") pursuant to the
terms of the Stock Purchase;
WHEREAS, the Merger Agreement and the Stock Purchase Agreement also
contemplate that Patriot Operating Company will execute and deliver this
Agreement, pursuant to which Patriot Operating Company will make certain
representations and warranties to Wyndham and the Principal Stockholder and
enter into certain covenants and agreements with New Patriot, Wyndham and the
Principal Stockholder in order to effectuate the Merger and the Stock Purchase
and to carry out the terms of the Merger Agreement and the Stock Purchase
Agreement and transactions contemplated thereby;
WHEREAS, pursuant to the Merger Agreement, Patriot Operating Company
will enter into the Wyndham/Patriot Operating Company Subscription Agreement
with Wyndham immediately prior to the closing of the Merger, pursuant to which
Wyndham will agree to pay for, and Patriot Operating Company will issue
directly to the holders of Wyndham Common Stock, a number of shares of Patriot
Operating Company Stock equal to the number of shares of Patriot Stock to be
issued to such holders pursuant to the Merger;
WHEREAS, the boards of directors of New Patriot, Wyndham and Patriot
Operating Company have each determined that the Merger between New Patriot and
Wyndham, in which
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the outstanding shares of Wyndham Stock will be converted into Paired Shares
and/or cash, is in the best interests of their respective companies and
stockholders and presents an opportunity for their respective companies to
achieve long-term strategic and financial benefits, and accordingly have agreed
to effect the transactions provided for in the Merger Agreement and herein upon
the terms and subject to the conditions set forth herein, and the board of
directors of Patriot Operating Company has made a similar determination with
respect to the Stock Purchase;
WHEREAS, it is intended that the Stock Purchase by Patriot and the
Merger provided for herein be treated as an integrated transaction that, for
federal income tax purposes, qualifies as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code")
and pursuant to which the consideration received by all of the stockholders of
Wyndham shall be tax-free to such stockholders to the extent such consideration
consists of Patriot Unpaired Stock and, to the extent consisting of Patriot
Stock, Paired Shares of Purchase Stock and Patriot Operating Company Stock),
and for financial accounting purposes shall be accounted for as a "purchase";
WHEREAS, the boards of directors of New Patriot and Wyndham have
received fairness opinions from their financial advisors, and the Special
Committee of the Board of Directors of Wyndham has received a fairness opinion
from its financial advisor, relating to the transactions contemplated hereby
and by the Merger Agreement as more fully described herein and therein; and
WHEREAS, Patriot Operating Company desires to make certain
representations, warranties, covenants and agreements in connection with the
Merger and the Stock Purchase.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, and in
order to induce New Patriot and Wyndham to proceed with the Merger and the
other transactions contemplated by the Merger Agreement, and to induce Patriot
Operating Company and the Principal Stockholder to proceed with the Stock
Purchase and the other transactions contemplated by the Stock Purchase
Agreement, the parties hereto hereby agree as follows:
ARTICLE 1. REPRESENTATIONS AND WARRANTIES OF PATRIOT OPERATING
COMPANY
Patriot Operating Company represents and warrants to Wyndham and the
Principal Stockholder as follows:
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1.1 Existence, Good Standing, Authority. Patriot Operating Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to own, operate, lease and encumber its properties and to carry on
its business as now conducted.
1.2 Authorization, Validity and Effect of Agreement. Patriot Operating
Company has the requisite power and authority to enter into the transactions
contemplated hereby and to execute and deliver this Agreement and the other
Ancillary Agreements to which it is or will be a party. The Board of Directors
of Patriot Operating Company has approved this Agreement, the Merger, the
Merger Agreement, the Patriot Operating Company Stock Issuance, the Pairing
Agreement Amendment, the Patriot Operating Company Charter Amendment, the Stock
Purchase Agreement (including the issuance of Patriot Operating Company Stock
in connection with the Paired Shares issuable by Patriot and Patriot Operating
Company upon conversion of Unpaired Patriot Stock upon the terms described in
Exhibit B thereto), the Voting Agreements, the Registration Rights Agreement
and the other Ancillary Agreements to which it is a party and the transactions
contemplated hereby and thereby, and has agreed to recommend that the holders
of Patriot Operating Company Stock authorize and approve the Patriot Operating
Company Stock Issuance, the Patriot Operating Company Charter Amendment, the
Pairing Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE, the Stock
Purchase Agreement, at the Patriot Operating Company stockholders' meeting
which will be held in accordance with the provisions of Section 8.3 of the
Merger Agreement. As of the date hereof, all of the directors and executive
officers of Patriot Operating Company have indicated that they presently intend
to vote all shares of Patriot Operating Company Stock which they own to approve
the Patriot Operating Company Stock Issuance, the Patriot Operating Company
Charter Amendment, the Pairing Agreement Amendment and, if stockholder approval
of the Stock Purchase Agreement is required under applicable law or the rules
of the NYSE, the Stock Purchase Agreement, at the Patriot Operating Company
stockholders' meeting. Subject to the approval of the Patriot Operating Company
Stock Issuance, the Patriot Operating Company Charter Amendment, the Pairing
Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE , the Stock
Purchase Agreement, by the requisite vote of the stockholders of Patriot
Operating Company, the execution by Patriot Operating Company of this
Agreement, and the other Ancillary Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have been
duly authorized by all requisite corporate action on the part of Patriot
Operating Company. This Agreement constitutes, and the other Ancillary
Agreements to which it will become a party (when executed and delivered) will
constitute, the valid and legally binding obligations of Patriot Operating
Company, enforceable against Patriot Operating Company in accordance with their
respective terms, subject to applicable bankruptcy, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
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1.3 Patriot Operating Company Stock.
(a) The Patriot Operating Company Stock to be issued in connection
with the Merger and the Merger Agreement, when issued in accordance with the
terms of the Merger Agreement, will have been duly and validly authorized by
all necessary corporate action on the part of Patriot Operating Company. The
Patriot Operating Company Stock to be issued in connection with the Merger and
the Merger Agreement, when issued in accordance with the terms of the Merger
Agreement, will be validly issued, fully paid, nonassessable and free of
preemptive rights.
(b) The Patriot Operating Company Stock to be issued in connection
with the Stock Purchase and the Stock Purchase Agreement (including the Patriot
Operating Company Stock issuable in connection with the Paired Shares issuable
by Patriot and Patriot Operating Company upon conversion of Unpaired Patriot
Stock upon the terms described in Exhibit B thereto), when issued in accordance
with the terms of the Stock Purchase Agreement, will have been duly and validly
authorized by all necessary corporate action on the part of Patriot Operating
Company. The Patriot Operating Company Stock to be issued in connection with
the Stock Purchase and the Stock Purchase Agreement (including the Patriot
Operating Company Stock issuable in connection with Paired Shares issuable by
Patriot and Patriot Operating Company upon conversion of Unpaired Patriot Stock
upon the terms described in Exhibit B thereto), when issued in accordance with
the terms of the Stock Purchase Agreement (including Exhibit B thereto) will be
validly issued, fully paid, nonassessable and free of preemptive rights.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF NEW PATRIOT
New Patriot represents and warrants to Patriot Operating Company,
Wyndham and the Principal Stockholder as follows:
2.1 Existence, Good Standing, Authority. New Patriot is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
operate, lease and encumber its properties and to carry on its business as now
conducted.
2.2 Authorization, Validity and Effect of Agreement. New Patriot has
the requisite power and authority to enter into the transactions contemplated
hereby and to execute and deliver this Agreement and the other Ancillary
Agreements to which it is or will be a party. The Board of Directors of New
Patriot has approved this Agreement and the Merger, and has ratified, confirmed
and adopted the Merger Agreement, the Pairing Agreement Amendment, the Stock
Purchase Agreement, the Ancillary Agreements to which it is a party and the
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transactions contemplated hereby and thereby, and has recommended that the
holders of New Patriot Stock authorize and approve the Merger Agreement, the
Patriot Ratification Agreement, the Pairing Agreement Amendment and, if
stockholder approval of the Stock Purchase Agreement is required under
applicable law or the rules of the NYSE, the Stock Purchase Agreement, at the
Patriot stockholders' meeting which will be held in accordance with the
provisions of Section 8.3 of the Merger Agreement. As of the date hereof, all
of the directors and executive officers of New Patriot have indicated that they
presently intend to vote all shares of New Patriot Stock which they own to
approve the Merger Agreement, the Patriot Ratification Agreement, the Pairing
Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE, the Stock
Purchase Agreement, at the Patriot stockholders' meeting. Subject to the
approval of the Merger Agreement, the Patriot Ratification Agreement, the
Pairing Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE, the Stock
Purchase Agreement, by the requisite vote of the stockholders of New Patriot,
the execution by New Patriot of this Agreement, the Merger Agreement and the
other Ancillary Agreements to which it is a party, and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite corporate action on the part of New Patriot. This Agreement and the
Merger Agreement constitute, and the other Ancillary Agreements to which it is
or will become a party (when executed and delivered) will constitute, the valid
and legally binding obligations of New Patriot, enforceable against New Patriot
in accordance with their respective terms, subject to applicable bankruptcy,
moratorium or other similar laws relating to creditors' rights and general
principles of equity.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF WYNDHAM
Wyndham represents and warrants to Patriot Operating Company, New
Patriot and the Principal Stockholder as follows:
3.1 Existence, Good Standing, Authority. Wyndham is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, operate,
lease and encumber its properties and to carry on its business as now
conducted.
3.2 Authorization, Validity and Effect of Agreement. Wyndham has the
requisite power and authority to enter into the transactions contemplated
hereby and to execute and deliver this Agreement and the other Ancillary
Agreements to which it is or will be a party. The Board of Directors of Wyndham
has approved this Agreement, the Merger, the other Ancillary Agreements to
which it is a party and the transactions contemplated hereby and thereby, and
has agreed to recommend that the holders of Wyndham Stock authorize and
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approve the Merger Agreement and the Patriot Ratification Agreement at the
Wyndham stockholders' meeting which will be held in accordance with the
provisions of Section 8.3 of the Merger Agreement. In connection with the
foregoing, the Board of Directors of Wyndham has taken such action and votes as
are necessary on its part to render the provisions of Section 203 of the
Delaware General Corporation Law (the "DGCL") and all other applicable takeover
statutes inapplicable to this Agreement, the Merger Agreement, the Merger, the
Stock Purchase Agreement, the Stock Purchase and the transactions contemplated
hereby and thereby and by the other Ancillary Agreements. As of the date
hereof, all of the directors and executive officers of Wyndham have indicated
that they presently intend to vote all shares of Wyndham Common Stock which
they own to approve the Merger Agreement and the Patriot Ratification Agreement
at the Wyndham stockholders' meeting. Subject to the approval of the Merger
Agreement and the Patriot Ratification Agreement by the requisite vote of the
stockholders of Wyndham, the execution by Wyndham of this Agreement, the Merger
Agreement and the other Ancillary Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action on the part of Wyndham. This
Agreement and the Merger Agreement constitute, and the other Ancillary
Agreements to which it is or will become a party (when executed and delivered)
will constitute, the valid and legally binding obligations of Wyndham,
enforceable against Wyndham in accordance with their respective terms, subject
to applicable bankruptcy, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL
STOCKHOLDER
The Principal Stockholder represents and warrants to Patriot Operating
Company, New Patriot and Wyndham as follows:
4.1 Organization and Good Standing. The Principal Stockholder is duly
organized, validly existing and in good standing under the laws of the State of
Texas.
4.2 Power and Authorization. The Principal Stockholder has full legal
right, power and authority to enter into and perform its obligations under this
Agreement and the other agreements and documents required to be delivered by it
hereunder. The execution, delivery and performance by the Principal Stockholder
of this Agreement have been duly authorized by all necessary action on the part
of the Principal Stockholder. This Agreement constitutes the legal, valid and
binding obligation of the Principal Stockholder, enforceable against it in
accordance with its terms.
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ARTICLE 5. COVENANTS AND AGREEMENTS OF PATRIOT OPERATING
COMPANY
5.1 Covenants and Agreements under Merger Agreement. Patriot Operating
Company hereby covenants and agrees with Wyndham and New Patriot that Patriot
Operating Company will be bound by and will perform each covenant and agreement
set forth in the Merger Agreement (including those relating to the assumption
by New Patriot or Patriot Operating Company of Wyndham Stock Options in
accordance with Section 5.2(e) of the Merger Agreement) that by its terms is to
be agreed to, or performed by, Patriot Operating Company to the same extent as
if each such covenant and agreement were set forth herein. Each such covenant
and agreement shall be deemed to be incorporated by reference herein as if set
forth in full in this Agreement.
5.2 Ancillary Agreements. At or prior to the Closing, Patriot
Operating Company shall execute and deliver each of the Ancillary Agreements to
which it is a party that, pursuant to Section 1.4 of the Merger Agreement, is
to be executed and delivered by it at or prior to the Closing.
Contemporaneously with the execution and delivery of this Agreement, Patriot
Operating Company shall execute and deliver the Standstill Agreement, the
Registration Rights Agreement and the Voting Agreements.
5.3 Patriot Operating Company Shares Issuable in Connection with the
Merger. Patriot Operating Company acknowledges and agrees that the shares of
Patriot Operating Company Stock to be issued pursuant to the Wyndham/Patriot
Operating Company Subscription Agreement will be issued in accordance with
Section 5.2(a) of the Merger Agreement to the stockholders of Wyndham in
connection with the Merger and will be paired with the Patriot Stock issued in
the Merger in accordance with the Pairing Agreement and the Wyndham/Patriot
Operating Company Subscription Agreement, and will be transferable and traded
only as a single unit, and that Wyndham shall not at any time become a
stockholder of Patriot Operating Company. The provisions of this Section 5.3
and the Wyndham/Patriot Operating Company Subscription Agreement are intended
to comply with Sections 2(a) and 2(b) of the Pairing Agreement.
5.4 Patriot Operating Company Shares Issuable in Connection with the
Stock Purchase. Patriot Operating Company acknowledges and agrees with the
Principal Stockholder that on the closing date of the Stock Purchase, Patriot
Operating Company shall issue to the Principal Stockholder the shares of
Patriot Operating Company Stock that are issuable in connection with the
issuance of Paired Shares to the Principal Stockholder pursuant to the Stock
Purchase Agreement, that upon conversion of the Unpaired Patriot Stock in
accordance with the terms thereof (as described in Exhibit B thereto) Patriot
Operating Company shall issue to the Principal Stockholder the shares of
Patriot Operating Company Stock that are issuable to the Principal Stockholder
upon such conversion, and that such shares
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of Patriot Operating Company Stock will be paired with the Patriot Stock issued
in the Stock Purchase or upon conversion of the Unpaired Patriot Stock in
accordance with the Pairing Agreement. The provisions of this Section 5.4 and
the Stock Purchase Agreement are intended to comply with Sections 2(a) and 2(b)
of the Pairing Agreement.
5.5 Patriot Operating Company Bylaws. Patriot Operating Company shall
cause its Bylaws as in effect immediately prior to the Effective Time to
contain terms required by and consistent with the Merger Agreement, the Stock
Purchase Agreement and the Cooperation Agreement and terms not otherwise
prohibited from being contained in such bylaws by such agreements.
5.6 Directors and Officers of Patriot Operating Company. Patriot
Operating Company shall take such actions as are necessary such that the Board
of Directors of Patriot Operating Company shall be constituted as provided in
Sections 4.3 and 4.4 of the Merger Agreement, subject to any required approvals
by the stockholders of Patriot Operating Company.
5.7 Further Action. Patriot Operating Company shall, subject to the
fulfillment at or before the Effective Time of each of the conditions set forth
in the Merger Agreement to the obligation of New Patriot to effect the Merger
or the waiver thereof, perform such further acts and execute such documents as
may reasonably be required to effect the Merger, the Patriot Operating Company
Stock Issuance, the Patriot Operating Company Charter Amendment, the Pairing
Agreement Amendment and the transactions contemplated by the Merger Agreement,
the Stock Purchase Agreement, this Agreement and by the other Ancillary
Agreements.
5.8 Expenses. All costs and expenses incurred by Patriot Operating
Company in connection with this Agreement, the Merger Agreement, the Stock
Purchase Agreement and the transactions contemplated hereby and thereby shall
be paid by Patriot Operating Company except to the extent otherwise provided in
Section 8.11 of the Merger Agreement or as otherwise may be agreed to by the
parties. All costs and expenses for professional services rendered in
connection with the transactions contemplated by this Agreement, the Merger
Agreement and the transactions contemplated thereby, including, but not limited
to, investment banking and legal services, will be paid by each party incurring
such costs and expenses.
ARTICLE 6. COVENANTS AND AGREEMENTS OF NEW PATRIOT
New Patriot covenants and agrees with Wyndham, Patriot Operating
Company and the Principal Stockholder that New Patriot will be bound by the
provisions of the Merger Agreement and the Stock Purchase Agreement under which
it is required to render performance to or for the benefit of Patriot Operating
Company, and that New Patriot will
9
<PAGE> 10
perform all such obligations in accordance with the terms of the Merger
Agreement and the Stock Purchase Agreement.
ARTICLE 7. COVENANTS AND AGREEMENTS OF WYNDHAM
Wyndham covenants and agrees with Patriot Operating Company, New
Patriot and the Principal Stockholder that Wyndham will be bound by the
provisions of the Merger Agreement under which it is required to render
performance to or for the benefit of Patriot Operating Company, and that
Wyndham will perform all such obligations in accordance with the terms of the
Merger Agreement.
ARTICLE 8. COVENANTS AND AGREEMENTS OF THE PRINCIPAL STOCKHOLDER
The Principal Stockholder covenants and agrees with Patriot Operating
Company, New Patriot and Wyndham that the Principal Stockholder will be bound
by the provisions of the Stock Purchase Agreement under which it is required to
render performance to or for the benefit of Patriot Operating Company, and that
the Principal Shareholder will perform all such obligations in accordance with
the terms of the Stock Purchase Agreement.
ARTICLE 9. TERMINATION; AMENDMENT; WAIVER
9.1 Termination. If the Merger Agreement has been terminated, this
Agreement may be terminated and abandoned, at any time prior to the Effective
Time, whether before or after approval of the matters contemplated hereby by
the stockholders of Patriot Operating Company, New Patriot and Wyndham, by the
party terminating the Merger Agreement in accordance with its terms.
9.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 9.1, this Agreement shall forthwith become
void and have no effect, without any liability or obligation on the part of
Patriot Operating Company, New Patriot, Wyndham or Principal Stockholder other
than the provisions of this Section 9.2, Section 5.7, the last sentence of
Section 10.3 and Section 10.4. Nothing contained in this Section 9.2 shall
relieve any party for any breach of the representations, warranties, covenants,
or agreements set forth in this Agreement.
9.3 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations
or other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this agreement or
10
<PAGE> 11
in any document delivered pursuant to this Agreement or (c) subject to the
first sentence of Section 10.5, waive compliance with any of the agreements or
conditions contained in this Agreement. Any Agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
ARTICLE 10. GENERAL PROVISIONS
10.1 Non-Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument pursuant to this Agreement shall not survive the Merger, provided,
however, that the agreements contained in Section 5.1, Article 6, Article 7 and
Article 8 (to the extent that any such agreements in Section 5.1, or Articles
6, 7 and 8 relate to any covenants in the Merger Agreement that survive the
Merger) and this Article 10 shall survive the Merger; and provided, further,
that all representations, warranties and covenants of Patriot Operating Company
herein made to or with the Principal Stockholder and of the Principal
Stockholder herein made to or with Patriot Operating Company shall survive the
Closing of the Stock Purchase.
10.2 Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) and addressed as follows:
If to Patriot Operating Company: Patriot American Hospitality
Operating Company
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
Attn: Paul A. Nussbaum
With copies to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
Attn: Gilbert G. Menna, P.C.
11
<PAGE> 12
If to New Patriot: Patriot American Hospitality, Inc.
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
Attn: Paul A. Nussbaum
With copies to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
Attn: Gilbert G. Menna, P.C.
If to Wyndham: Wyndham Hotel Corporation
2001 Bryan Street
Suite 2300
Dallas, TX 75201
Attn: James D. Carreker
With copies to: Locke Purnell Rain Harrell
2200 Ross Avenue
Suite 220
Dallas, TX 75201-6776
Attn: M. Charles Jennings
If to Principal Stockholder: CF Securities, L.P.
2001 Ross Avenue
Suite 3200
Dallas, Texas 75201
Attn: Ms. Susan T. Groenteman
Crow Family Holdings
2001 Ross Avenue
Suite 3200
Dallas, Texas 75201
Attn: M. Kevin Bryant
and:
12
<PAGE> 13
With copies to: Vinson & Elkins L.L.P.
2001 Ross Avenue
Suite 3700
Dallas, TX 75201
Attn: Derek R. McClain
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
delivered.
10.3 Assignment; Binding Effect; Benefit. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned prior
to the Closing by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, except
for the provisions of Section 5.1 and Articles 6 and 7 (to the extent Section
5.1 and Articles 6 and 7 relate to Sections 8.12 and 8.13 of the Merger
Agreement), nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
10.4 Entire Agreement. This Agreement, the Exhibits and the Patriot
Disclosure Letter and all provisions of the Merger Agreement incorporated
herein by reference and any documents delivered by the parties in connection
herewith constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings
among the parties with respect thereto. No addition to or modification of any
provision of this Agreement shall be binding upon any party hereto unless made
in writing and signed by all parties hereto.
10.5 Amendment. This Agreement may be amended by the parties hereto,
by action taken by their respective boards of directors or general partner, at
any time before or after approval of matters presented in connection herewith
to the stockholders of Patriot Operating Company, but after any such
stockholder approval, no amendment shall be made which by law requires the
further approval of stockholders without obtaining such further approval. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
10.6 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 conflict of laws. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of
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<PAGE> 14
America located in the State of Delaware (the "Delaware Courts") for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum.
10.7 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which so executed and delivered shall
be an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
10.8 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
10.9 Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and
vice versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
10.10 Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties,
covenants or agreements contained in this Agreement. The waiver by any party
hereto of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
10.11 Incorporation. The Patriot Disclosure Letter and the provisions
of the Merger Agreement are hereby incorporated herein and made a part hereof
for all purposes as if fully set forth herein.
10.12 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
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<PAGE> 15
10.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
thereof if any Delaware Court, this being in addition to any other remedy to
which they are entitled at law or in equity. Any requirements for the securing
or posting of any bond with respect to such remedy are hereby waived by each of
the parties hereto.
10.14 Certain Definitions. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings ascribed to them in
the Merger Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
15
<PAGE> 16
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
ATTEST PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By: /s/ WILLIAM W. EVANS III By: /s/ PAUL A. NUSSBAUM
--------------------------------- --------------------------------
Name William W. Evans III Name Paul A. Nussbaum
Title Office of the Chairman, Title Chairman and CEO
Patriot American Hospitality, Inc.
ATTEST WYNDHAM HOTEL CORPORATION
By: /s/ CARLA S. MORELAND By: /s/ ANNE L. RAYMOND
--------------------------------- --------------------------------
Name Carla S. Moreland Name Anne L. Raymond
Title Vice President, General Title Executive Vice President
Counsel and Secretary
ATTEST PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ WILLIAM W. EVANS III By: /s/ PAUL A. NUSSBAUM
--------------------------------- --------------------------------
Name William W. Evans III Name Paul A. Nussbaum
Title Office of the Chairman, Title Chairman, CEO and
Patriot American Hospitality, Inc. President
ATTEST CF SECURITIES, L.P.
By: /s/ MICHAEL BRYANT By: Mill Springs Holdings, Inc.
--------------------------------- its General Partner
Name Michael Bryant
Title Secretary
By: /s/ S. T. GROENTEMAN
--------------------------------
Name S. T. Groenteman
Title Executive Vice President
16
<PAGE> 1
EXHIBIT 10.38
===============================================================================
COOPERATION AGREEMENT
between
PATRIOT AMERICAN HOSPITALITY, INC.
and
PATRIOT AMERICAN HOSPITALITY OPERATING COMPANY
dated as of
_____________, 1997
===============================================================================
<PAGE> 2
TABLE OF CONTENTS
PAGE
----
RECITALS ....................................................................1
ARTICLE I - DEFINITIONS......................................................2
ARTICLE II - GENERAL COOPERATION AND COORDINATION............................6
2.1 General....................................................6
2.2 Joint Board Meetings.......................................6
2.3 Establishment of Cooperation Committee.....................6
2.4 Corporate Matters Categories...............................7
2.5 Consideration of Corporate Matters.........................7
2.6 Reconsideration Process....................................8
2.7 Change in Patriot's Line of Business.......................8
2.8 Hotel Acquisitions Committee...............................9
2.9 Limitation on Committees...................................9
2.10 Voting by Directors........................................9
ARTICLE III - ISSUANCE OF PAIRED AND UNPAIRED EQUITY........................10
3.1 General...................................................10
3.2 Authority to Issue Paired Equity..........................10
3.3 Procedures in Connection with Issuance of Paired Equity...11
3.4 Authority to Issue Unpaired Equity........................13
3.5 Procedures in Connection with Issuance of Unpaired
Equity....................................................13
3.6 Holders of Unpaired Equity................................13
3.7 Operating Partnership Redemption Provisions...............14
3.8 Ordinary Course...........................................14
3.9 Indemnification...........................................14
ARTICLE IV - INTERFERENCE EVENTS............................................14
4.1 Interference Events.......................................14
4.2 Removal of Directors......................................14
ARTICLE V - CHARTER AND BYLAW PROVISIONS....................................14
ARTICLE VI - EXCHANGE OF INFORMATION; CONFIDENTIALITY.......................15
6.1 Provision of Corporate Records; Agreement for
Exchange of Information...................................15
6.2 Ownership of Information..................................15
6.3 Compensation for Providing Information....................15
(i)
<PAGE> 3
ARTICLE VII - TERMINATION...................................................15
7.1 Termination by Mutual Consent.............................15
7.2 Other Termination.........................................16
7.3 Effect of Termination.....................................16
ARTICLE VIII - PATRIOT'S REMEDIES UNDER ARTICLES III AND IV.................16
ARTICLE IX - MISCELLANEOUS..................................................16
9.1 Counterparts; Entire Agreement; Corporate Power...........16
9.2 Governing Law.............................................16
9.3 Assignability.............................................17
9.4 Third Party Beneficiaries.................................17
9.5 Notices...................................................17
9.6 Severability..............................................18
9.7 Headings..................................................18
9.8 Waivers of Default........................................18
9.9 Amendments................................................18
9.10 Interpretation............................................18
9.11 Dispute Resolution........................................19
(ii)
<PAGE> 4
COOPERATION AGREEMENT
This COOPERATION AGREEMENT (this "Agreement"), is made and entered
into as of _________, 1997, between Patriot American Hospitality, Inc., a
Delaware corporation which operates as a real estate investment trust
("Patriot"), and Patriot American Hospitality Operating Company, a Delaware
corporation ("OPCO"). Certain terms used but not defined below have the
definitions set forth in Article I - Definitions.
RECITALS
WHEREAS, Patriot and Wyndham Hotel Corporation, a Delaware corporation
("Wyndham") entered into an Agreement and Plan of Merger dated as of April 14,
1997 (the "Merger Agreement") in which Patriot and Wyndham agreed to engage in
a business combination pursuant to which, at the Effective Time (as defined in
the Merger Agreement), Wyndham will merge with and into Patriot with Patriot
being the surviving corporation (the "Merger");
WHEREAS, immediately following the Merger, the shares of common stock,
par value $.01 per share, of OPCO (the "OPCO Paired Stock") and the shares of
common stock, par value $.01 per share, of Patriot (the "Patriot Paired Stock")
will be paired and transferable and traded only in combination as a single unit
on the New York Stock Exchange (together, the "Paired Shares");
WHEREAS, the parties to this Agreement (each a "Party" and, together,
the "Parties") have determined that it is necessary and desirable to set forth
the agreements and understandings that will govern certain matters that may
arise between Patriot and OPCO following the Merger, including, without
limitation, the issuance of Paired Equity;
WHEREAS, the Parties recognize that an essential and necessary
objective and purpose of this Agreement is to make clear and to provide
certainty that Patriot shall have the sole right and power to (a) authorize,
effect and control Issuances of Paired Equity and (b) control Issuances of
Unpaired Equity pursuant to the operations and authority of the Unpaired Equity
Committee, as provided for herein;
WHEREAS, in connection with the Merger the Board of Directors of each
of OPCO and Patriot (together, the "Boards") have resolved that, in the
business judgment of each of such Boards, the creation of a single corporate
mechanism for Issuances of Paired Equity will maximize the continued growth of
the Paired REIT Structure and overall shareholder value;
WHEREAS, OPCO acknowledges that any Issuance of Paired Equity requires
certain actions to be taken by OPCO and its Board of Directors that cannot be
effected by Patriot or its Board of Directors and that this Agreement requires
OPCO and its Board of Directors to take such actions at the request of Patriot
as set forth herein; and
<PAGE> 5
WHEREAS, the execution and delivery of this Agreement by the Parties
is a condition to the obligation of Wyndham to consummate the Merger, and the
acknowledgment and agreement to be bound by this Agreement by Wyndham is a
condition to the obligation of Patriot to consummate the Merger.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements set forth herein, the
parties hereto hereby agree as follows:
ARTICLE I - DEFINITIONS
As used in this Agreement, capitalized terms defined immediately after
their use shall have the respective meanings thereby provided and the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined):
"ACTION" means any demand, action, suit, countersuit, arbitration,
inquiry, proceeding or investigation by or before any federal, state, local,
foreign or international Governmental Authority or any arbitration or mediation
tribunal.
"AFFILIATE" of any Person means a Person that controls, is controlled
by, or is under common control with such Person. As used herein, "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of such entity, whether through
ownership of voting securities or other interests, by contract, or otherwise.
"BLUE SKY DOCUMENTS" means any and all applications, certificates and
other papers and documents necessary to comply with the applicable securities
laws of any states or jurisdiction of the United States, including but not
limited to, applications, notices, reports, surety bonds, proscribed forms of
preambles or resolutions relating to the sale of securities, irrevocable
consents and appointments of attorneys for service of process.
"CHANGE OF CONTROL" shall mean the occurrence, with respect to either
Patriot or OPCO, of any one of the following events (Patriot and OPCO being
referred to below, as the case may be, as the "Company"):
(i) any "person," as such term is used in Sections 13(d) and
14(d) of the Exchange Act (other than the Company or any trustee
fiduciary or other person or entity holding securities under any
employee benefit plan or trust of the Company, together with all
"affiliates" and "associates" (as such terms are defined in Rule 12b-2
under the Exchange Act) of such person, shall become the "beneficial
owner" (as such term is defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 50%
or more of either (A) the combined voting
2
<PAGE> 6
power of the Company's then outstanding securities having the right to
vote in an election of the Company's Board of Directors (the "Voting
Securities") or (B) the then outstanding Paired Shares (in either such
case other than as a result of an acquisition of securities directly
from the Company); or
(ii) (A) any consolidation or merger of the Company where the
stockholders of the Company, immediately prior to the consolidation or
merger, would not, immediately after the consolidation or merger,
beneficially own (as such term is defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, securities representing in the
aggregate 50% or more of the voting securities of the corporation
issuing cash or securities in the consolidation or merger (or of its
ultimate parent corporation, if any), (B) any sale, lease, exchange or
other transfer (in one transaction or a series of transactions
contemplated or arranged by any party as a single plan) of all or
substantially all of the assets of the Company or (C) any plan or
proposal for the liquidation or dissolution of the Company.
Notwithstanding the foregoing, a "Change of Control" shall
not be deemed to have occurred for purposes of the foregoing clause
(i) solely as the result of an acquisition of securities by the
Company which, by reducing the number of Paired Shares or other Voting
Securities outstanding, increases (x) the proportionate number of
Paired Shares beneficially owned by any person to 50% or more of the
Paired Shares then outstanding or (y) the proportionate voting power
represented by the Voting Securities beneficially owned by any person
to 50% or more of the combined voting power of all then outstanding
Voting Securities; provided, however, that if any person referred to
in clause (x) or (y) of this sentence shall thereafter become the
beneficial owner of any additional Paired Shares or other Voting
Securities (other than pursuant to a stock split, stock dividend, or
similar transaction), then a "Change of Control" shall be deemed to
have occurred for purposes of the foregoing clause (i).
"CHANGE IN PATRIOT'S LINE OF BUSINESS" shall mean an action by Patriot
or Patriot OP (as hereinafter defined) with respect to Patriot's or Patriot
OP's business that results in the consolidation for financial reporting
purposes of the results of operations of Patriot with those of any business
activity other than hospitality and hospitality-related businesses.
"CODE" means the Internal Revenue Code of 1986, as amended.
"CONSENTS" means any consents, waivers or approvals from, or
notification requirements to, any third parties.
"CROW OWNERSHIP THRESHOLD" means beneficial ownership of at least five
percent (5%) of the lesser of (x) the sum of (i) the number of then outstanding
Paired Shares and (ii) the number of then outstanding shares of Unpaired
Preferred Stock, or (y) the sum of (i) the number of Paired Shares outstanding
immediately after the Merger and (ii) the number of
3
<PAGE> 7
shares of Unpaired Preferred Stock outstanding immediately after the Merger
(the lesser of (x) and (y) being the "Sum") (provided, however, that in the
event the Standstill Agreement of even date herewith between Patriot and CF
Securities, L.P. is no longer in effect, then the Sum shall be (x),
irrespective of the number of shares computed pursuant to (y)).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GOVERNMENTAL APPROVALS" means any notices, reports or other filings
to be made, or any consents, registrations, approvals, permits or
authorizations to be obtained from, any Governmental Authority.
"GOVERNMENTAL AUTHORITY" means any federal, state, local, foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"INFORMATION" means information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or intangible
forms, stored in any medium, including studies, reports, records, books,
contracts, instruments, surveys, discoveries, ideas, concepts, know-how,
techniques, designs, specifications, drawings, blueprints, diagrams, models,
prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer names,
communications by or to attorneys (including attorney-client privileged
communications), memos and other materials prepared by attorneys or under their
direction (including attorney work product), and other technical, financial,
employee or business information or data.
"ISSUANCE OF PAIRED EQUITY" means a private or public offering, sale,
issuance or delivery of, or agreement to commit to offer, sell, issue or
deliver (whether through the issuance or granting of options, warrants,
commitments, subscriptions, rights to purchase or otherwise) any stock of any
class or any other debt or equity securities of OPCO (including, without
limitation, indebtedness having the right to vote, indebtedness convertible
into any equity of any class or any other securities) or limited partnership
interests or units of [OPCO OPERATING PARTNERSHIP] ("OPCO OP")), or equity
equivalents of either (including, without limitation, stock appreciation
rights), if it is contemplated that such stock or other securities, or any
securities underlying such stock or other securities, would or could be paired
with Patriot Stock (as defined in the Merger Agreement) or any other securities
of Patriot, or, in the case of limited partnership interests or units of OPCO
OP, it is contemplated that such interests or units would be economically (or
otherwise) "paired" (even if not pursuant to the Pairing Agreement (as defined
in the Merger Agreement)) with the limited partnership interests or units of
[PATRIOT OPERATING PARTNERSHIP] ("Patriot OP"). Issuance of Paired Equity shall
also mean the related issuance by Patriot or Patriot OP of the securities of
Patriot or Patriot OP which are paired with the securities of OPCO or OPCO OP.
4
<PAGE> 8
"ISSUANCE OF UNPAIRED EQUITY" means, in the case of OPCO, a public or
private offering, sale, issuance, delivery or agreement to commit to offer,
sell, issue or deliver (whether through the issuance or granting of options,
warrants, commitments, subscriptions, rights to purchase or otherwise) any and
all securities described in the immediately preceding definition of "Issuance
of Paired Equity" if it is contemplated that such stock or other securities, or
any securities underlying such stock or other securities, would NOT or could
NOT be paired with Patriot Stock (as defined in the Merger Agreement) or, in
the case of limited partnership interests or units of OPCO OP, it is
contemplated that such interests or units would NOT or could NOT economically
(or otherwise) be "paired" with the limited partnership interests or units of
Patriot OP. "Issuance of Unpaired Equity" means, in the case of Patriot, a
public or private offering, sale, issuance or delivery of, or agreement to
commit to offer, sell, issue or deliver (whether through the issuance or
granting of options, warrants, commitments, subscriptions, rights to purchase
or otherwise), any stock of any class or any other debt or equity securities of
Patriot (including, without limitation, indebtedness having the right to vote
and indebtedness convertible into any equity of any class or any other
securities) or limited partnership interests or units of [PATRIOT OPERATING
PARTNERSHIP] ("Patriot OP"), or equity equivalents of either (including,
without limitation, stock appreciation rights), if it is contemplated that such
stock or other securities, or any securities underlying such stock or other
securities, would NOT or could NOT be paired with OPCO Stock (as defined in the
Merger Agreement) or any other securities of OPCO or, in the case of limited
partnership interests or units of Patriot OP, it is contemplated that such
interests or units would NOT or could NOT be economically (or otherwise)
"paired" (even if not pursuant to the Pairing Agreement (as defined in the
Merger Agreement)) with the limited partnership interests or units of OPCO OP.
"PAIRED EQUITY OFFICER/DIRECTOR" means any officer or officers of
Patriot designated by Patriot, from time to time, to be a Paired Equity
Officer/Director pursuant to Section 3.2(a) hereof.
"PAIRED REIT STRUCTURE" means the effectively consolidated structure
of Patriot and OPCO as a result of the paired nature of the Paired Shares.
"PERSON" means an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a
limited liability entity, any other entity and any Governmental Authority.
"REGISTRATION STATEMENT" means any registration statement under the
Securities Act that covers any Paired Equity, including the related prospectus,
all amendments and supplements to such registration statement (including
post-effective amendments), all exhibits and all material incorporated by
reference or deemed to be incorporated by reference in such registration
statement.
"SEC" means the United States Securities and Exchange Commission.
5
<PAGE> 9
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SUBSIDIARY" or "SUBSIDIARIES" when used with respect to any party
means any corporation, partnership, joint venture, business trust or other
entity, of which such party directly or indirectly owns or controls at least a
majority of the securities or other interests having by their terms ordinary
voting power to elect a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization.
"UNPAIRED PREFERRED STOCK" means shares of unpaired preferred stock,
par value $.01 per share, of Patriot.
"UNPAIRED EQUITY COMMITTEE" means that committee whose members shall
consist of (i) the Chairman of Patriot's Board of Directors, (ii) the Chairman
of OPCO' Board of Directors, (iii) two designees of Patriot from either
Patriot's or OPCO' Board of Directors and (iv) one designee of OPCO from either
Patriot's or OPCO' Board of Directors. Upon consummation of the Merger, the
members of the Unpaired Equity Committee shall consist of (i) Paul A. Nussbaum
until such time as he shall no longer serve as Chairman of Patriot's Board of
Directors and, after such time, the Chairman of Patriot's Board of Directors,
(ii) James Carreker until such time as he shall no longer serve on OPCO' Board
of Directors and, after such time, the Chairman of OPCO' Board of Directors,
(iii) two designees of Patriot from either Patriot's or OPCO' Board of
Directors and (iv) one designee of OPCO from either Patriot's or OPCO' Board of
Directors, which shall have the sole and exclusive authority to authorize OPCO'
Issuance of Unpaired Equity.
ARTICLE II - GENERAL COOPERATION AND COORDINATION
2.1 General. Patriot and OPCO hereby agree that it is in the best
interests of both entities and their shareholders that they cooperate to the
fullest extent possible in the conduct of their respective operations. In that
regard, Patriot and OPCO hereby agree to take all necessary action to preserve
the Paired REIT Structure and to maximize the economic and tax advantages
associated therewith.
2.2 Joint Board Meetings. In furtherance of the foregoing,
meetings of the Boards of Directors of Patriot and OPCO may be held jointly if
their respective Chairmen so decide.
2.3 Establishment of Cooperation Committee. Patriot and OPCO hereby
agree to establish, as promptly as practicable following the closing of the
Merger, a committee (the "Cooperation Committee") consisting of (i) the
Chairman of Patriot's Board of Directors (who shall be the Chairman of the
Cooperation Committee), (ii) the Chairman of OPCO' Board of Directors, (iii) a
designee of the Chairman of Patriot's Board of Directors reasonably acceptable
to OPCO (who shall serve at the pleasure of Patriot's Chairman and may be
removed and replaced at any time); provided, however, that for purposes of the
foregoing, OPCO acknowledges that Karim Alibhai is a reasonably acceptable
designee, and (iv) the
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President of OPCO. Initially, the Cooperation Committee will consist of Paul A.
Nussbaum (as committee Chairman), James Carreker, Karim Alibhai (as the
designee of Patriot's Chairman) and William Evans. The Cooperation Committee
will normally consider and propose the agenda listing the matters to be
considered at any joint meeting of the Boards of Directors of Patriot and OPCO,
subject to the right of a Board member to request consideration of additional
matters. The Cooperation Committee shall establish such procedures for the
conduct of its business as it shall deem appropriate from time to time.
2.4 Corporate Matters Categories. All matters to be considered by
the Boards, except a Change in Line of Business, Issuances of Paired Equity and
Issuances of Unpaired Equity, shall be classified into the most appropriate of
the following three categories:
(a) Routine corporate governance matters, such as approval
and retention of independent accountants, the fixing of employee compensation
and other like matters (each, a "Category 1 Matter");
(b) All other matters, other than a Change of Control and,
after the third anniversary of the Merger, all other matters including a Change
of Control (each, a "Category 2 Matter); and
(c) Any proposed action by Patriot or OPCO, as the case may
be, that would result in a Change of Control, until the third anniversary of
the Merger (each, a "Category 3 Matter").
2.5 Consideration of Corporate Matters.
(a) At any meeting of the Board of Directors of Patriot or
OPCO (whether or not held jointly), each of Patriot and OPCO, as the case may
be, may (the Board submitting any matter being referred to herein as the
"Proposing Board") (i) submit a Category 1 Matter to the consideration and vote
of its Board, irrespective of any consideration by the other Board, (ii) submit
a Category 2 Matter to the consideration and vote of its Board, with such
matter requiring the majority vote of its Board for approval (except for the
removal of the Chief Executive Officer of either Patriot or OPCO, which shall
be a Category 2 Matter, but which shall require a 662/3% vote of Patriot's
Board or OPCO' Board, as the case may be), and (iii) submit a Category 3 Matter
to the consideration and vote of its Board, with such matter requiring a 662/3%
vote of its Board for approval until the third anniversary of the Merger, after
which time a Category 3 Matter shall become a Category 2 Matter.
(b) If the Proposing Board at any such meeting that is not held
jointly (the "Proposing Board Meeting") shall have approved any Category 2
Matter or Category 3 Matter, such Proposing Board shall promptly provide notice
(the "Proposing Board Notice") to the Chairman of the other company's Board of
the occurrence of such meeting and the Category 2 Matters or Category 3 Matters
approved at such meeting. The Cooperation
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Committee shall convene promptly (in any event, within ten (10) business days)
following the Proposing Board Meeting to consider the actions taken by the
Proposing Board. If the Cooperation Committee approves the action taken by the
Proposing Board with respect to any such matter, then the Proposing Board may
take such action without consideration of such matter by the other Board. If
the Cooperation Committee does not approve the action taken by the Proposing
Board, the other company's Board (the "Responding Board") may then hold a
meeting within fifteen (15) business days following receipt of the Proposing
Board Notice to consider and vote upon the Category 2 Matters or Category 3
Matters approved by the Proposing Board and during such period the Proposing
Board may not take action with respect to such matters. In the event that the
Responding Board approves at such a meeting the action taken by the Proposing
Board or the Responding Board does not hold a meeting within fifteen (15)
business days following receipt of the Proposing Board Notice, the Proposing
Board may take such action without consideration of such matter by the
Responding Board.
(c) In the event the Responding Board holds a meeting within
fifteen (15) business days following receipt of the Proposing Board Notice but
does not approve the action taken by the Proposing Board, the Proposing Board
may not take action with respect to such matter. The Cooperation Committee will
convene promptly following the meeting of the Responding Board to consider the
contrary positions of the Proposing Board and the Responding Board and
recommend a resolution of such contrary positions in connection with the
Reconsideration Process described below. The Boards will then follow the
Reconsideration Process.
(d) At any joint meeting of the Boards of Directors of Patriot
and OPCO, in the event that the Proposing Board approves a Category 2 Matter or
Category 3 Matter but the other Board does not, the Proposing Board may not
take action with respect to such matter. The Cooperation Committee shall
convene following the joint meeting to consider the votes of the Boards taken
at such meeting. The Boards will then follow the Reconsideration Process
described below.
2.6 Reconsideration Process. Any Proposing Board may reconsider a
Category 2 Matter at any subsequent meeting of such Board and, if the Proposing
Board approves such matter by a majority vote at such subsequent meeting, then
the Proposing Board may take the action contemplated by such matter regardless
of the position of the other Board. The Proposing Board may reconsider a
Category 3 Matter at any subsequent meeting of such Board and, if the Proposing
Board approves such matter by a 662/3% vote at such subsequent meeting, then
the Proposing Board may take the action contemplated by such matter, but only
if the other Board approves such matter by a majority vote.
2.7 Change in Patriot's Line of Business. Until the third
anniversary of the Merger, any Change in Patriot's Line of Business shall
require a 66 2/3% vote of Patriot's Board and a majority vote of OPCO' Board
for approval.
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2.8 Hotel Acquisitions Committee. Patriot's Board of Directors shall
constitute and establish a hotel acquisitions committee (the "Hotel
Acquisitions Committee") promptly following the Effective Time to analyze,
evaluate and consider potential acquisitions by Patriot of hotel properties and
related assets (which properties and related assets may consist of a portfolio
of hotel properties and related assets) ("Hotel Acquisitions"). The Hotel
Acquisitions Committee shall have the power and authority to cause Patriot to
enter into a binding agreement with respect to Hotel Acquisitions involving a
proposed purchase price (inclusive of any indebtedness to be assumed in
connection therewith) not exceeding (with respect to each Hotel Acquisition or
such series of Hotel Acquisitions as are reasonably likely to be considered an
integrated transaction) $___ million. The Hotel Acquisitions Committee shall
consist of Paul Nussbaum, James Carreker and one of the Patriot Designees (as
defined in the Merger Agreement) selected by Wyndham immediately prior to the
Effective Time and reasonably satisfactory to Patriot (the "Wyndham Committee
Designee"). In the event that Paul Nussbaum fails to serve or continue to serve
on the Hotel Acquisitions Committee for any reason, Patriot's Board of
Directors shall have the right to select an individual to replace Mr. Nussbaum,
provided that such individual shall be reasonably satisfactory to James
Carreker, Harlan Crow (so long as Family Securities L.P. continues to meet the
Crow Ownership Threshold) and the Wyndham-OPCO Designees (as defined in the
Merger Agreement) other than James Carreker (with respect to each such
designee, so long as such designee continues to serve on the Board of Directors
of either Patriot or OPCO). In the event that either James Carreker or a
Wyndham Committee Designee fails to serve or continue to serve on the Hotel
Acquisitions Committee for any reason, Harlan Crow (so long as CF Securities,
L.P. continues to meet the Crow Ownership Threshold) and the remaining
Wyndham-OPCO Designees (with respect to each such designee, so long as such
designee continues to serve on the Board of Directors of either Patriot or
OPCO) shall have the right to select an individual to replace Mr. Carreker or
such Wyndham Committee Designee; provided, however, that a Wyndham Committee
Designee may only be replaced by an individual who is also a Patriot Designee;
and provided, further, that in any case such individual shall be reasonably
satisfactory to Patriot's Board of Directors. Notwithstanding the foregoing,
the Hotel Acquisitions Committee shall no longer have the power and authority
described herein on and after the third anniversary of the Merger.
2.9 Limitation on Committees. The Parties hereby agree that, for the
term of this Agreement, neither will form either (i) an executive or similar
committee of its Board of Directors which is authorized to act upon any
Category 2 Matter or Category 3 Matter or (ii) a nomination committee for the
purpose of nominating directors.
2.10 Voting by Directors. Any vote on any matter by the Board of
Directors of either Patriot or OPCO shall require for approval the affirmative
vote of the applicable number or percentage of all of the members of either
such Board of Directors.
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ARTICLE III - ISSUANCE OF PAIRED AND UNPAIRED EQUITY
3.1 General. The parties hereto recognize the paramount importance of
preserving the Paired REIT Structure and have negotiated in good faith the
provisions of this Agreement in such a manner so as to maximize the current and
continued value of such structure by delegating authority to Patriot to decide
all matters relating to raising capital through an Issuance of Paired Equity
and by delegating authority to the Unpaired Equity Committee as set forth
herein to decide all matters relating to raising capital through an Issuance of
Unpaired Equity. OPCO hereby acknowledges that any Issuance of Paired Equity
requires certain actions to be taken by OPCO and its Board of Directors that
cannot be effected by Patriot or its Board of Directors. OPCO hereby agrees to
take any and all such actions, including, without limitation, those actions set
forth in Section 3.3 hereof, as are deemed by Patriot to be necessary and
appropriate to effect any such Issuance of Paired Equity.
3.2 Authority to Issue Paired Equity.
(a) The Parties hereby agree that, from and after the date
hereof until the date (the "Termination Date") [which is twelve (12) months
after the date] on which the Pairing Agreement (as defined in the Merger
Agreement) is no longer in effect, Patriot shall have the sole right to
authorize and to effect an Issuance of Paired Equity and to take any and all
action in contemplation of, or in connection with, an Issuance of Paired
Equity, and OPCO' certificate of incorporation and bylaws shall so provide. In
connection therewith, Patriot shall also have the authority to cause OPCO to
comply with the procedures set forth in Section 3.3 hereof.
(b) Patriot shall be entitled to designate from time to time
one or more officers of Patriot to serve as a Paired Equity Officer/Director.
The Board of Directors of OPCO shall appoint any such Paired Equity
Officer/Director to the positions of vice president and assistant secretary of
OPCO and take all action required by OPCO' Board of Directors to cause any such
Paired Equity Officer/Director to hold such positions at all times throughout
the term of this Agreement. Any Paired Equity Officer/Director may resign or be
removed by Patriot at any time and, at any time thereafter, Patriot may
designate a new Paired Equity Officer/Director. Any Paired Equity
Officer/Director shall have the express authority to do any and all acts and
things related to any Issuance of Paired Equity, including, without limitation,
the execution and delivery in the name and on behalf of OPCO of any and all
documents, certificates (including stock certificates) and other instruments
necessary or appropriate in connection with the issuance of any OPCO Paired
Stock pursuant to an Issuance of Paired Equity, the engagement of investment
bankers, accountants, attorneys and other professionals, and the incurrence of
any and all other transaction costs related thereto.
(c) OPCO hereby covenants and agrees to, and shall at all
times and in all circumstances maintain and support the position that, Patriot
has the sole right and power to authorize and effect the Issuance of Paired
Equity and OPCO hereby further covenants,
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warrants and agrees not to assert otherwise in any forum, proceeding, Action or
communication.
(d) OPCO hereby expressly waives, disclaims and releases any
and all claims, causes of action, rights, defenses and arguments that any
Issuance of Paired Equity approved by Patriot in any way violates or infringes
any rights that OPCO or its past, present or future officers, directors,
employees, shareholders or affiliates may have, including, without limitation,
that any Issuance of Paired Equity approved by Patriot in any way breaches,
violates or infringes any fiduciary duties, duties of one shareholder to
another, partnership duties, joint venturer duties, or any other duties or
obligations that may exist or exist in the future; provided, that nothing
herein shall be, or be asserted to be, an admission that any such duties exist.
OPCO further expressly disclaims, and agrees not to assert that, any such
duties or obligations exist in any way that would interfere with the sole
rights of Patriot with respect to the Issuance of Paired Equity.
3.3 Procedures in Connection with Issuance of Paired Equity.
(a) Patriot shall give notice (an "Issuance Notice") to OPCO
as promptly as practicable of each determination by Patriot to engage in an
Issuance of Paired Equity. Such Issuance Notice shall include the proposed
material terms of such issuance, to the extent determined by Patriot, including
whether such issuance is proposed to be pursuant to a public or private
offering, the amount of Paired Equity proposed to be issued, and the manner of
determining the offering price thereof.
(b) Upon receipt of an Issuance Notice, OPCO and the
Directors of OPCO shall promptly cooperate with Patriot in every way to effect
such Issuance of Paired Equity pursuant to the terms and schedule thereof as
established by Patriot, including, without limitation, the following:
(i) Making available such members of OPCO'
management as shall be requested by Patriot to
assist in effecting such Issuance of Paired
Equity;
(ii) In connection with a public offering of Paired
Equity, (A) assisting in the preparation of
and (B) executing and filing with the SEC, a
Registration Statement or Registration
Statements under the Securities Act, including
the prospectus contained therein and any
amendments or supplements thereto, or any
other statements, forms or documents required
to be executed pursuant to law or regulation
with respect to such Issuance of Paired
Equity, and, in connection therewith,
providing Patriot with such information,
including financial statements, market
studies, environmental and engineering reports
and other data, as may be
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required to be included in such Registration
Statement pursuant to the terms of the
Securities Act;
(iii) Promptly notifying Patriot of any information
that comes to the attention of OPCO which
affects or could affect such Issuance of
Paired Equity, including, without limitation,
the occurrence of any event which makes any
statement made in such Registration Statement
or related prospectus or any document
incorporated or deemed to be incorporated
therein by reference or in any other offering
document with respect to such Issuance of
Paired Equity untrue in any material respect
or which requires the making of any changes in
such Registration Statement, prospectus or any
such offering document so that, in the case of
the Registration Statement, it will not
contain any untrue statement of a material
fact or omit to state any material fact
required to be stated therein or necessary to
make the statements therein not misleading
and, in the case of the prospectus or any
other offering document, it will not contain
any untrue statement of a material fact or
omit to state any material fact required to be
stated or necessary to make the statements
therein, in light of the circumstances under
which they were made, not misleading;
(iv) Cooperating with Patriot in the preparation,
execution and filing of any Blue Sky
Documents;
(v) Cooperating with Patriot to facilitate the
timely preparation and delivery of
certificates, if any, representing Paired
Equity;
(vi) Obtaining any consents, approvals or
authorizations of Governmental Authorities and
other third parties as are necessary in
connection with such Issuance of Paired
Equity;
(vii) In connection with any underwritten public
offering, cause appropriate members of OPCO'
management to cooperate and participate on a
reasonable basis in the underwriters' "road
show" conferences related to such offering;
and
(viii) Performing any and all other acts and
executing and delivering any and all other
certificates, instruments and other documents
as shall be requested by Patriot to effect any
such Issuance of Paired Equity.
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(c) Upon any Issuance of Paired Equity, the Parties hereby
agree that the net proceeds therefrom shall be allocated as follows:
[TO BE COMPLETED]
(d) From time to time, OPCO may request that Patriot effect
an Issuance of Paired Equity in connection with employee benefit plans, other
forms of incentive compensation and other arrangements or commitments of OPCO.
To the extent that Patriot approves in writing any such plan, arrangement or
commitment, Patriot hereby agrees that it will either (A) issue the Patriot
Paired Stock which forms a part of the Paired Equity when the Paired Equity is
required to be issued pursuant to the terms of any such plan, arrangement or
commitment or (B) indemnify OPCO to the fullest extent permitted under
applicable law from and against any and all Damages (as hereinafter defined) of
OPCO which may arise out of any failure by Patriot to issue such Patriot Paired
Stock.
3.4 Authority to Issue Unpaired Equity. From and after the date hereof
until the Termination Date, each of Patriot and OPCO shall have the right to
engage in an Issuance of Unpaired Equity in accordance with and pursuant to the
procedures contained in Section 3.5 of this Agreement, and to take any and all
action in contemplation of, or in connection with, an Issuance of Unpaired
Equity, including, without limitation, filing a Registration Statement and Blue
Sky Documents and any and all other filings, documents, exhibits, and all
material required to be incorporated by reference or which are deemed
incorporated by reference therein, whether filed pursuant to federal or state
securities laws or otherwise, necessary to effect such Issuance of Unpaired
Equity in accordance with applicable securities laws.
3.5 Procedures in Connection with Issuance of Unpaired Equity.
(a) OPCO shall have the right to engage in an Issuance of
Unpaired Equity upon the affirmative vote of a majority of the members of the
Unpaired Equity Committee.
(b) Patriot shall have the right to engage in an Issuance of
Unpaired Equity upon the affirmative vote of a majority of the members of its
Board of Directors.
3.6 Holders of Unpaired Equity. Whenever, from time to time, there
shall be outstanding any class of equity securities of Patriot, OPCO or any of
their respective subsidiaries, which securities are not paired with
corresponding securities of the other company or its subsidiaries, but are
convertible or exchangeable into or for Paired Shares (including, without
limitation, the Unpaired Preferred Stock issued to CF Securities, L.P. on the
date hereof) (the "Unpaired Shares"), then, so long as any such Unpaired Shares
were issued in accordance with the terms of this Agreement, Patriot and OPCO
shall issue the Patriot Paired Stock or the OPCO Paired Stock, as the case may
be, underlying such Unpaired Shares in accordance with the terms thereof. The
covenants of Patriot and OPCO set forth in this Section 3.6 are made for the
benefit of the holders of such Unpaired Shares and such holders shall be
express third-party beneficiaries thereof. The Unpaired Preferred Stock
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issued to CF Securities, L.P. shall be deemed to have been issued in accordance
with the terms of this Agreement.
3.7 Operating Partnership Redemption Provisions.
Patriot's Operating Partnership shall make all determinations
with respect to whether to pay cash or deliver paired equity to limited
partners of Patriot's Operating Partnership or OPCO' Operating Partnership who
exercise their right to redeem operating partnership units under the
partnership agreements of such operating partnerships.
3.8 Ordinary Course. Subject to the terms and conditions of this
Agreement, the provisions of this Agreement shall not be construed as limiting
the independent rights of Patriot and OPCO to conduct their respective
businesses and operations in the ordinary course.
3.9 Indemnification. Patriot hereby agrees to indemnify and hold
harmless all directors and officers of OPCO from and against all losses,
claims, damages, liabilities and expenses ("Damages") to which any such
directors or officers may become subject insofar as such Damages arise out of
an Issuance of Paired Equity or an Issuance of Unpaired Equity to the same
extent, and on the same terms and conditions (including, without limitation,
provision for advancement of expenses and contribution) that Patriot
indemnifies its own directors and officers with respect to such matters.
ARTICLE IV - INTERFERENCE EVENTS
4.1 Interference Events. Upon any interference or failure to cooperate
by OPCO, or any of its officers, directors, agents or employees with any
Issuance of Paired Equity (an "Interference Event"), the provisions of this
Article IV shall apply.
4.2 Removal of Directors. The occurrence of any Interference Event
shall be deemed to constitute, and OPCO' certificate of incorporation and/or
bylaws shall so provide, the tendering of the resignation of any director
participating in, voting in favor of or otherwise supporting such Interference
Event, and OPCO hereby agrees to accept the resignation of any such director.
Thereafter, the remaining OPCO directors shall (i) elect such replacements as
are necessary to fill the vacated seat or seats, as the case may be, on OPCO'
Board of Directors and (ii) call a special meeting of stockholders of OPCO for
the purpose of electing a new slate of directors.
ARTICLE V - CHARTER AND BYLAW PROVISIONS
The Parties hereby agree to take any and all action necessary to cause
their respective charters and bylaws to be amended appropriately to effect the
provisions of this Agreement.
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ARTICLE VI - EXCHANGE OF INFORMATION; CONFIDENTIALITY
6.1 Provision of Corporate Records; Agreement for Exchange of
Information. From and after the date hereof, Patriot and OPCO shall provide, or
cause to be provided, to the other Party and such Party's authorized
accountants, counsel and other designated representatives, as soon as
reasonably practicable after written request therefor, reasonable access to and
duplicating rights with respect to any Information in the possession or under
the control of such Party which the requesting Party reasonably needs (i) to
comply with reporting, disclosure, filing or other requirements imposed on the
requesting party (including under applicable securities or tax laws) by a
Governmental Authority having jurisdiction over the requesting Party, (ii) for
use in any other judicial, regulatory, administrative, tax or other proceeding
or in order to satisfy audit, accounting, claims, regulatory, litigation, tax
or other similar requirements, (iii) to comply with its obligations under this
Agreement, or (iv) for any other reasonable purpose (including without
limitation, audit, accounting, claims, Actions, litigation and tax purposes);
provided, however, that in the event that any Party determines that any such
provision of Information could be commercially detrimental, violate any law or
agreement, or waive any attorney-client or work product privilege, the parties
shall take all reasonable measures to permit the compliance with such
obligations in a manner that avoids any such harm or consequence.
6.2 Ownership of Information. Any Information owned by one Party
hereto that is provided to a requesting Party pursuant to Section 6.1 shall be
deemed to remain the property of the providing Party. Unless specifically set
forth herein, nothing contained in this Agreement shall be construed as
granting or conferring rights of license or otherwise in any such Information.
6.3 Compensation for Providing Information. The Party requesting
Information agrees to reimburse the other Party for the reasonable costs, if
any, of creating, gathering and copying such Information, to the extent that
such costs are incurred for the benefit of the requesting Party. Except as may
be otherwise specifically provided elsewhere in this Agreement or in any other
agreement between the parties, such costs shall be computed in accordance with
a commercially reasonable procedure.
ARTICLE VII - TERMINATION
7.1 Termination by Mutual Consent. This Agreement may be terminated at
any time by the mutual consent of the Parties.
7.2 Other Termination. Unless earlier terminated pursuant to Section
7.1, this Agreement shall terminate on the Termination Date.
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7.3 Effect of Termination. In the event of any termination of this
Agreement, no Party (or any of its directors, officers, employees or agents)
shall have any liability or further obligation to any other party, except for
the obligations under Article II, which shall survive any termination of this
Agreement.
ARTICLE VIII - PATRIOT'S REMEDIES UNDER ARTICLES III AND IV
OPCO hereby recognizes and agrees that the specific performance of its
duties under Articles III and IV hereof, and Patriot's right to such specific
performance, is of paramount importance, that time is of the essence with
respect thereto and that remedies at law for any breach or threatened breach of
such duties, including monetary damages, would be inadequate compensation for
any loss suffered thereby. OPCO hereby agrees, therefore, that in the event of
any actual or threatened default or breach by OPCO with respect to any of its
obligations under Article III or Article IV hereof, Patriot shall be entitled
to the specific performance thereof and injunctive or other equitable relief,
in addition to any and all other rights and remedies at law or in equity, and
all such rights and remedies shall be cumulative. Patriot shall be entitled to
bring any action to enforce the provisions of Article III or Article IV hereof
in the Delaware Court of Chancery, which shall have sole jurisdiction and
venue. OPCO hereby waives (i) any requirement that Patriot secure or post any
bond in any action for equitable relief hereunder and (ii) any defense in any
action for specific performance that a remedy at law would be adequate.
ARTICLE IX - MISCELLANEOUS
9.1 Counterparts; Entire Agreement; Corporate Power.
(a) This Agreement may be executed in one or more original or
facsimile counterparts, all of which shall be considered one and the same
agreement, and shall become effective when one or more counterparts have been
signed by each of the Parties and delivered to the other Party.
(b) This Agreement contains the entire agreement between the
Parties with respect to the subject matter hereof, supersedes all previous
agreements, negotiations, discussions, writings, understandings, commitments
and conversations with respect to such subject matter and there are no
agreements or understandings between the Parties other than those set forth or
referred to herein or therein.
9.2 Governing Law. Unless expressly provided therein, this Agreement
shall be governed by and construed and interpreted in accordance with the laws
of the State of Delaware, irrespective of the choice of laws principles of the
State of Delaware, as to all matters, including matters of validity,
construction, effect, enforceability, performance and remedies.
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9.3 Assignability. This Agreement shall be binding upon and inure to
the benefit of the Parties and their respective successors and assigns;
provided, however, that neither Party may assign its respective rights or
delegate its respective obligations under this Agreement without the express
prior written consent of the other Party hereto or thereto.
9.4 Third Party Beneficiaries. Except as set forth in Section 3.6
hereof, the provisions of this Agreement are solely for the benefit of the
Parties and are not intended to confer upon any Person any rights or remedies
hereunder, and there are no third party beneficiaries of this Agreement and
this Agreement shall not provide any third person with any remedy, claim,
liability, reimbursement, claim of action or other right in addition to those
existing without reference to this Agreement. Notwithstanding anything to the
contrary contained in any other agreement, including, without limitation, the
Merger Agreement, OPCO hereby covenants, warrants and agrees that it shall not
take any action contrary to any covenant, agreement, term or provision of this
Agreement.
9.5 Notices. All notices or other communications under this Agreement
shall be in writing and shall be deemed to be duly given when (a) delivered in
person or (b) deposited in the United States mail or private express mail,
postage prepaid, addressed as follows:
If to Patriot, to: President
Patriot American Hospitality, Inc.
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
and to: Gilbert G. Menna, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
If to OPCO, to: James D. Carreker
Wyndham International
2001 Bryan Street
Suite 2300
Dallas, TX 75201
and to: M. Charles Jennings, Esq.
Locke Purnell Rain Harrell
2200 Ross Avenue
Suite 2200
Dallas, TX 75201-6776
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Any Party may, by notice to the other Party, change the address to
which such notices are to be given to it.
9.6 Severability. OPCO covenants, warrants and agrees not to claim or
assert that the validity or enforceability of this Agreement is subject to a
defense or claim based on recharacterization, unconscionability or public
policy. If any provision of this Agreement or the application thereof to any
Person or circumstance is determined by a court of competent jurisdiction to be
invalid, void or unenforceable, the remaining provisions hereof or thereof, or
the application of such provision to Persons or circumstances or in
jurisdictions other than those as to which it has been held invalid or
unenforceable, shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, so long as the economic or legal
substance of the transactions contemplated hereby or thereby, as the case may
be, is not affected in any manner adverse to any Party. Upon such
determination, the Parties shall negotiate in good faith in an effort to agree
upon such a suitable and equitable provision to effect the original intent of
the parties.
9.7 Headings. The article, section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
9.8 Waivers of Default. Waiver by any Party of any default by the
other Party of any provision of this Agreement shall not be deemed a waiver by
the waiving Party of any subsequent or other default, nor shall it prejudice
the rights of the other Party.
9.9 Amendments. No provisions of this Agreement shall be deemed
waived, amended, supplemented or modified by any Party, unless such waiver,
amendment, supplement or modification is in writing and signed by the
authorized representative of the party against whom it is sought to enforce
such waiver, amendment, supplement or modification.
9.10 Interpretation. The recitals in the forepart of this Agreement
are an integral part hereof and are essential to the construction of this
Agreement. Such recitals should be given full force and effect and accorded the
same significance as the other provisions hereof. Words in the singular shall
be held to include the plural and vice versa and words of one gender shall be
held to include the other genders as the context requires. The terms "hereof,"
"herein," and "herewith" and words of similar import shall, unless otherwise
stated, be construed to refer to this Agreement as a whole and not to any
particular provision of this Agreement. Article and Section references are to
the Articles and Sections to this Agreement unless otherwise specified. The
word "including" and words of similar import when used in this Agreement shall
mean "including, without limitation," unless the context otherwise requires or
unless otherwise specified. The word "or" shall not be exclusive.
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<PAGE> 22
9.11 Dispute Resolution. Any dispute relating to or any determination
with respect to any matter set forth in this Agreement other than the
enforcement of Patriot's rights under Articles III and IV hereof shall be
finally settled by arbitration conducted expeditiously in accordance with the
Center for Public Resources Rules for Nonadministered Arbitration of Business
Disputes (the "CPR Rules"). The Center for Public Resources shall appoint a
neutral advisor from its National CPR Panel having appropriate experience in
the matters that are the subject of the dispute (the "Advisor"). The
arbitration shall be governed by the United States Arbitration Act, 9 U.S.C.
ss.ss.1-16, and judgment upon the award rendered by the Advisor may be entered
by any court having jurisdiction thereof. The place of arbitration shall be
Dallas, Texas.
Such proceedings shall be administered by the Advisor in accordance
with the CPR Rules as he/she deems appropriate; however, such proceedings shall
in any event be governed by the following agreed upon procedures:
(a) the Advisor shall be appointed within fifteen (15) days
of the service of a statement of claim, the initial pre-hearing conference
shall take place within twenty (20) days after appointment of the Advisor, and
the arbitration hearing shall commence within sixty (60) days after appointment
of the Advisor;
(b) Subject to the following agreed-upon modifications,
discovery shall be governed by Rule 10 of the CPR Rules:
(i) the parties agree to a mandatory exchange of all
relevant documents, to be accomplished within twenty (20) days of
request by the other Party; and
(ii) each Party shall be entitled to no more than
two (2) depositions; such depositions may be scheduled on ten (10)
days notice to the other Party;
(c) hearings before the Advisor which shall consist of a
presentation by each side of not more than three days (including
cross-examination of the other party's witnesses); such hearings to take place
on six days at a maximum; and
(d) decision to be rendered in writing, including a statement
of reasons supporting the decision, not more than fifteen (15) days following
such hearings.
Nothing provided in this Section 9.11 shall limit or interfere with
Patriot's right to seek relief pursuant to Article VII hereof in the Delaware
Court of Chancery.
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<PAGE> 23
IN WITNESS WHEREOF, the Parties have caused this Cooperation Agreement
to be executed by their duly authorized representatives.
PATRIOT AMERICAN HOSPITALITY,
INC.
By:
--------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By:
--------------------------
Name:
Title:
20
<PAGE> 24
By its signature below, Wyndham hereby acknowledges the execution and
delivery of this Agreement by the parties hereto and confirms its agreement to
the terms and conditions hereof. Wyndham further agrees to be bound by the
terms of this Agreement if and when the Merger is consummated.
ACKNOWLEDGED AND AGREED:
WYNDHAM HOTEL CORPORATION
By:
----------------------------
Name:
Title:
21
<PAGE> 1
EXHIBIT 10.39
FORM OF
SUBSCRIPTION AGREEMENT
This Subscription Agreement (the "Agreement"), dated as of __________
__, 1997, is entered into by and between Wyndham Hotel Corporation, a Delaware
corporation ("Wyndham") and Patriot American Hospitality Operating Company, a
Delaware corporation ("OPCO").
W I T N E S S E T H:
WHEREAS, the shares of common stock, par value $.01 per share, of OPCO
(the "OPCO Stock") and the shares of common stock, par value $.01 per share
(the "Patriot Stock"), of Patriot American Hospitality, Inc., a Delaware
corporation ("Patriot"), are paired and trade as a single unit on the New York
Stock Exchange in accordance with that certain Pairing Agreement, dated as of
February 17, 1983, as amended, between Patriot and OPCO (the "Pairing
Agreement"); and
WHEREAS, Wyndham and Patriot have entered into an Agreement and Plan
of Merger (the "Merger Agreement") dated as of April __, 1997 (as ratified on
________, 1997 by Patriot and OPCO following the merger of Patriot with and
into California Jockey Club) pursuant to which Wyndham will merge with and into
Patriot (the "Merger") and Wyndham's stockholders will be entitled to receive
shares of Patriot Stock pursuant to the terms and subject to the conditions set
forth in the Merger Agreement. Capitalized terms used herein without
definition shall have the respective meanings ascribed to such terms in the
Merger Agreement; and
WHEREAS, to maintain the paired share structure of Patriot and OPCO
and to comply with the Pairing Agreement, Wyndham wishes to contract for the
issuance to its stockholders as Merger Consideration of, and OPCO wishes to
issue, an aggregate number of whole shares of OPCO Stock (each an "Issuable
Share" and collectively the "Issuable Shares") that will be equal to, and
paired with, the number of whole shares of Patriot Stock to be issued to the
Wyndham stockholders pursuant to the Merger upon the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, to effect a distribution to the stockholders of Wyndham,
Wyndham and Patriot desire to have OPCO issue the Subscribed Shares directly to
the stockholders of Wyndham.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants contained herein, the parties hereto agree as follows:
<PAGE> 2
1. Issuance of Shares.
(a) Subject to the satisfaction or waiver of the
conditions set forth in Article 9 of the Merger Agreement, Wyndham hereby
agrees to pay to OPCO, immediately prior to the consummation of the Merger, the
aggregate Purchase Price (as defined below) for the Issuable Shares. Subject
to the satisfaction or waiver of the conditions set forth in Article 9 of the
Merger Agreement, OPCO hereby agrees to issue the Issuable Shares directly to
the stockholders of Wyndham (the "Designees") in accordance with Sections 1(b)
and 2 below; provided, that upon such issuance of Issuable Shares to any
Designee there is a simultaneous issuance of an equivalent number of shares of
Patriot Stock to such Designee in compliance with the provisions of the Pairing
Agreement. The purchase price per Issuable Share (the "Purchase Price") shall
be equal to the product of (x) the Fair Market Value (as defined in the Merger
Agreement) of a Paired Share, multiplied by (y) the relative value of a share
of OPCO Stock as compared to a share of Patriot Stock, determined by agreement
of the parties to this Agreement. For purposes of this Agreement, the term
"fair market value" shall mean the average closing price of the Paired Shares
of Patriot Stock and OPCO Stock on the New York Stock Exchange for the four (4)
trading days immediately preceding the Closing Date.
(b) The parties hereto acknowledge and agree that the
Issuable Shares will be issued directly to the stockholders of Wyndham in
connection with the Merger and will be paired with the Patriot Stock issued in
the Merger and neither Wyndham nor Patriot will at any time become a
stockholder of OPCO or have any right to receive OPCO Stock.
2. Payment and Issuance of Issuable Shares.
(a) Subject to the terms and conditions of this Agreement
and subject to the satisfaction or waiver of the conditions set forth in
Article 9 of the Merger Agreement, Wyndham shall, immediately prior to the
consummation of the Merger, cause to be paid to OPCO the aggregate Purchase
Price for the Issuable Shares by check or wire transfer in immediately
available funds. Simultaneously with the payment of the aggregate Purchase
Price, the Designees shall be identified as the recipients of the Issuable
Shares.
(b) Immediately following payment of the aggregate
Purchase Price and the identification of the Designees pursuant to clause (a)
above, OPCO shall cause the Issuable Shares to be deposited with the Exchange
Agent pursuant to and in accordance with Section 5.4(a) of the Merger Agreement
for issuance in accordance with Article 5 of the Merger Agreement.
(c) No fractional Issuable Shares will be issued to any
Designee hereunder. In lieu thereof, payment, if any, will be made pursuant
to, and in accordance with, Section 5.4(e) of the Merger Agreement.
2
<PAGE> 3
3. Authorization and Reservation. OPCO shall take all actions
necessary to authorize and reserve for issuance the Issuable Shares pursuant to
this Agreement.
4. Representations and Warranties of OPCO. OPCO hereby
represents and warrants to Wyndham as follows:
(a) OPCO has all necessary corporate power and authority
to execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement by OPCO have been duly and validly
authorized by all necessary corporate action, and no other corporate
proceedings on the part of OPCO are necessary to authorize this Agreement or to
consummate the transactions hereunder. This Agreement has been duly and
validly executed and delivered by OPCO and, assuming the due authorization,
execution and delivery hereof by Wyndham, constitutes the legal, valid and
binding obligation of OPCO, enforceable against it in accordance with its
terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally and by
equitable principles to which the remedies of specific performance and
injunctive and similar forms of relief are subject.
(b) The Issuable Shares, when issued, sold and delivered
in accordance with this Agreement, will be validly issued, outstanding, fully
paid and nonassessable, and free and clear of any and all liens, pledges,
encumbrances, charges or claims created by OPCO, and not subject to preemptive
or any other similar rights.
(c) The execution and delivery of this Agreement by OPCO
does not, and the performance of its obligations hereunder and the consummation
of the subscription by it will not, (A) conflict with or violate the
certificate of incorporation or bylaws or equivalent organizational documents
of OPCO or any of its subsidiaries, (B) conflict with, violate or result in any
breach of or constitute a default (or an event which with notice or lapse of
time or both would become a default) under, the Pairing Agreement as amended in
accordance with the terms of the Pairing Agreement Amendment (as defined in the
Merger Agreement) and the Cooperation Agreement (as defined in the Merger
Agreement), (C) subject to the making of the filings and obtaining the
approvals identified herein or in the Merger Agreement, conflict with or
violate any Laws applicable to OPCO or any of its subsidiaries or by which any
property or asset of OPCO or any of its subsidiaries is bound or affected, or
(D) conflict with or result in any breach of or constitute a default (or an
event which with notice or lapse of time or both would become a default) under,
result in the loss or modification in a manner materially adverse to OPCO or
its subsidiaries of any material right or benefit under, or give to others any
right of termination, amendment, acceleration, repurchase or repayment,
increased payments or cancellation of, or result in the creation of a lien or
other encumbrance on any property or asset of OPCO or any of its subsidiaries
pursuant to, any contract to which OPCO or any of its subsidiaries is a party
or by which OPCO or any of its subsidiaries or any property or asset of OPCO or
any subsidiary is bound or affected, except, in the case of clauses (C) and (D)
for any such conflicts or violations which would not prevent or delay in any
material respect consummation of the Merger, or otherwise, individually or in
the
3
<PAGE> 4
aggregate, prevent OPCO from performing its obligations under this Agreement in
any material respect, and would not, individually or in the aggregate, have a
New Patriot Material Adverse Effect.
(d) The execution and delivery of this Agreement by OPCO
does not, and the performance of its obligations hereunder and the consummation
of the subscription by it will not, other than the Regulatory Filings, require
any consent, approval or authorization of, or declaration, filing or
registration with, any governmental or regulatory authority except where the
failure to obtain any such consent, approval or authorization of, or
declaration, filing or registration with, any governmental or regulatory
authority could not reasonably be expected to have a New Patriot Material
Adverse Effect.
5. Representations and Warranties of Wyndham. Wyndham hereby
represents and warrants to OPCO as follows:
(a) Wyndham has all necessary power and authority to
execute and deliver this Agreement and to perform its obligations hereunder.
The execution and delivery of this Agreement by Wyndham and the performance by
it of its obligations hereunder have been duly and validly authorized by all
necessary action and no other proceedings on the part of Wyndham are necessary
to authorize this Agreement or to consummate the transactions hereunder. This
Agreement has been duly and validly executed and delivered by Wyndham and,
assuming the due authorization, execution and delivery hereof by OPCO,
constitutes the legal, valid and binding obligation of Wyndham, enforceable
against it in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally and by equitable principles to which the remedies
of specific performance and injunctive and similar forms of relief are subject.
(b) The execution and delivery by Wyndham of this
Agreement does not, and the consummation by Wyndham of the transactions
contemplated hereby will not, violate any provision of, or result in a breach,
default or acceleration of any obligation under any contract, agreement or
other instrument to which Wyndham is a party or by which Wyndham is bound.
6. Termination. This Agreement shall terminate effective upon
termination of the Merger Agreement pursuant to Section 10.1 thereof.
7. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware.
8 Assignment; Binding Effect; Benefit. This Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors. This Agreement may not be assigned by either party
without prior written consent of the other party; provided, however, that
Wyndham may assign its rights and obligations hereunder to an affiliate of
Wyndham, provided that (i) such affiliate agrees to be bound hereby, (ii)
Wyndham remains
4
<PAGE> 5
liable hereunder, and (iii) such assignment does not adversely effect the
Transactions from the perspective of the other parties.
9. Severability. Any term or provision of this Agreement which
is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
10. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which shall
constitute one agreement.
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5
<PAGE> 6
IN WITNESS WHEREOF the parties hereto have executed this Subscription
Agreement as of the date first set forth above.
PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By:
----------------------------------
Name:
Title:
WYNDHAM HOTEL CORPORATION
By:
----------------------------------
Name:
Title:
6
<PAGE> 1
EXHIBIT 10.40
April 14, 1997
CF SECURITIES, L.P.
2001 Ross Avenue, Suite 3200
Dallas, Texas 75201
TCF HOTELS L.P.
On behalf of the Real Estate Sellers
2001 Ross Avenue, Suite 3200
Dallas, Texas 75201
Gentlemen:
Reference is made to that Agreement and Plan of Merger (the "Merger
Agreement") between Patriot American Hospitality, Inc. ("PAH") and the
undersigned (the "Company"), pursuant to which the Company will merge with and
into PAH, with PAH being the surviving corporation (the "Merger"), following the
proposed business combination among PAH, California Jockey Club and Bay Meadows
Operating Company as more specifically described in the Merger Agreement.
In connection with the Merger Agreement, CF Securities L.P. ("CFS") has entered
into a stock purchase agreement with PAH pursuant to which CFS will sell its
shares of Company common stock to PAH (the "Stock Purchase"), and certain
entities owned or controlled, directly or indirectly, by Mr. and Mrs. Trammell
Crow and/or various descendants thereof (the "Real Estate Sellers") have
entered into an Omnibus Purchase and Sale Agreement and related agreements
pursuant to which the Real Estate Sellers will sell certain real estate and
related assets to the PAH operating partnership (the "Real Estate Sale").
Each of the Company, CFS and the Real Estate Sellers (the "Crow/Wyndham
Parties") agrees not to amend or modify the material terms of the Merger, the
Stock Purchase or the Real Estate Sale without the prior written approval of
the other Crow/Wyndham Parties.
If you are in agreement with the foregoing, please so indicate by signing
this letter in the spaces provided below.
Very truly yours,
WYNDHAM HOTELS CORPORATION
By: /s/ ANNE L. RAYMOND (CSM)
-----------------------------------
Name: Anne L. Raymond
---------------------------------
Title: Executive Vice President
---------------------------------
<PAGE> 2
April 14, 1997
Page 2
AGREED:
CF SECURITIES, L.P.
By: Mill Spring Holdings, Inc.,
its General Partner
By: /s/ HARLAN R. CROW
-----------------------------------
Name: Harlan R. Crow
---------------------------------
Title: President
---------------------------------
TCF Hotels L.P.
On behalf of the Real Estate Sellers
By: Mill Spring Holdings, Inc.,
its General Partner
By: /s/ HARLAN R. CROW
-----------------------------------
Name: Harlan R. Crow
---------------------------------
Title: President
---------------------------------
