<PAGE>
As filed with the Securities and Exchange Commission on February 13, 1998
Registration Statement Nos.
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
<TABLE>
<S> <C>
PATRIOT AMERICAN HOSPITALITY, INC. WYNDHAM INTERNATIONAL, INC.
(Exact Name of Registrant as Specified in its Charter) (Exact Name of Registrant as Specified in its Charter)
DELAWARE DELAWARE
(State or Other Jurisdiction of (State or Other Jurisdiction of
Incorporation or Organization) Incorporation or Organization)
94-0358820 94-2878485
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
1950 Stemmons Freeway 1950 Stemmons Freeway
Suite 6001 Suite 6001
Dallas, TX 75207 Dallas, TX 75207
(214) 863-1000 (214) 863-1000
(Address, Including Zip Code, and Telephone (Address, Including Zip Code, and Telephone
Number, Including Area Code, of Number, Including Area Code, of
Registrant's Principal Executive Offices) Registrant's Principal Executive Offices)
PAUL A. NUSSBAUM JAMES D. CARREKER
Chairman of the Board and Chief Executive Officer Chairman of the Board and Chief Executive Officer
Patriot American Hospitality, Inc. Wyndham International, Inc.
1950 Stemmons Freeway 1950 Stemmons Freeway
Suite 6001 Suite 6001
Dallas, TX 75207 Dallas, TX 75207
(214) 863-1000 (214) 863-1000
(Name, Address, Including Zip Code, and (Name, Address, Including Zip Code, and
Telephone Number, Including Area Code, Telephone Number, Including Area Code and
of Agent for Service) of Agent for Service)
</TABLE>
--------------------
copies to:
GILBERT G. MENNA, P.C.
KATHRYN I. MURTAGH, ESQ.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
(617) 570-1000
--------------------
Approximate date of commencement of proposed sale to public: As soon as
practicable after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
================================================================================
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
Proposed Minimum Proposed Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Offering Registration
Securities Being Registered Registered (1) Per Share (2) Price (3) Fee (4)
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.01
per share, of Patriot American
Hospitality, Inc. paired with
Common Stock, par value $.01
per share, of Wyndham
International, Inc.
Preferred Stock, par value $.01
per share, of Patriot American
Hospitality, Inc.
Preferred Stock, par value $.01
per share, of Wyndham
International, Inc.
Total $1,000,000,000 N.A. $1,000,000,000 $237,200
=======================================================================================================
</TABLE>
(1) The amount to be registered consists of up to $1,000,000,000 of an
indeterminate amount of Common Stock of Patriot American Hospitality, Inc.
(the "Corporation"), and Common Stock of Wyndham International, Inc. (the
"Operating Company"), which shares are paired and trade as a single unit
(the "Paired Common Stock"), and Preferred Stock of the Corporation and
Preferred Stock of the Operating Company. Pursuant to Rule 429 under the
Securities Act of 1933, as amended, this amount includes $190,741,586 of
securities being carried forward from the earlier Registration Statement of
Form S-3 (Nos. 333-29671 and 333-29671-01), which have not been sold. There
is also being registered hereunder such currently indeterminate number of
shares of Paired Common Stock as may be issued upon conversion of the
Preferred Stock of either the Corporation or the Operating Company
registered hereby.
(2) The proposed maximum offering price per unit has been omitted pursuant to
Securities Act Release No. 6964. The registration fee has been calculated
in accordance with rule 457(o) under the Securities Act of 1933, as
amended.
(3) Estimated solely for purposes of computing the registration fee. No
separate consideration will be received for shares of Paired Common Stock
issued upon conversion of Preferred Stock of either the Corporation or the
Operating Company.
(4) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
amount of $190,741,586 of securities covered by the earlier Registration
Statement of Form S-3 (Nos. 333-29671 and 333-29671-01) of the registrants
is being carried forward and the corresponding registration fee of $57,800
was previously paid at the time of filing.
The Prospectus contained in this registration statement relates to and
constitutes a Post-Effective Amendment to the Registration Statement of Form S-3
(Nos. 333-29671 and 333-29671-01) of the registrants, and it is intended to be
the combined prospectus referred to in Rule 429 under the Securities Act of
1933, as amended.
The registrants hereby amend this registration statement on such date or dates
as may be necessary to delay its effective date until the registrants shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, as amended, or until the registration statement shall
become effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY __, 1998
$950,000,000
PATRIOT AMERICAN HOSPITALITY, INC.
COMMON STOCK
PREFERRED STOCK
$50,000,000
WYNDHAM INTERNATIONAL, INC.
COMMON STOCK
PREFERRED STOCK
Patriot American Hospitality, Inc. (the "Corporation") and Wyndham
International, Inc.(the "Operating Company" and, together with the Corporation,
the "Companies"), may offer from time to time: (i) shares of common stock, $.01
par value, of the Corporation ("Corporation Common Stock") and shares of common
stock, $.01 par value, of the Operating Company ("Operating Company Common
Stock") which are "paired" and trade as units consisting of one share of
Corporation Common Stock and one share of Operating Company Common Stock (the
"Paired Common Stock"); and (ii) one or more series of shares of preferred
stock, $.01 par value, of the Corporation ("Corporation Preferred Stock") and
shares of preferred stock, $.01 par value, of the Operating Company ("Operating
Company Preferred Stock" and, together with Corporation Preferred Stock, the
"Preferred Stock") which may be, but are not required to be "paired." The
Preferred Stock and the Paired Common Stock (collectively, the "Securities") may
be offered separately or together, in separate series, in amounts, at prices and
on terms, all to be set forth in one or more supplements to this Prospectus
(each, a "Prospectus Supplement"). Of the $1,000,000,000 aggregate public
offering price of Securities, up to $950,000,000 will be offered by the
Corporation and up to $50,000,000 will be offered by the Operating Company.
The specific terms of the Securities for which this Prospectus is being
delivered will be set forth in the applicable Prospectus Supplement and will
include, where applicable: (i) in the case of Preferred Stock, the specific
designations and stated value per share, any dividend, liquidation,
redemption, conversion, voting and other rights, and any initial public
offering price; and (ii) in the case of Paired Common Stock, any public
offering price. In addition, such specific terms may include limitations on
direct or beneficial ownership and restrictions on transfer of the Securities,
in each case as may be consistent with the Corporation's Amended and Restated
Certificate of Incorporation as then in effect and/or the Operating Company's
Amended and Restated Certificate of Incorporation as then in effect, as the case
may be, or otherwise appropriate to preserve the status of the Corporation as a
real estate investment trust (a "REIT") for federal income tax purposes. See
"Restrictions on Transfers of Capital Stock."
The applicable Prospectus Supplement will also contain information, where
appropriate, about certain United States federal income tax considerations
relating to, and any listing on a securities exchange of, the Securities
covered by such Prospectus Supplement.
The Securities may be offered by the Companies directly to one or more
purchasers, through agents designated from time to time by the Companies or to
or through underwriters or dealers. If any agents or underwriters are involved
in the sale of any of the Securities, their names, and any applicable purchase
price, fee, commission or discount arrangement between or among them, will be
set forth, or will be calculable from the information set forth, in an
accompanying Prospectus Supplement. See "Plan of Distribution." No Securities
may be sold without delivery of a Prospectus Supplement describing the method
and terms of the offering of such Securities.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------------
THE DATE OF THIS PROSPECTUS IS ___________ , 1998
<PAGE>
AVAILABLE INFORMATION
The Companies have filed with the Securities and Exchange Commission (the
"SEC" or "Commission") a Registration Statement on Form S-3 (the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Securities. This Prospectus, which constitutes part of the
Registration Statement, omits certain of the information contained in the
Registration Statement and the exhibits thereto on file with the Commission
pursuant to the Securities Act and the rules and regulations of the Commission
thereunder. Statements contained in this Prospectus as to the contents of any
contract or other document referred to are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the Registration Statement, each such statement being qualified
in all respects by such reference. The Registration Statement, including
exhibits thereto, may be inspected and copies obtained from the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and
at the following Regional Offices of the Commission: 7 World Trade Center, 13th
Floor, New York, New York 10048, and Northwestern Atrium Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such
material may be obtained from the Public Reference Section of the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at prescribed
rates. The Companies file information electronically with the Commission, and
the Commission maintains a Web Site that contains reports, proxy and information
statements and other information regarding registrants (including the Companies)
that file electronically with the Commission. The address of the Commission's
Web Site is (http://www.sec.gov).
The Companies are subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith file reports and proxy statements and other information
with the Commission. Such reports, proxy statements and other information can be
inspected and copied at the locations described above. Copies of such materials
can be obtained by mail from the Public Reference Section of the Commission at
Room 1024, Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at
prescribed rates. In addition, reports, proxy and information statements and
other information concerning the Companies can be inspected at the offices of
the New York Stock Exchange (the "NYSE"), 20 Broad Street, New York, New York
10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents are incorporated herein by reference:
Corporation and Operating Company
1. Current Reports on Form 8-K of the Corporation and the Operating Company
dated (i) July 1, 1997 (Nos. 001-09319, 001-09320 filed July 11, 1997), (ii)
July 15, 1997 (Nos. 001-09319, 001-09320 filed July 21, 1997), (iii) July 22,
1997 (Nos. 001-09319, 001-09320 filed July 22, 1997), (iv) September 17, 1997
(Nos. 001-09319, 001-09320 filed September 17, 1997), (v) September 30, 1997, as
amended (Nos. 001-09319, 001-09320 filed October 14, 1997 and October 28, 1997),
(vi) September 30, 1997 (Nos. 001-09319, 001-09320 filed November 12, 1997),
(vii) December 2, 1997 (Nos. 001-09319, 001-09320 filed December 4, 1997);
(viii) December 10, 1997 (Nos. 001-09319, 001-09320 filed December 10, 1997);
(ix) January 5, 1998 (Nos. 001-09319, 001-09320 filed January 13, 1998); and
(x) February 9, 1998 (Nos. 001-09319, 001-09320 filed February 12, 1998);
2. Quarterly Report on Form 10-Q of the Corporation and the Operating
Company (Nos. 001-09319, 001-09320) for the fiscal quarter ended June 30, 1997;
3. Quarterly Report on Form 10-Q of the Corporation and the Operating
Company (Nos. 001-09319, 001-09320) for the fiscal quarter ended September 30,
1997; and
4. The description of the paired shares of Corporation Common Stock and
Operating Company Common Stock contained or incorporated by reference in the
Corporation's and the Operating Company's Registration Statement on Form 8-A
(Nos. 001-09319, 001-09320), including any amendments thereto.
California Jockey Club and Bay Meadows Operating Company
1. Annual Report on Form 10-K of California Jockey Club and Bay Meadows
Operating Company (Nos. 001-09319, 001-09320) for the fiscal year ended December
31, 1996;
2. Current Reports on Form 8-K of California Jockey Club and Bay Meadows
Operating Company dated (i) February 24, 1997 (Nos. 001-09319, 001-09320 filed
March 3, 1997) and (ii) May 28, 1997 (Nos. 001-09319, 001-09320 filed June 5,
1997);
3
<PAGE>
3. Quarterly Report on Form 10-Q of California Jockey Club and Bay Meadows
Operating Company (Nos. 001-09319, 001-09320) for the fiscal quarter ended March
31, 1997; and
4. Quarterly Report on Form 10-Q/A of California Jockey Club and Bay
Meadows Operating Company (Nos. 001-09319, 001-09320) for the fiscal quarter
ended March 31, 1997 (filed May 16, 1997).
Patriot American Hospitality, Inc. (Patriot)
1. Annual Report on Form 10-K of Patriot American Hospitality, Inc., (No.
001-13898) for the fiscal year ended December 31, 1996;
2. Current Reports on Form 8-K of Patriot American Hospitality, Inc.,
dated: (i) April 2, 1996, as amended (No. 001-13898 filed April 17, 1996 and
June 14, 1996) reporting the acquisition of certain assets, (ii) December 5,
1996 (No. 001-13898 filed December 5, 1996) reporting the acquisition of certain
assets, (iii) January 16, 1997, as amended (No. 001-13898 filed January 31,
1997, February 21, 1997, April 8, 1997, April 9, 1997 and May 19, 1997),
reporting the consummation of the acquisition of Carefree Resorts Corporation
and Resorts Limited Partnership and certain other assets, (iv) February 24, 1997
(No. 001-13898 filed March 3, 1997) reporting the execution of a merger
agreement between Patriot and California Jockey Club and (v) April 14, 1997, as
amended (No. 001-13898 filed April 17, 1997 and April 18, 1997), reporting the
execution of a merger agreement between Patriot and Wyndham Hotel Corporation
and the related stock purchase agreement and the execution of agreements with
partnerships affiliated with members of the Trammell Crow family providing for
the acquisition by the Corporation of 11 full-service Wyndham-branded hotels;
and
3. Quarterly Report on Form 10-Q of Patriot American Hospitality, Inc. (No.
001-13898) as of and for the fiscal quarter ended March 31, 1997.
Wyndham Hotel Corporation (Wyndham)
1. Annual Report on Form 10-K of Wyndham Hotel Corporation (No. 001-11723
filed March 27, 1997) for the fiscal year ended December 31, 1996;
2. Current Reports on Form 8-K of Wyndham Hotel Corporation dated (i) April
14, 1997 (No. 001-11723 filed April 23, 1997) and (ii) July 31, 1997, as
amended (No. 001-11723 filed August 15, 1997 and September 18, 1997);
3. Quarterly Report on Form 10-Q of Wyndham Hotel Corporation
(No. 001-11723) for the fiscal quarter ended March 31, 1997;
4. Quarterly Report on Form 10-Q/A of Wyndham Hotel Corporation (No. 001-
11723) for the fiscal quarter ended March 31, 1997 (filed June 2, 1997);
5. Quarterly Report on Form 10-Q of Wyndham Hotel Corporation
(No. 001-11723) for the fiscal quarter ended June 30, 1997;
6. Quarterly Report on Form 10-Q/A of Wyndham Hotel Corporation
(No. 001-11723) for the fiscal quarter ended June 30, 1997 (filed August 29,
1997);
7. Quarterly Report on Form 10-Q of Wyndham Hotel Corporation
(No. 001-11723) for the fiscal quarter ended September 30, 1997; and
8. Proxy Statement of Wyndham Hotel Corporation (No. 001-11723) for the
Annual Meeting of Stockholders held April 28, 1997 (filed March 27, 1997).
All other documents filed with the Commission by the Corporation or the
Operating Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act subsequent to the date of this Prospectus and prior to the termination of
the offering of the Securities are to be incorporated herein by reference and
such documents shall be deemed to be a part hereof from the date of filing of
such documents. Any statement contained in this Prospectus or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed document that also
is or is deemed to be incorporated by reference herein modifies or supersedes
such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Any person receiving a copy of this Prospectus may obtain, without charge,
upon written or oral request, a copy of any of the documents incorporated by
reference herein, except for the exhibits to such documents. Written requests
should be mailed to 1950 Stemmons Freeway, Suite 6001, Dallas, TX 75207,
Attention: Shareholder Relations (Telephone No. 214-863-1000).
4
<PAGE>
THE COMPANIES
The Corporation
The Corporation is a self-administered REIT under the Internal Revenue Code
of 1986, as amended (the "Code"). The Corporation owns interests in a portfolio
of hotels which are diversified by franchise or brand affiliation and serve
primarily major U.S. business centers. In addition to hotels catering primarily
to business travelers, the Corporation's portfolio also includes world-class
resort hotels and prominent hotels in major tourist destinations. The
Corporation also leases approximately 174 acres of land in San Mateo, California
upon which the Bay Meadows Racecourse (the "Racecourse") is situated.
On July 1, 1997, the Corporation's predecessor, Patriot American
Hospitality, Inc., a Virginia corporation ("Patriot"), consummated its
acquisition of California Jockey Club ("Cal Jockey") and Bay Meadows Operating
Company ("Bay Meadows") by merger (the "Cal Jockey Merger"). In the Cal Jockey
Merger, Patriot merged with and into Cal Jockey, Cal Jockey changed its name to
"Patriot American Hospitality, Inc." and Bay Meadows changed its name to
"Patriot American Hospitality Operating Company." As a result of the Cal Jockey
Merger, the Corporation became one of two hotel REITs with the paired share
ownership structure. The paired share ownership structure permits the
Corporation to lease certain of its existing hotels, as well as newly acquired
hotels, to the Operating Company, thereby retaining for the Companies'
stockholders the economic benefits of both the lease payments received by the
Corporation and the operating profits realized by the Operating Company, while
maintaining the tax benefits of the Corporation's status under the Code as a
REIT. The paired share ownership structure also facilitates the Companies'
acquisition and development of hotel management and franchise businesses,
operations which the Corporation would have difficulty pursuing within a
traditional REIT structure.
On January 5, 1998, the Corporation consummated its acquisition by merger
(the "Wyndham Acquisition") of Wyndham Hotel Corporation ("Wyndham"), with the
Corporation being the surviving company. Upon consummation of the Wyndham
Acquisition, the Operating Company, then known as Patriot American Hospitality
Operating Company, changed its name to "Wyndham International, Inc." Pursuant to
the Wyndham Acquisition, the Corporation acquired Wyndham's portfolio of owned
and leased hotels, management and franchise agreements for Wyndham's managed and
franchised properties throughout North America, management and franchise
agreements for properties which are currently closed for renovation or
construction or are in the process of being converted to the Wyndham brand, and
Wyndham's proprietary brand names, including Wyndham/SM/, Wyndham Garden(R) and
Wyndham Hotels and Resorts/SM/. In connection with the Wyndham Acquisition, the
Corporation also acquired from partnerships affiliated with members of the
Trammell Crow family certain full-service Wyndham-branded hotels.
5
<PAGE>
As part of their ongoing businesses, the Companies continually engage in
discussions with public and private real estate entities, including, without
limitation, current lessees of the Companies' hotels, regarding possible
portfolio or single asset acquisitions, as well as the acquisition of hotel
leasing and management operations. No assurances can be made that the Companies
will acquire any such acquisition opportunities.
The Corporation conducts substantially all of its operations through Patriot
American Hospitality Partnership, L.P., a Virginia limited partnership (the
"Realty Partnership"), which owns, directly and through its subsidiaries, the
Corporation's interests in substantially all of the Corporation's hotels.
Through its wholly-owned subsidiaries, PAH GP, Inc. and PAH LP, Inc., each a
Delaware corporation, the Corporation holds the sole general partnership
interest and a limited partnership interest, respectively, in the Realty
Partnership.
Since 1983, the shares of Corporation Common Stock have been paired and have
traded together with the shares of Operating Company Common Stock as a single
unit pursuant to a stock pairing agreement. The terms of the stock pairing
agreement are set forth in the Pairing Agreement, dated as of February 17, 1983
and amended from time to time thereafter, by and between the Corporation and the
Operating Company (the "Pairing Agreement"). Since the Cal Jockey Merger, the
Paired Common Stock has been listed on the NYSE under the symbol "PAH."
The Corporation's principal executive offices are located at 1950 Stemmons
Freeway, Suite 6001, Dallas, Texas 75207 and its telephone number at that
location is (214) 863-1000.
The Operating Company
The Corporation leases certain of its hotels to the Operating Company. The
Operating Company is also engaged in the business of conducting and offering
pari-mutuel wagering on thoroughbred horse racing at the Racecourse. As
described above, shares of Operating Company Common Stock are paired and trade
together with the shares of Corporation Common Stock as a single unit on the
NYSE pursuant to the Pairing Agreement. The Operating Company conducts
substantially all of its operations through Patriot American Hospitality
Operating Partnership, L.P., a Delaware limited partnership (the "Operating
Partnership"), which owns, directly and through its subsidiaries, the Operating
Company's assets. The Operating Company holds the sole general partnership
interest and a limited partnership interest in the Operating Partnership.
The Operating Company's principal executive offices are located at 1950
Stemmons Freeway, Suite 6001, Dallas, Texas 75207 and its telephone number at
that location is (214) 863-1000.
USE OF PROCEEDS
Unless otherwise described in the applicable Prospectus Supplement, the
Companies intend to apply the net proceeds from the sale of Securities to
general corporate and working capital purposes, including, without limitation,
repayment of indebtedness, investment in new properties and maintenance of
currently owned properties.
RATIOS OF EARNINGS TO FIXED CHARGES
Combined Historical Ratio of Earnings to Fixed Charges for the Corporation
and the Operating Company.
The following table sets forth the combined historical consolidated ratios of
earnings to fixed charges for the Corporation and the Operating Company for the
periods shown:
<TABLE>
<CAPTION>
Year Ended December 31,
-------------------------------- Nine Months Ended
1995 1996 September 30, 1997
-------------- -------------- ------------------
<S> <C> <C> <C>
Ratio........................ 80.37x(b) 7.00x 1.04x(a)
</TABLE>
- --------
(a) Combined pre-tax income from continuing operations for the nine months ended
September 30, 1997 includes costs to acquire leaseholds, a non-recurring
expense, in the amount of $43,820,000.
(b) The Corporation commenced operations on October 2, 1995.
The ratios of earnings to fixed charges were computed by dividing earnings
by fixed charges. For this purpose, earnings consist of combined pre-tax, income
from continuing operations plus fixed charges. Fixed charges consist of interest
expense and the amortization of debt issuance costs. As of September 30, 1997,
the Companies had not issued any Preferred Stock; therefore, the ratios of
earnings to combined fixed charges and Preferred Stock dividend requirements
are the same as the ratios of earnings to fixed charges presented above.
DESCRIPTION OF CAPITAL STOCK
General
The rights of stockholders of the Corporation and the Operating Company are
governed by the Amended and Restated Certificate of Incorporation of the
Corporation (the "Corporation Charter") and the Amended and Restated Certificate
of Incorporation of the Operating Company (the "Operating Company Charter" and,
together with the Corporation Charter, the "Charters") and the Amended and
Restated Bylaws of the Corporation (the "Corporation Bylaws") and the Amended
and Restated Bylaws of the Operating Company (the "Operating Company Bylaws").
The rights of such stockholders are also governed by the terms of the Pairing
Agreement and the Cooperation Agreement, dated December 18, 1997, between the
Corporation and the Operating Company (the "Cooperation Agreement").
Under the Charters, each of the Corporation and the Operating Company have
the authority to issue 650,000,000 shares of Corporation Common Stock and
Operating Company Common Stock, respectively, 100,000,000 shares of Preferred
Stock, and 750,000,000 shares of excess stock, par value $.01 per share (the
"Excess Stock").
Issuances of shares of Corporation Common Stock, Operating Company Common
Stock and other equity securities of the Corporation and the Operating Company
are subject to the terms and conditions of the Pairing Agreement and the
Cooperation Agreement.
The Pairing Agreement
Under the Pairing Agreement, shares of Corporation Common Stock and
Operating Company Common Stock shall not be transferrable or transferred on the
books of such company unless a simultaneous transfer is made by the same
transferor to the same transferee of an equal number of shares of common stock
of the other company. Neither the Corporation nor the Operating Company may
issue shares of Corporation Common Stock or Operating Company Common Stock, as
the case may be, unless provision has been made for the simultaneous issuance or
transfer to the same person of the same number of shares of common stock of the
other company and for the pairing of such shares. Each certificate issued for
Corporation Common Stock or Operating Company Common Stock must be issued "back-
to-back" with a certificate evidencing the same number of shares of common stock
of the other company. Each certificate must bear a conspicuous legend on its
face referring to the restrictions on ownership and transfer under the Pairing
Agreement. The Pairing Agreement provides that each of the Corporation and the
Operating Company may issue shares of capital stock of any class or series
(other than Corporation Common Stock and Operating Company Common Stock),
irrespective of whether such shares are convertible into shares of Corporation
Common Stock and Operating Company Common Stock, without making provision for
the simultaneous issuance or transfer to the same person of the same number of
shares of that same class or series of capital stock of the other company and
for the pairing of such shares.
In addition, pursuant to the Pairing Agreement, neither the Corporation nor
the Operating Company may declare a stock dividend consisting in whole or in
part of Corporation Common Stock or Operating Company Common Stock, issue any
rights or warrants to purchase any shares of Corporation Common Stock or
Operating Company Common Stock or subdivide, combine or otherwise reclassify the
shares of Corporation Common Stock or Operating Company Common Stock unless the
other company simultaneously takes the same or equivalent action.
Pursuant to the Pairing Agreement, as desired from time to time, but no
less than once each calendar year, the Corporation and the Operating Company are
required to jointly arrange for the determination of the fair market value of
the Operating Company Common Stock outstanding on such valuation date. Such
valuation may be used from time to time by the Corporation and the Operating
Company to change the allocation between the companies of the net proceeds from
any issuance of paired equity. The Pairing Agreement may be terminated by the
Board of Directors of either the Corporation or the Operating Company upon 30
days written notice to the other company that such termination has been approved
by the affirmative vote of the holders of a majority of the outstanding shares
of common stock of the company seeking to terminate the agreement. In the event
the Pairing Agreement is terminated, the Corporation and the Operating Company
have agreed to cooperate to effect a separation of the paired shares of both
companies so as to permit the separate issuance and transfer thereof.
The Cooperation Agreement
Although a paired share structure may result in stockholders of the paired
companies realizing certain economic benefits not realizable by stockholders of
companies not having a paired share structure, each paired company is a separate
corporate entity with a separate Board of Directors and different management
teams. Accordingly, the interests of the Board of Directors and management of
the paired companies may conflict and such conflicts may possibly rise to
disputes between the companies. Prior to the Cal Jockey Merger, Cal Jockey and
Bay Meadows experienced certain disagreements and disputes, some of which
resulted in litigation between the companies. The Corporation and the Operating
Company believe that these disagreements and disputes compromised the ability of
Cal Jockey and Bay Meadows to operate the companies in a manner designed to
maximize the potential economic benefits that could be realized for stockholders
of the paired companies. The Corporation and the Operating Company believe that
to increase the likelihood that the stockholders of the two companies may fully
realize the economic benefits of the paired share structure, it is in the best
interests of the companies and their respective stockholders that the risk of
potential conflicts between the two companies be minimized. Accordingly, the
Corporation and the Operating Company have entered into the Cooperation
Agreement.
Under the terms of the Cooperation Agreement, the Corporation and Operating
Company are obligated to cooperate to the fullest extent possible in the conduct
of their respective operations and to take all necessary action to preserve the
paired share structure and to maximize the economic and tax advantages
associated therewith. One of the primary objectives of the Cooperation Agreement
is to set forth the understanding of the Companies that the Corporation shall
have the sole right and power to authorize, effect and control issuances of
paired equity (including securities convertible into paired equity) of the two
companies. The Cooperation Agreement provides for a number of corporate
governance mechanisms designed to accomplish this objective and the other
objectives set forth therein. These mechanisms include (i) the establishment of
a cooperation committee that normally considers and proposes the agenda listing
the matters to be considered at any joint meeting of the Corporation Board and
the Operating Company Board, (ii) the establishment of corporate matters
categories and procedures for the consideration and reconsideration of matters
brought before the Corporation Board and the Operating Company Board, (iii) the
establishment of a hotel acquisitions committee that is to analyze, evaluate and
consider potential acquisitions by the Companies of hotel properties and related
assets, (iv) provisions that govern the sole authority of the Corporation to
authorize, effect and control issuances of paired equity (including securities
convertible into paired equity) of the two companies, and (v) the establishment
of an unpaired equity committee that will have the sole authority to authorize
and approve issuances of unpaired equity by the Operating Company. Unless
earlier terminated at any time by the mutual consent of the Corporation and the
Operating Company, the Cooperation Agreement will terminate on the date that is
12 months after the date on which the Pairing Agreement is no longer in effect.
In the event of any termination of the Cooperation Agreement neither the
Corporation nor the Operating Company (or any of its directors, officers,
employees or agents will have any liabilty or further obligation to any other
party under the Cooperation Agreement.
DESCRIPTION OF PAIRED COMMON STOCK
The following description of the Paired Common Stock sets forth certain
general terms and provisions of the Paired Common Stock to which any Prospectus
Supplement may relate. The statements below describing the Paired Common Stock
are in all respects subject to and qualified in their entirety by reference to
the applicable provisions of the Corporation Charter and the Operating Company
Charter and the Corporation Bylaws and the Operating Company Bylaws.
General
The Paired Common Stock is currently listed on the NYSE under the symbol
"PAH." As of February 9, 1998, there were 99,878,341 shares of Paired Common
Stock outstanding. The Paired Common Stock will, when issued, be fully paid
and nonassessable.
Terms
The holders of Paired Common Stock are entitled to one vote per share on all
matters voted on by stockholders of the Corporation and the Operating Company,
including elections of directors. Except as otherwise required by law, by the
terms of Patriot Series A Preferred Stock (see discussion below), by the
Charters with respect to Excess Stock or provided in any resolution adopted by
either of the Corporation Board or the Operating Company Board with respect to
any series of Preferred Stock, the holders of Paired Common Stock exclusively
possess all voting power. The Charters do not provide for cumulative voting in
the election of directors. Subject to the terms of the Patriot Series A
Preferred Stock and any preferential rights of any outstanding series of
Preferred Stock and the rights of holders of Excess Stock, the holders of shares
of Paired Common Stock are entitled to such dividends as may be declared from
time to time by the Corporation Board and the Operating Company Board from funds
available for such purpose, and upon liquidation are entitled to receive pro
rata all assets of the Corporation and the Operating Company available for
distribution to such holders.
Holders of Paired Common Stock have no conversion, sinking fund or
redemption rights, or preemptive rights to subscribe for any securities of the
Corporation or the Operating Company.
Each of the Corporation and the Operating Company intends to furnish its
stockholders with annual reports containing audited consolidated financial
statements and an opinion thereon expressed by an independent public accounting
firm and quarterly reports for the first three quarters of each fiscal year
containing unaudited financial information.
Pursuant to the Delaware General Corporation Law (the "DGCL"), a merger or
consolidation involving either of the Corporation or the Operating Company
requires the approval of a majority of the outstanding shares of the constituent
corporation to the transaction entitled to vote on such a matter.
Restrictions on Ownership
For the Corporation to qualify as a REIT under the Code, not more than 50%
in value of its outstanding capital stock may be owned, directly or indirectly,
by five or fewer individuals (as defined in the Code to include certain
entities) during the last half of a taxable year. To assist the Corporation in
meeting this requirement, the Corporation and the Operating Company may take
certain actions to limit the beneficial ownership, directly or indirectly, by a
single person of the Corporation's or the Operating Company's outstanding equity
securities. See "Restrictions on Transfers of Capital Stock."
Transfer Agent
The transfer agent and registrar for the Paired Common Stock is American
Stock Transfer & Trust Company of New York, New York.
6
<PAGE>
DESCRIPTION OF PREFERRED STOCK
General
The following description of the Preferred Stock sets forth certain general
terms and provisions of the Preferred Stock to which any Prospectus Supplement
may relate. The statements below describing the Preferred Stock are in all
respects subject to and qualified in their entirety by reference to the
Cooperation Agreement, the Corporation Charter and the Operating Company Charter
and any applicable amendment to the Corporation Charter or the Operating Company
Charter designating terms of a series of Preferred Stock (a "Designating
Amendment").
With the exception of Preferred Stock that is convertible into Paired Common
Stock, the Corporation may authorize and issue Corporation Preferred Stock
without the issuance by the Operating Company of corresponding shares, and the
Operating Company may authorize and issue Operating Company Preferred Stock
without the issuance by the Corporation of corresponding shares. Furthermore,
the Pairing Agreement does not limit the power of the Board of Directors of each
of the Corporation and the Operating Company to independently determine the
rights, preferences and restrictions of such shares.
Subject to the limitations prescribed by the Cooperation Agreement and the
Corporation Charter and the Operating Company Charter, respectively, the Board
of Directors of each of the Corporation and the Operating Company is authorized
to provide for the issuance of shares of Preferred Stock in one or more series,
to establish the number of shares in each series and to fix the designations,
powers, preferences and rights of each such series and the qualifications,
limitations or restrictions thereof. The Preferred Stock will, when issued, be
fully paid and nonassessable and will have no preemptive rights. Because the
Board of Directors of each of the Corporation and the Operating Company has the
power to establish the preferences and rights of each class or series of
Preferred Stock, the Board of Directors of each of the Corporation and the
Operating Company may afford the holders of any series or class of Preferred
Stock preferences, powers and rights, voting or otherwise, senior to the rights
of holders of shares of Corporation Common Stock or Operating Company Common
Stock, respectively. The issuance of Preferred Stock could have the effect of
delaying or preventing a change in control of the Corporation or the Operating
Company.
Terms
Reference is made to the Prospectus Supplement relating to the Preferred
Stock offered thereby for specific terms, including:
(1) The title and stated value of such Preferred Stock and whether such
Preferred Stock is paired;
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock;
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock;
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable;
(5) The procedures for any auction and remarketing, if any, for such
Preferred Stock;
(6) The provision for a sinking fund, if any, for such Preferred Stock;
(7) The provision for redemption, if applicable, of such Preferred
Stock;
(8) Any listing of such Preferred Stock on any securities exchange;
(9) The terms and conditions, if applicable, upon which such Preferred
Stock will be convertible into Paired Common Stock, including the
conversion price or rate (or manner of calculation thereof);
(10) Any other specific terms, preferences, rights, limitations or
restrictions of such Preferred Stock;
(11) A discussion of federal income tax considerations applicable to such
Preferred Stock;
(12) The relative ranking and preference of such Preferred Stock as to
dividend rights and rights upon liquidation, dissolution or winding up of
the affairs of the Corporation or the Operating Company, respectively;
(13) Any limitations on issuance of any series of Preferred Stock ranking
senior to or on a parity with such series of Preferred Stock as to dividend
rights and rights upon liquidation, dissolution or winding up of the
affairs of the Corporation or the Operating Company, respectively; and
(14) Any limitations on direct or beneficial ownership and restrictions
on transfer, in each case as may be appropriate to preserve the status of the
Corporation as a REIT.
Rank
Unless otherwise specified in the Prospectus Supplement, the Preferred Stock
will, with respect to dividend rights and rights upon liquidation, dissolution
or winding up of the Corporation or the Operating Company, as the case may be,
rank (i) senior to all classes or series of Paired Common Stock, and to all
equity securities ranking junior to such Preferred Stock, (ii) on a parity with
all equity securities issued by the Corporation or the Operating Company,
respectively, the terms of which specifically provide that such equity
securities rank on a parity with the Preferred Stock and (iii) junior to all
equity securities issued by the Corporation or the Operating Company,
respectively, the terms of which specifically provide that such equity
securities rank senior to the Preferred Stock. The term "equity securities" does
not include convertible debt securities.
Dividends
Holders of the Preferred Stock of each series will be entitled to receive,
when, as and if declared by the Board of Directors of the Corporation or the
Board of Directors of the Operating Company, as the case may be, out of the
respective assets of the Corporation or the Operating Company legally available
for payment, cash dividends at such rates and on such dates as will be set forth
in the applicable Prospectus Supplement. Each such dividend shall be payable to
holders of record as they appear on the share transfer books of the Corporation
or the Operating Company, as the case may be, on such record dates as shall be
fixed by the Board of Directors of the Corporation or the Board of Directors of
the Operating Company, as the case may be.
Dividends on any series of the Preferred Stock may be cumulative or non-
cumulative, as provided in the applicable Prospectus Supplement. Dividends, if
cumulative, will be cumulative from and after the date set forth in the
applicable Prospectus Supplement. If the Board of Directors of the Corporation
or the Board of Directors of the Operating Company, as the case may be, fails to
declare a dividend payable on a dividend payment date on any series of the
Preferred Stock for which dividends are non-cumulative, then the holders of such
series of the Preferred Stock will have no right to receive a dividend in
respect of the dividend period ending on such dividend payment date, and the
Corporation or the Operating Company, as the case may be, will have no
obligation to pay the dividend accrued for such period, whether or not dividends
on such series are declared payable on any future dividend payment date.
If Preferred Stock of any series is outstanding, no dividends will be
declared or paid or set apart for payment on any capital stock of the
Corporation or the Operating Company, as the case may be, of any other series
ranking, as to dividends, on a parity with or junior to the Preferred Stock of
such series for any period unless (i) if such series of Preferred Stock has a
cumulative dividend, full cumulative dividends have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
is set apart for such payment on the Preferred Stock of such series for all past
dividend periods and the then current dividend period or (ii) if such series of
Preferred Stock does not have a cumulative dividend, full dividends for the then
current dividend period have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for such
payment on the Preferred Stock of such series. When dividends are not paid in
full (or a sum sufficient for such full payment is not so set apart) upon
Preferred Stock of any series and the shares of any other series of Preferred
Stock ranking on a parity as to dividends with the Preferred Stock of such
series, all dividends declared upon Preferred Stock of such series and any other
series of Preferred Stock ranking on a parity as to dividends with such
Preferred Stock shall be declared pro rata so that the amount of dividends
declared per share of Preferred Stock of such series and such other series of
Preferred Stock shall, in all cases, bear to each other the same ratio that
accrued dividends per share on the Preferred Stock of such series (which shall
not include any accumulation in respect of unpaid dividends for prior dividend
periods if such Preferred Stock does not have a cumulative dividend) and such
other series of Preferred Stock bear to each other. No interest, or sum of money
in lieu of interest, shall be payable in respect of any dividend payment or
payments on Preferred Stock of such series which may be in arrears.
Except as provided in the immediately preceding paragraph, unless (i) if
such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
is set apart for payment for all past dividend periods and the then current
dividend period and (ii) if such series of Preferred Stock does not have a
cumulative dividend, full dividends on the Preferred Stock of such series have
been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof is set apart for payment for the then
current dividend period, no dividends (other than of shares of Paired Common
Stock or other shares of capital stock ranking junior to the Preferred Stock
of such series as to dividends and upon liquidation) shall be declared or paid
or set aside for payment nor shall any other distribution be declared or made
upon the Paired Common Stock, or any other capital stock of the Corporation or
the Operating Company, as the case may be, ranking junior to or on a parity with
the Preferred Stock of such series as to dividends and upon liquidation, nor
shall any shares of Paired Common Stock, or any other shares of capital stock of
the Corporation or the Operating Company, as the case may be, ranking junior to
or on a parity with the Preferred Stock of such series as to dividends or upon
liquidation be redeemed, purchased or otherwise acquired for any consideration
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Corporation or the Operating Company, as
the case may be, (except by conversion into or exchange for other capital stock
of the Corporation or the Operating Company, as the case may be, ranking junior
to the Preferred Stock of such series as to dividends and upon liquidation).
Any dividend payment made on shares of a series of Preferred Stock shall
first be credited against the earliest accrued but unpaid dividends due with
respect to shares of such series which remain payable.
Redemption
If so provided in the applicable Prospectus Supplement, the Preferred Stock
will be subject to mandatory redemption or redemption at the option of the
Corporation or the Operating Company, as the case may be, as a whole or in part,
in each case upon the terms, at the times and at the redemption prices set forth
in such Prospectus Supplement.
The Prospectus Supplement relating to a series of Preferred Stock that is
subject to mandatory redemption will specify the number of shares of such
Preferred Stock that shall be redeemed by the Corporation or the Operating
Company, as the case may be, in each year commencing after a date to be
specified, at a redemption price per share to be specified, together with an
amount equal to all accrued and unpaid dividends thereon (which shall not, if
such Preferred Stock does not have a cumulative dividend, include any
accumulation in respect of unpaid dividends for prior dividend periods) to the
date of redemption. The redemption price may be payable in cash or other
property, as specified in the applicable Prospectus Supplement. If the
redemption price for Preferred Stock of any series is payable only from the net
proceeds of the issuance of shares of capital stock of the Corporation or the
Operating Company, as the case may be, the terms of such Preferred Stock may
provide that, if no such shares of capital stock shall have been issued or to
the extent the net proceeds from any issuance are insufficient to pay in full
the aggregate redemption price then due, such Preferred Stock shall
automatically and mandatorily be converted into the applicable shares of capital
stock of the Corporation or the Operating Company, as the case may be, pursuant
to conversion provisions specified in the applicable Prospectus Supplement.
Notwithstanding the foregoing, unless (i) if a series of Preferred Stock has a
cumulative dividend, full cumulative dividends on all shares of such series of
Preferred Stock shall have been or contemporaneously are declared and paid or
declared and a sum sufficient for the payment thereof is set apart for payment
for all past dividend periods and the then current dividend period and (ii) if a
series of Preferred Stock does not have a cumulative dividend, full dividends on
all shares of the Preferred Stock of such series have been or contemporaneously
are declared and paid or declared and a sum sufficient for the payment thereof
is set apart for payment for the then current dividend period, no shares of such
series of Preferred Stock shall be redeemed unless all outstanding shares of
Preferred Stock of such series are simultaneously redeemed; provided, however,
that the foregoing shall not prevent the purchase or acquisition of Preferred
Stock of such series to preserve the status of the Corporation as a REIT or
pursuant to a purchase or exchange offer made on the same terms to holders of
all outstanding shares of Preferred Stock of such series. In addition, unless
(i) if such series of Preferred Stock has a cumulative dividend, full cumulative
dividends on all outstanding shares of such series of Preferred Stock have been
or contemporaneously are declared and paid or declared and a sum sufficient for
the payment thereof is set apart for payment for all past dividend periods and
the then current dividend period and (ii) if such series of Preferred Stock does
not have a cumulative dividend, full dividends on the Preferred Stock of such
series have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof is set apart for payment for the then
current dividend period, the Corporation or the Operating Company, as the case
may be, shall not purchase or otherwise acquire directly or indirectly any
shares of Preferred Stock of such series (except by conversion into or exchange
for capital shares of the Corporation or the Operating Company, as the case may
be, ranking junior to the Preferred Stock of such series as to dividends and
upon liquidation); provided, however, that the foregoing shall not prevent the
purchase or acquisition of shares of Preferred Stock of such series to preserve
the status of the Corporation as a REIT or pursuant to a purchase or exchange
offer made on the same terms to holders of all outstanding shares of Preferred
Stock of such series.
If fewer than all of the outstanding shares of Preferred Stock of any series
are to be redeemed, the number of shares to be redeemed will be determined by
the Corporation or the Operating Company, as the case may be, and such shares
may be redeemed pro rata from the holders of record of such shares in proportion
to the number of such shares held or for which redemption is requested by such
holder (with adjustments to avoid redemption of fractional shares) or by any
other equitable manner determined by the Corporation or the Operating Company,
as the case may be.
Notice of redemption will be mailed at least 30 days but not more than 60 days
before the redemption date to each holder of record of Preferred Stock of any
series to be redeemed at the address shown on the stock transfer books of the
Corporation or the Operating Company, as the case may be. Each notice shall
state: (i) the redemption date; (ii) the number of shares and series of the
Preferred Stock to be redeemed; (iii) the redemption price; (iv) the place or
places where certificates for such Preferred Stock are to be surrendered for
payment of the redemption price; (v) that dividends on the shares to be redeemed
will cease to accrue on such redemption date; and (vi) the date upon which the
holder's conversion rights, if any, as to such shares shall terminate. If fewer
than all the shares of Preferred Stock of any series are to be redeemed, the
notice mailed to each such holder thereof shall also specify the number of
shares of Preferred Stock to be redeemed from each such holder. If notice of
redemption of any Preferred Stock has been given and if the funds necessary for
such redemption have been set aside by the Corporation or the Operating Company,
as the case may be, in trust for the benefit of the holders of any Preferred
Stock so called for redemption, then from and after the redemption date
dividends will cease to accrue on such Preferred Stock, and all rights of the
holders of such shares will terminate, except the right to receive the
redemption price.
Liquidation Preference
Upon any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation or the Operating Company, as the case may be,
then, before any distribution or payment shall be made to the holders of any
Paired Common Stock or any other class or series of capital stock of the
Corporation or the Operating Company, as the case may be, ranking junior to the
Preferred Stock in the distribution of assets upon any liquidation, dissolution
or winding up of the Corporation or the Operating Company, as the case may be,
the holders of each series of Preferred Stock shall be entitled to receive out
of assets of the Corporation or the Operating Company, as the case may be,
legally available for distribution to stockholders liquidating distributions in
the amount of the liquidation preference per share, if any, set forth in the
applicable Prospectus Supplement, plus an amount equal to all dividends accrued
and unpaid thereon (which shall not include any accumulation in respect of
unpaid noncumulative dividends for prior dividend periods). After payment of the
full amount of the liquidating distributions to which they are entitled, the
holders of Preferred Stock will have no right or claim to any of the remaining
assets of the Corporation or the Operating Company, as the case may be. In the
event that, upon any such voluntary or involuntary liquidation, dissolution or
winding up, the available assets of the Corporation or the Operating Company, as
the case may be, are insufficient to pay the amount of the liquidating
distributions on all outstanding shares of Preferred Stock and the corresponding
amounts payable on all shares of other classes or series of capital stock of the
Corporation or the Operating Company, as the case may be, ranking on a parity
with the Preferred Stock in the distribution of assets, then the holders of the
Preferred Stock and all other such classes or series of capital stock shall
share ratably in any such distribution of assets in proportion to the full
liquidating distributions to which they would otherwise be respectively
entitled.
If liquidating distributions shall have been made in full to all holders of
Preferred Stock, the remaining assets of the Corporation or the Operating
Company, as the case may be, shall be distributed among the holders of any other
classes or series of capital stock ranking junior to the Preferred Stock upon
liquidation, dissolution or winding up, according to their respective rights and
preferences and in each case according to their respective number of shares. For
such purposes, the consolidation or merger of the Corporation or the Operating
Company, as the case may be, with or into any other corporation, trust or
entity, or the sale, lease or conveyance of all or substantially all of the
property or business of the Corporation or the Operating Company, as the case
may be, shall not be deemed to constitute a liquidation, dissolution or winding
up of the Corporation or the Operating Company, as the case may be.
Voting Rights
Holders of the Preferred Stock will not have any voting rights, except as
set forth below or as otherwise from time to time required by law or as
indicated in the applicable Prospectus Supplement.
Unless provided otherwise for any series of Preferred Stock, so long as any
shares of Preferred Stock of a series remain outstanding, the Corporation or the
Operating Company, as the case may be, will not, without the affirmative vote or
consent of the holders of at least two-thirds of the shares of such series of
Preferred Stock outstanding at the time, given in person or by proxy, either in
writing or at a meeting (such series voting separately as a class), (i)
authorize or create, or increase the authorized or issued amount of, any class
or series of capital stock ranking prior to such series of Preferred Stock with
respect to payment of dividends or the distribution of assets upon liquidation,
dissolution or winding up, or reclassify any authorized capital stock of the
Corporation or the Operating Company, as the case may be, into such shares, or
create, authorize or issue any obligation or security convertible into or
evidencing the right to purchase any such shares or (ii) amend, alter or repeal
the provisions of the Corporation Charter or the Operating Company Charter or
the Designating Amendment for such series of Preferred Stock, whether by merger,
consolidation or otherwise (any such occurrence, an "Event"), so as to
materially and adversely affect any right, preference, privilege or voting power
of such series of Preferred Stock or the holders thereof; provided, however,
with respect to the occurrence of any of the Events set forth in (ii) above, so
long as the Preferred Stock remains outstanding with the terms thereof
materially unchanged, taking into account that, upon the occurrence of an Event,
the Corporation or the Operating Company, as the case may be, may not be the
surviving entity, the occurrence of any such Event shall not be deemed to
materially and adversely affect such rights, preferences, privileges or voting
power of holders of Preferred Stock, and provided further that (A) any increase
in the amount of the authorized Preferred Stock or the creation or issuance of
any other series of Preferred Stock or (B) any increase in the amount of
authorized shares of such series or any other series of Preferred Stock, in each
case ranking on a parity with or junior to the Preferred Stock of such series
with respect to payment of dividends or the distribution of assets upon
liquidation, dissolution or winding up, shall not be deemed to materially and
adversely affect such rights, preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of such series of Preferred Stock shall
have been redeemed or called for redemption and sufficient funds shall have
been deposited in trust to effect such redemption.
Conversion Rights
The terms and conditions, if any, upon which any series of Preferred Stock
is convertible into Paired Common Stock will be set forth in the applicable
Prospectus Supplement relating thereto. Such terms will include the number of
shares of Paired Common Stock into which the shares of Preferred Stock are
convertible, the conversion price or rate (or manner of calculation thereof),
the conversion period, provisions as to whether conversion will be at the
option of the holders of the Preferred Stock or the Corporation or the Operating
Company, as the case may be, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event of the
redemption of such series of Preferred Stock.
Restrictions on Ownership
For the Corporation to qualify as a REIT under the Code, not more than 50% in
value of its outstanding capital stock may be owned, directly or indirectly, by
five or fewer individuals (as defined in the Code to include certain entities)
during the last half of a taxable year. To assist the Corporation in meeting
this requirement, the Corporation may take certain actions to limit the
beneficial ownership, directly or indirectly, by a single person of the
Corporation's outstanding equity securities, including any Preferred Stock of
the Corporation. Therefore, the Designating Amendment for each series of
Preferred Stock of the Corporation may contain provisions restricting the
ownership and transfer of the Preferred Stock. The applicable Prospectus
Supplement will specify any additional ownership limitations relating to a
series of Preferred Stock. See "Restrictions on Transfers of Capital Stock."
Patriot Series A Preferred Stock
In connection with the Wyndham Acquisition, the Corporation issued
4,860,876 shares of Series A Preferred Stock (the "Patriot Series A Preferred
Stock") to CF Securities, L.P., the principal shareholder of Wyndham prior to
the Wyndham Acquisition, in accordance with the provisions of the Certificate of
Designation for the Patriot Series A Preferred Stock (the "Certificate of
Designation"). The Patriot Series A Preferred Stock is a series designated out
of the Preferred Stock of the Corporation. The following is a summary of certain
provisions of the Patriot Series A Preferred Stock. This summary does not
purport to be complete and is subject to, and qualified in its entirety by, the
provisions of the Corporation Charter and the Certificate of Designation.
Each share of Patriot Series A Preferred Stock is entitled to dividends
when, as and if declared and paid on the shares of Paired Common Stock in an
amount equal to the sum of the dividends paid on a share of Paired Common Stock.
Dividends on the Patriot Series A Preferred Stock will rank pari passu with
dividends on the shares of Paired Common Stock.
The Patriot Series A Preferred Stock is entitled to one vote per share,
voting together as a class with the shares of the Corporation Common Stock, on
any matter submitted for a vote of the stockholders of the Corporation. The
Patriot Series A Preferred Stock is convertible at any time into shares of
Paired Common Stock on a one-for-one basis by the holders thereof, subject to
the ownership limit provisions set forth in the Charters. In addition, the
Patriot Series A Preferred Stock is mandatorily convertible at any time and in
any amount upon notice by the Corporation, provided that the amount so converted
will not cause a violation of the ownership limit provisions set forth in the
Charters.
Upon a liquidation, dissolution or winding up of the Corporation, each
holder of Patriot Series A Preferred Stock is entitled to receive, on a per
share basis, (i) the Dissolution Preference (as defined below) and (ii) a
ratable share, together with the holders of Corporation Common Stock, in the
assets of the Corporation available for distribution on the Corporation Common
Stock. The term "Dissolution Preference" means, as applicable, either (A) if the
Operating Company has previously been or is simultaneously liquidated, dissolved
or wound up, a preference equal to the amount per share of Operating Company
Common Stock which was or will be received by the holders of Operating Company
Common Stock upon the liquidation, dissolution or winding up of the Operating
Company or (B) if the Operating Company has not previously been or is not
simultaneously liquidated, dissolved or wound up, a preference per share equal
to an amount determined by an independent investment banker selected by the
Corporation Board (with the agreement of the majority holder of the Patriot
Series A Preferred Stock, if there is one at such time) to be equal to the then
current value of a share of Operating Company Common Stock, without regard to
the paired share structure of the Companies. If the Operating Company has been
previously liquidated, dissolved or wound up, then any Dissolution Preference
will accrue interest at the applicable federal rate from the date the
liquidating distributions were made on the Operating Company Common Stock unless
and until paid.
Transfer Agent
The transfer agent and registrar for the Preferred Stock will be set forth
in the applicable Prospectus Supplement. The transfer agent and registrar for
the Patriot Series A Preferred Stock is American Stock Transfer & Trust Company
of New York, New York.
RESTRICTIONS ON TRANSFERS OF CAPITAL STOCK
For the Corporation to qualify as a REIT under the Code, among other
things, not more than 50% in value of its outstanding capital stock may be
owned, directly or indirectly, by five or fewer individuals (defined in the Code
to include certain entities) during the last half of a taxable year, and such
capital stock must be beneficially owned by 100 or more persons during at least
335 days of a taxable year of 12 months or during a proportionate part of a
shorter taxable year (in each case, other than the first such year). In
addition, the Corporation must meet certain requirements regarding the nature of
its gross income in order to qualify as a REIT. One such requirement is that at
least 75% of the Corporation's gross income for each year must consist of rents
from real property and income from certain other real property investments. The
rents received by Realty Partnership and its subsidiary partnerships from the
Lessees will not qualify as rents from real property if the Corporation owns,
actually or constructively, 10% or more of the ownership interests in any Lessee
within the meaning of Section 856(d)(2)(B) of the Code, the result of which
would be the loss of REIT status for the Corporation. See "Certain Federal
Income Tax Considerations--REIT Qualification."
In order to protect the Corporation against the risk of losing its status
as a REIT and to otherwise protect the Corporation from the consequences of a
concentration of ownership among its stockholders, the Charters provide, subject
to certain exceptions, that no single person (which includes a "group" of
persons) (other than an entity that is either a trust as described in Section
401(a) of the Code and exempt from tax under Section 501(a) of the Code or a
person that is registered under the Investment Company Act of 1940 (a "Look-
Through Entity")) may Beneficially Own or Constructively Own (as those terms are
defined below) in excess of 8.0% (the "Ownership Limit") of the outstanding
shares of any class or series of outstanding capital stock of the Corporation or
the Operating Company (collectively, the "Equity Stock"), unless the Ownership
Limit is waived by the Board of Directors of the relevant company in accordance
with the Charters. Any transfer of Equity Stock of the Corporation or the
Operating Company that would (i) result in any person or entity owning, directly
or indirectly, shares of Equity Stock of the Corporation or the Operating
Company in excess of the Ownership Limit, unless the Ownership Limit is waived
by the Board of Directors of the relevant corporation in accordance with the
Charters, (ii) result in the capital stock of the Corporation being beneficially
owned (within the meaning of Section 856(a)(5) of the Code) by fewer than 100
persons within the meaning of Section 856(a)(5) of the Code, (iii) result in the
Corporation being "closely held" within the meaning of Section 856(h) of the
Code or (iv) cause the Corporation to own, actually or constructively, 10% or
more of the ownership interests in a tenant of the real property of the
Corporation or a subsidiary of the Corporation within the meaning of Section
856(d)(2)(B) of the Code, shall be void ab initio, and the intended transferee
will acquire no right or interest in such shares of Equity Stock. For purposes
of the Charters, "Beneficial Ownership" means, with respect to any individual or
entity, ownership of shares of Equity Stock equal to the sum of (i) the shares
of Equity Stock directly or indirectly owned by such individual or entity, (ii)
the number of shares of Equity Stock treated as owned directly or indirectly by
such individual or entity through the application of the constructive ownership
rules of Section 544 of the Code, as modified by Section 856(h)(1)(B) of the
Code, and (iii) the number of shares of Equity Stock which such individual or
entity is deemed to beneficially own pursuant to Rule 13d-3 under the Exchange
Act. The Charters provide that pension plans described in Section 401(a) of the
Code and mutual funds registered under the Investment Company Act of 1940 are
treated as Look-Through Entities that are subject to a 9.8% "Look-Through
Ownership Limit." Pension plans and mutual funds are among the entities that are
not treated as holders of stock under the "five or fewer" requirement and the
beneficial owners of such entities will be counted as holders for this purpose.
For purposes of computing the percentage of shares of any class or series of
Equity Stock of the Corporation or the Operating Company Beneficially Owned by
any person or entity, any shares of Equity Stock of the Corporation or the
Operating Company which are deemed to be Beneficially Owned by such person or
entity pursuant to Rule 13d-3 of the Exchange Act but which are not outstanding
shall be deemed to be outstanding. The terms "Beneficial Owner," "Beneficially
Owns" and "Beneficially Owned" shall have correlative meanings. Also for
purposes of the Charters, "Constructive Ownership" means ownership of shares of
Equity Stock by an individual or entity who is or would be treated as a direct
or indirect owner of such shares of Equity Stock through the application of
Section 318 of the Code, as modified by Section 856(d)(5) of the Code. The terms
"Constructive Owner," "Constructively Owns" and "Constructively Owned" shall
have correlative meanings.
Upon the occurrence of a purported transfer of shares that would result in
a violation of any of the foregoing transfer restrictions, that number of shares
that violate the transfer restrictions shall be automatically converted into an
equal number of shares of Excess Stock and transferred to a trust (a "Trust")
for the benefit of a charitable beneficiary (a "Beneficiary") effective on the
Trading Day (as defined below) prior to the date of the purported transfer of
such shares, and the record holder of the shares of Equity Stock that are
converted into shares of Excess Stock (a "Prohibited Owner") shall submit such
number of shares of Equity Stock to the Corporation or the Operating Company, as
the case may be, for registration in the name of the trustee of the Trust (the
"Trustee"). In the case of Equity Stock that is paired, upon the conversion of a
share of Equity Stock into a share of Excess Stock, the corresponding paired
share of that same class or series of Equity Stock of the other company shall
simultaneously be converted into a share of Excess Stock; such shares of Excess
Stock shall be paired and shall be simultaneously transferred to a Trust. Upon
the occurrence of such a conversion of shares of any class or series of Equity
Stock into an equal number of shares of Excess Stock, such shares of Equity
Stock shall be automatically retired and canceled, without any action required
by the Board of Directors of either of the Corporation as the Operating Company,
and shall thereupon be restored to the status of authorized but unissued shares
of the particular class or series of Equity Stock from which such Excess Stock
was converted and may be reissued as that particular class or series of Equity
Stock.
Shares of Equity Stock that are converted into shares of Excess Stock and
transferred to a Trust shall be held in trust for the exclusive benefit of the
Beneficiary. Shares of Excess Stock will remain issued and outstanding shares of
stock. Each share of Excess Stock shall be entitled to the same dividends and
distributions (as to both timing and amount) as may be declared by the
Corporation Board or the Operating Company Board, as the case may be, as shares
of the class or series of Equity Stock from which such Excess Stock was
converted. The Trustee, as record holder of the shares of Excess Stock, shall be
entitled to receive all dividends and distributions and shall hold all such
dividends or distributions in trust for the benefit of the Beneficiary. The
Prohibited Owner with respect to such shares of Excess Stock shall repay to the
Trust the amount of any dividends or distributions received by it (i) that are
attributable to any shares of Equity Stock that have been converted into shares
of Excess Stock and (ii) the record date of which was on or after the date that
such shares were converted into shares of Excess Stock. The Corporation and the
Operating Company shall take all measures that they determine reasonably
necessary to recover the amount of any such dividend or distribution paid to a
Prohibited Owner, including, if necessary, withholding any portion of future
dividends or distributions payable on shares of Equity Stock beneficially owned
or constructively owned by the person who, but for the restrictions on transfer,
would constructively own or beneficially own the shares of Excess Stock and, as
soon as reasonably practicable following receipt or withholding thereof, shall
pay over to the Trust for the benefit of the Beneficiary the dividends so
received or withheld, as the case may be.
In the event of any voluntary or involuntary liquidation of, or winding up
of, or any distribution of the assets of, the Corporation or the Operating
Company, each holder of shares of Excess Stock shall be entitled to receive,
ratably with each other holder of shares of Equity Stock of the same class or
series from which the Equity Stock was converted, that portion of the assets of
the Corporation or the Operating Company, as the case may be, that is available
for distribution to the holders of such class or series of Equity Stock. The
Trust shall distribute to the Prohibited Owner the amounts received upon such
liquidation, dissolution, or winding up, or distribution; provided, however,
that the Prohibited Owner shall not be entitled to receive amounts in excess of,
in the case of a purported transfer in which the Prohibited Owner gave value for
shares of Equity Stock and which transfer resulted in the conversion of the
shares into shares of Excess Stock, the price per share, if any, such Prohibited
Owner paid for the shares of Equity Stock (which, in the case of Equity Stock
that is paired, shall equal the price paid per share multiplied by the most
recent Valuation Percentage (as defined below)) and, in the case of a non-
transfer event or transfer in which the Prohibited Owner did not give value for
such shares (e.g., if the shares were received through a gift or devise) and
which non-transfer event or transfer, as the case may be, resulted in the
conversion of the shares into shares of Excess Stock, the price per share equal
to the Market Price (as defined below) on the date of such non-transfer event or
transfer. Any remaining amount in such Trust shall be distributed to the
Beneficiary.
Each share of Excess Stock shall entitle the holder to the number of votes
the holder would have, if such share of Excess Stock was a share of Equity Stock
of the same class or series from which such Excess Stock was converted, on all
matters submitted to a vote at any meeting of stockholders. The holders of
shares of Excess Stock converted from the same class or series of Equity Stock
shall vote together with the holders of such Equity Stock as a single class on
all such matters. The Trustee, as record holder of the shares of Excess Stock,
shall be entitled to vote all shares of Excess Stock. Any vote taken by a
Prohibited Owner prior to the discovery by the Corporation or the Operating
Company, as the case may be, that the shares of Equity Stock were exchanged for
shares of Excess Stock will be rescinded as void ab initio.
The Trustee shall have the exclusive and absolute right to designate one or
more permitted transferees (each, a "Permitted Transferee") of any and all
shares of Excess Stock if the Corporation or the Operating Company or both, in
the case of Excess Stock that is paired, to exercise its or their option with
respect to such shares as described below; provided, however, that (i) the
Permitted Transferee so designated purchases for valuable consideration (whether
in a public or private sale) the shares of Excess Stock (which, in the case of
Excess Stock that is paired, shall equal the price paid per share multiplied by
the most recent Valuation Percentage) and (ii) the Permitted Transferee so
designated may acquire such shares of Excess Stock without violating any of the
aforementioned transfer restrictions and without such acquisition resulting in
the exchange of such shares of Equity Stock so acquired for shares of Excess
Stock and the transfer of such shares of Excess Stock to a Trust. Upon the
designation by the Trustee of a Permitted Transferee, the Trustee shall cause to
be transferred to the Permitted Transferee that number of shares of Excess Stock
of the Corporation or the Operating Company, as the case may be, acquired by the
Permitted Transferee. Upon such transfer of the shares of Excess Stock to the
Permitted Transferee, such shares of Excess Stock shall be automatically
converted into an equal number of shares of Equity Stock of the same class and
series from which such Excess Stock was converted. In the case of Equity Stock
that is paired, upon the conversion of a share of Excess Stock into a share of
Equity Stock of the same class or series from which such Excess Stock was
converted, the corresponding paired share of Excess Stock of the other company
shall simultaneously be converted into a share of Equity Stock of the same class
or series from which such Excess Stock was converted and such shares of Equity
Stock shall be paired. Upon the occurrence of such a conversion of shares of
Excess Stock into an equal number of shares of Equity Stock, such shares of
Excess Stock shall be automatically retired and canceled, without any action
required by the Corporation Board or the Operating Company Board, and shall
thereupon be restored to the status of authorized but unissued shares of Excess
Stock and may be reissued as such. The Trustee shall (i) cause to be recorded on
the stock transfer books of the Corporation or the Operating Company or both, in
the case of Excess Stock that is paired, that the Permitted Transferee is the
holder of record of such number of shares of Equity Stock and (ii) distribute to
the Beneficiary any and all amounts held with respect to the shares of Excess
Stock after making payment to the Prohibited Owner. If the transfer of shares of
Excess Stock to a purported Permitted Transferee shall violate any of the
aforementioned transfer restrictions including, without limitation, the
Ownership Limit or the Look-Through Ownership Limit, as the case may be, such
transfer shall be void ab initio as to that number of shares of Excess Stock
that cause the violation of any such restriction when such shares are converted
into shares of Equity Stock and the purported Permitted Transferee shall be
deemed to be a Prohibited Owner and shall acquire no rights in such shares of
Excess Stock. Such shares of Equity Stock shall be automatically re-converted
into Excess Stock and transferred to the Trust from which they were originally
sold. Such conversion and transfer to the Trust shall be effective as of the
close of trading on the Trading Day prior to the date of the transfer to the
purported Permitted Transferee and the provisions of the Charters regarding
compensation to a Prohibited Owner shall apply to such shares with respect to
any future transfer of such shares by the Trust.
A Prohibited Owner shall be entitled to receive from the Trustee following
the sale or other disposition of such shares of Excess Stock the lesser of (i)
(a) in the case of a purported transfer in which the Prohibited Owner gave value
for shares of Equity Stock and which transfer resulted in the conversion of such
shares into shares of Excess Stock, the price per share, if any, such Prohibited
Owner paid for the shares of Equity Stock (which, in the case of Excess Stock
that is paired, shall be determined based on the Valuation Percentage) and (b)
in the case of a non-transfer event or transfer in which the Prohibited Owner
did not give value for such shares (e.g., if the shares were received through a
gift or devise) and which non-transfer event or transfer, as the case may be,
resulted in the conversion of such shares into shares of Excess Stock, the price
per share equal to the Market Price on the date of such non-transfer event or
transfer and (ii) the price per share (which, in the case of Excess Stock that
is paired, shall be determined based on the Valuation Percentage) received by
the Trustee from the sale or other disposition of such shares of Excess Stock.
Any amounts received by the Trustee in respect of such shares of Excess Stock
and in excess of such amounts to be paid the Prohibited Owner shall be
distributed to the Beneficiary.
Shares of Excess Stock shall be deemed to have been offered for sale by a
Trust to the Corporation or the Operating Company or both, in the case of Excess
Stock that is paired, or a designee of such company or companies, at a price per
share equal to the lesser of (i) the price per share (which, in the case of
Excess Stock that is paired, shall be determined based on the Valuation
Percentage) in the transaction that created such shares of Excess Stock (or, in
the case of devise, gift or non-transfer event, the Market Price at the time of
such devise, gift or non-transfer event) or (ii) the Market Price on the date
either company or both companies, in the case of Excess Stock that is paired,
accept such offer. Either company or both companies, in the case of Excess Stock
that is paired, shall have the right to accept such offer for a period of 90
days following the later of (a) the date of the non-transfer event or purported
transfer which results in such shares of Excess Stock or (b) the date on which
either company or both companies, in the case of Excess Stock that is paired,
determine in good faith that a transfer or non-transfer event resulting in
shares of Excess Stock has previously occurred, if either company or both
companies, in the case of Excess Stock that is paired, do not receive a notice
of such transfer or non-transfer event. In the case of Excess Stock that is
paired, neither the Corporation nor the Operating Company shall accept such an
offer with respect to its shares of Excess Stock without the agreement of the
other company to accept such offer with respect to the corresponding shares of
its Excess Stock.
"Market Price" on any date shall mean the average of the Closing Price for
the five consecutive Trading Days ending on such date. "Closing Price" on any
date shall mean the last sale price, regular way, or, in case no such sale takes
place on such day, the average of the closing bid and asked prices, regular way,
in either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the NYSE or,
if the shares of Equity Stock are not listed or admitted to trading on the NYSE,
as reported in the principal consolidated transaction reporting system with
respect to securities listed on the principal national securities exchange on
which the shares of Equity Stock are listed or admitted to trading or, if the
shares of Equity Stock are not listed or admitted to trading on any national
securities exchange, the last quoted price, or if not so quoted, the average of
the high bid and low asked prices in the over-the-counter market, as reported by
the National Association of Securities Dealers, Inc. Automated Quotation System
or, if such system is no longer in use, the principal other automated quotation
system that may then be in use or, if the shares of Equity Stock are not quoted
by any such organization, the average of the closing bid and asked prices as
furnished by a professional market maker making a market in the shares of Equity
Stock. In the case of Equity Stock that is paired, "Market Price" shall mean the
"Market Price" for a share of Paired Common Stock multiplied by a fraction
(expressed as a percentage) determined by dividing the value for such Equity
Stock most recently determined under the Pairing Agreement over the value of a
share of Paired Common Stock most recently determined under the Pairing
Agreement (the "Valuation Percentage"). "Trading Day" shall mean a day on which
the principal national securities exchange on which the shares of Equity Stock
are listed or admitted to trading is open for the transaction of business or, if
the shares of Equity Stock are not listed or admitted to trading on any national
securities exchange, shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in the State of New York are authorized or
obligated by law or executive order to close.
Any person or entity that acquires or attempts to acquire shares of Equity
Stock in violation of the aforementioned transfer restrictions, or any person or
entity that owned shares of Equity Stock that were transferred to a Trust, shall
immediately give written notice to the Corporation or the Operating Company or
both, in the case of Equity Stock that is paired, of such event and shall
provide such other information as the appropriate company or both companies, as
the case may be, may request to determine the effect, if any, of such violation
on Patriot's status as a REIT.
Each person or entity that is an owner, actually or constructively, of
shares of Equity Stock and each person or entity that (including the stockholder
of record) is holding shares of Equity Stock for such an owner shall provide to
the Corporation or the Operating Company or both, in the case of Equity Stock
that is paired, a written statement or affidavit stating such information as the
appropriate company or both companies, as the case may be, may request to
determine the Corporation status as a REIT and to ensure compliance with the
Ownership Limit or the Look-Through Ownership Limit, as the case may be. In
addition, every person or entity that owns of record, actually or
constructively, more than 5%, or such lower percentages as required pursuant to
regulations under the Code, of the outstanding shares of any class or series of
Equity Stock of the Corporation or the Operating Company shall, within 30 days
after January 1 of each year, provide to the Corporation or the Operating
Company or both, in the case of Equity Stock that is paired, a written
statement or affidavit stating the name and address of such owner, the number of
shares of Equity Stock owned, actually or constructively, and a description of
how such shares are held.
All certificates representing shares of Equity Stock shall bear a legend
referring to the aforementioned transfer restrictions. The transfer restrictions
will continue to apply until the Corporation Board determines that it is no
longer in the best interests of the Corporation to attempt to qualify, or to
continue to qualify, as a REIT.
The restrictions on transfer contained in the Charters could have the
effect of discouraging a takeover or other transaction in which holders of some,
or a majority, of shares of Equity Stock might receive a premium from their
shares of Equity Stock over the then prevailing Market Price or which such
holders might believe to be otherwise in their best interest.
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CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The Corporation believes that it has operated and the Corporation intends to
continue to operate in such a manner as to qualify as a REIT under the Code, but
no assurance can be given that such companies have and will at all times so
qualify.
The provisions of the Code pertaining to REITs are highly technical and
complex. The following is a brief and general summary of the material federal
income tax considerations of an investment in the Corporation's and the
Operating Company's Securities to the extent those considerations relate to
the federal income taxation of the Corporation and the Operating Company. To
the extent such considerations relate to the tax treatment of particular
Securities, they will be addressed in the applicable Prospectus Supplement.
Goodwin, Procter & Hoar LLP has reviewed this summary and is of the opinion
that, to the extent that it constitutes matters of law, summaries of legal
matters, or legal conclusions, this summary is accurate in all material
respects. For the particular provisions that govern the federal income tax
treatment of the Corporation and its stockholders, reference is made to
Sections 856 through 860 of the Code and the regulations thereunder. The
following summary is qualified in this entirety by such reference.
The statements in this discussion and the opinions of Goodwin, Procter and
Hoar LLP are based on current provisions of the Code, Treasury Regulations,
the legislative history of the Code, existing administrative rulings and
practices of the Internal Revenue Service (the "IRS"), and judicial decisions.
No assurance can be given that future legislative, judicial, or administrative
actions or decisions, which may be retroactive in effect, will not affect that
accuracy of any statements in this Prospectus. See "--Impact of Proposed Tax
Legislation" below for a discussion of certain legislative proposals that, if
enacted, could alter the tax treatment of the Corporation and could jeopardize
its ability to qualify as a REIT.
EACH INVESTOR IS ADVISED TO CONSULT HIS OR HER OWN TAX ADVISOR REGARDING THE
SPECIFIC TAX CONSEQUENCES TO HIM OR HER OF AN INVESTMENT IN THE COMPANIES'
SECURITIES.
REIT Qualification
General
If certain detailed conditions imposed by the provisions of the Code are
met, entities such as the Corporation that invest primarily in real estate and
that otherwise would be treated for federal income tax purposes as corporations
generally are not taxed at the corporate level on their "real estate investment
trust taxable income" that is currently distributed to stockholders. This
treatment substantially eliminates the "double taxation" on earnings (i.e., at
both the corporate and stockholder levels) that ordinarily results from the use
of corporations.
The Corporation has been and will continue to be operated in a manner
intended to allow it to qualify as a REIT. The Corporation
intends to operate in the future in a manner so that the Corporation will
continue to qualify as a REIT. If the Corporation fails to qualify as a REIT in
any taxable year, the Corporation will be subject to federal income taxation as
if it were a domestic corporation, and the Corporation's stockholders will be
taxed in the same manner as stockholders of ordinary corporations. In this
event, the Corporation could be subject to potentially significant tax
liabilities, and the amount of cash available for distribution to stockholders
would be reduced and possibly eliminated. Unless entitled to relief under
certain Code provisions, and subject to the discussion below regarding Section
269B(a)(3) of the Code, the Corporation also would be disqualified from re-
electing REIT status for the four taxable years following the year during which
qualification was lost. Failure of the Corporation's predecessor, Patriot, to
have qualified as a REIT also could cause the Corporation to be disqualified as
a REIT and/or subject the Corporation to significant tax liabilities.
Goodwin, Procter & Hoar, LLP, special tax counsel to the Corporation, has
rendered an opinion to the Corporation to the effect that commencing with the
taxable year ending December 31, 1983, the Corporation has been organized and
operated in conformity with the requirements for qualification and taxation as a
REIT under the Code, and the Corporation's proposed method of operation will
enable it to continue to meet the requirements for qualification and taxation as
a REIT under the Code. Investors should be aware, however, that opinions of
counsel are not binding upon the IRS or any court. Goodwin, Procter & Hoar LLP's
opinion is based on various assumptions and is conditioned upon certain
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representations made by the Corporation regarding the Corporation's and
Patriot's compliance with the requirements for REIT qualification. Counsel has
not verified and will not verify the Corporation's and Patriot's compliance with
these tests. Any inaccuracy in such assumptions and representations could
adversely affect this opinion. Qualification and taxation as a REIT depends upon
the Corporation's having met and continuing to meet, through actual annual
operating results, the distribution levels, stock ownership, and other various
qualification tests imposed under the Code. Goodwin, Procter & Hoar LLP has not
reviewed and will not review the Corporation's compliance with those tests on a
continuing basis. Moreover, qualification as a REIT involves the application of
highly technical and complex Code provisions for which there are only limited
judicial or administrative interpretations and the determination of various
factual matters and circumstances not entirely within the Corporation's control.
The complexity of these provisions is greater in the case of a REIT that owns
hotels and leases them to a corporation with which its stock is paired.
Accordingly, no assurance can be given that the Corporation will satisfy such
tests on a continuing basis. As mentioned above, the opinion of Goodwin, Procter
& Hoar LLP is based on current law and changes in the applicable law could
adversely affect the Corporation's ability to qualify as a REIT.
Paired Shares
Section 269B(a)(3) of the Code provides that if the shares of a REIT and a
non-REIT are paired, then the REIT and the non-REIT shall be treated as one
entity for purposes of determining whether either company qualifies as a REIT.
If Section 269B(a)(3) applied to the Corporation and the Operating Company, then
the Corporation would not be eligible to be taxed as a REIT. Section
269B(a)(3) does not apply, however, if the shares of the REIT and the non-REIT
were paired on June 30, 1983 and the REIT was taxable as a REIT on June 30,
1983. As a result of this grandfathering rule, Section 269B(a)(3) does not
apply to the Corporation. There are, however, no judicial or administrative
authorities interpreting this grandfathering rule and this interpretation, as
well as the opinion of Goodwin, Procter & Hoar LLP regarding the Corporation's
qualification as a REIT, is based solely on the literal language of the statute.
Moreover, if for any reason the Corporation failed to qualify as a REIT in 1983,
the benefit of the grandfathering rule would not be available to the
Corporation, and the Corporation would not qualify as a REIT for any taxable
year. Recently proposed amendments to these grandfathering provisions, if
enacted, would severely limit the Company's ability to utilize the
paired share structure to operate hotels. See "--Impact of Proposed Tax
Legislation."
Potential Reallocation of Income
Due to the paired share structure, the Companies, and their respective
subsidiary entities are controlled by the same interests. As a result, the IRS
could, pursuant to Section 482 of the Code, seek to distribute, apportion or
allocate gross income, deductions, credits or allowances between or among them
if it determines that such distribution, apportionment or allocation is
necessary in order to prevent evasion of taxes or to clearly reflect income.
The Corporation and the Operating Company believe that all material transactions
between the Corporation and the Operating Company, and among them and/or their
subsidiary entities, have been and will be negotiated and structured with the
intention of achieving an arm's-length result. If true, the potential
application of Section 482 of the Code should not have a material effect on the
Corporation and the Operating Company. There can be no assurance, however, that
the IRS will not challenge the terms of such transactions, or that such
challenge would not be successful.
Built-In Gain Tax
If the Corporation recognizes gain on the disposition of an asset acquired
from Wyndham during the ten-year period beginning on the date of the Wyndham
Acquisition then to the extent of the asset's "built-in gain" (i.e., the excess
of the fair market value of such asset at the time of the Wyndham Acquisition
over its then tax basis), the Corporation will be subject to tax on such gain at
the highest regular corporate rate applicable, pursuant to Treasury Regulations
not yet promulgated. The Corporation would be required to distribute 95% of the
excess of the amount of recognized built-in gain over the amount of tax paid in
order to maintain the Corporation's qualification as a REIT. The foregoing
assumes that the Corporation makes an election pursuant to IRS Notice 88-19 with
respect to the Wyndham Acquisition. The Corporation will make the election
pursuant to the IRS Notice 88-19 with respect to the Wyndham Acquisition if such
election is available.
Classification of the Realty Partnership as a Publicly Traded Partnership
Section 7704 of the Code treats certain "publicly traded partnerships" as
corporations. If the Realty Partnership were taxed as a corporation under these
rules, the Corporation would be disqualified as a REIT. A partnership is a
publicly traded partnership if interests in such partnership are either traded
on an established securities market or are "readily tradable on a secondary
market (or the substantial equivalent thereof)." Interests in the Realty
Partnership have not and will not be traded on an established securities market.
Currently, the Realty Partnership relies on restrictions on transfers and
redemptions recently included in its partnership agreement in order to avoid
being taxed as a corporation under Section 7704 of the Code. The Operating
Partnership relies on similar restrictions to avoid taxation as a corporation.
Prior to such amendments, the Realty Partnership relied on an exemption from the
publicly traded partnership rules based on the nature of its income as well as a
safe harbor based on the number of its partners. There can be no assurance that
efforts to avoid taxation as a corporation under these provisions have been or
will be successful.
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Sale of Land by the Corporation
The sale following the Cal Jockey Merger of certain land by the Corporation
to an affiliate of PaineWebber Incorporated (the "PaineWebber Land Sale") was
structured to qualify as a tax-deferred like-kind exchange. There can be no
assurances, however, that such transaction will qualify as a tax-deferred like-
kind exchange. If and to the extent the sale did not qualify as a tax-deferred
like-kind exchange, any capital gain recognized by the Corporation would be
taxed to the Corporation at applicable capital gains rates unless distributed to
stockholders. To the extent that such recognized gain did not qualify for
capital gains treatment, the gain would be combined with the Corporation's other
taxable income, 95% of which must have been distributed each year in order to
maintain the Corporation's status as a REIT. Notwithstanding the foregoing, in
the event that the property in the PaineWebber Land Sale constituted "dealer
property," then the sale could not in any event have qualified as a like-kind
exchange, the gain likely would be subject to a 100% tax, and the amount of gain
would constitute nonqualifying income would have disqualified the Corporation as
a REIT in 1997. Although the Corporation believes that the PaineWebber Land Sale
did not constitute a sale of dealer property, whether or not such sale
constituted a sale of dealer property is a factual determination not susceptible
of legal opinion, and the Corporation did not receive opinions from counsel on
such determination. As a result, the opinion rendered by Goodwin, Procter & Hoar
LLP regarding the Corporation's qualification as a REIT necessarily relies on
representations from the Corporation to the effect that the sale did not
constitute the sale of dealer property.
Effects of Compliance with REIT Requirements
Operating income derived from hotels or a racetrack does not constitute
qualifying income under the REIT requirements. Accordingly, substantially all
of the Corporation's hotels, other than certain hotels held by corporate
subsidiaries controlled by the Operating Company, have been leased to lessees
and the Operating Company and the Corporation will continue to lease such hotels
after the filing of this Prospectus. Similarly, the Corporation has subleased
the land underlying the Racecourse and leased the related improvements to the
Operating Company. Rent derived from such leases will be qualifying income under
the REIT requirements, provided several requirements are satisfied. Among other
requirements, a lease may not have the effect of giving the Corporation a share
of the net income of the lessee, and the amount of personal property leased
under the lease must not exceed a defined low level. In addition, all leases
must qualify as "true" leases for federal income tax purposes (as opposed to
service contracts, joint ventures or other types of arrangements). There are,
however, no controlling Treasury Regulations, published rulings, or judicial
decisions that discuss whether leases similar to the Corporation's leases
constitute "true" leases. Therefore, there can be no complete assurance that the
IRS will not successfully assert a contrary position. The Corporation (excluding
certain corporate subsidiaries controlled by the Operating Company) also may not
provide services, other than customary services and (beginning in 1998) de
minimis non-customary services, to the Lessees or their subtenants.
Payments under a lease will not constitute qualifying income for purposes of
the REIT requirements if the Corporation owns, directly or indirectly, 10% or
more of the ownership interests in the relevant Lessee. Constructive ownership
rules apply, such that, for instance, the Corporation is deemed to own the
assets of stockholders who own 10% or more in value of the stock of the
Corporation. The Charters are therefore designed to prevent a stockholder of
the Corporation from owning Corporation stock or Operating Company stock that
would cause the Corporation to own, actually or constructively, 10% or more of
the ownership interests in a Lessee (including the Operating Company and the
Operating Partnership). Thus, the Corporation should never own, actually or
constructively, 10% or more of a Lessee. However, because the relevant
constructive ownership rules are broad and it is not possible to monitor
continually direct and indirect transfers of Paired Shares, and because the
provisions of the Charters referred to above may not be effective, no absolute
assurance can be given that such transfers, or other events of which the
Corporation has no knowledge, will not cause the Corporation to own
constructively 10% or more of one or more Lessees at some future date.
The REIT requirement tests also impose certain asset tests that limit the
value of the non-real estate assets held by the Corporation. Although the
Corporation will hold substantial non-real estate assets, the Corporation does
not believe that the value of such assets will exceed the applicable limits.
There can be no assurance, however, that the IRS will not challenge these
valuations.
10
<PAGE>
In addition to the considerations discussed above, the REIT requirements
will impose a number of other restrictions on the operations of the Corporation.
For example, net income from sales of property sold to customers in the ordinary
course of business (other than inventory acquired by reason of certain
foreclosures) is subject to a 100% tax unless eligible for a certain safe
harbor. Minimum distribution requirements also generally require the
Corporation to distribute each year at least 95% of its taxable income for the
year (excluding any net capital gain).
Impact of Proposed Tax Legislation
The Corporation's exemption of the anti-pairing rules and its ability to
utilize the paired structure could be revoked or limited as a result of future
legislation. In that regard, on November 5, 1997, Representative William Archer,
Chairman of the Ways and Means Committee of the House of Representatives,
publicly announced that he plans to review the grandfathering rule to determine
whether there should be future restrictions on companies that are grandfathered.
In addition, on February 2, 1998, the Clinton Administration released a
description of the Tax Proposals included in its 1999 budget proposals. If
enacted, the Tax Proposals would impose a freeze on the grandfathered status of
paired share REITs such as the Corporation and a prohibition on REITs acquiring,
after the effective date of the legislation, common stock of a corporation
representing more than 10% of the vote or value of all classes of stock of the
corporation.
There can be no assurance that such legislation or other legislation
affecting REIT qualification or operations will not be enacted, and any such
legislation could have a material effect on the operation of the Companies. For
example, the Tax Proposals, if enacted, would prevent the Operating Company from
leasing and operating real estate assets such as hotels acquired by the
Corporation after the effective date of the legislation. In addition, under
current law, to the extent that the Corporation acquires certain management or
other assets that cannot be directly held by a REIT the Operating Company
generally may contribute such assets to a taxable corporate subsidiary
controlled by the Operating Company, subject to the asset tests that limit the
value of non-real estate assets held by a REIT and subject to the requirements
that a REIT may not hold more than 10% of the voting stock of a single
corporation. The Tax Proposals would generally prohibit the use of such a
structure for assets contributed to such a corporate subsidiary after the
effective date of the legislation, unless the Corporation held 10% or less of
the value, as well as the vote, of the corporation. See the applicable
Prospectus Supplement for further discussion of this issue and any recent
developments relating thereto.
Taxation of the Operating Company; Corporate Subsidiaries
As a C corporation under the Code, the Operating Company is subject to
United States federal income tax on its taxable income at corporate rates.
Certain corporate subsidiaries of the Realty Partnership that are controlled by
the Operating Company also are subject to federal income tax.
11
<PAGE>
PLAN OF DISTRIBUTION
The Corporation and the Operating Company may sell Securities through
underwriters or dealers, directly to one or more purchasers, through agents or
through a combination of any such methods of sale.
The distribution of the Securities may be effected from time to time in one
or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices.
In connection with the sale of Securities, underwriters or agents may receive
compensation from the Corporation, the Operating Company or from purchasers of
Securities, for whom they may act as agents, in the form of discounts,
concessions or commissions. Underwriters may sell Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from the underwriters and/or commissions from the
purchasers for whom they may act as agents. Underwriters, dealers, and agents
that participate in the distribution of Securities may be deemed to be
underwriters under the Securities Act, and any discounts or commissions they
receive from the Corporation or the Operating Company and any profit on the
resale of Securities they realize may be deemed to be underwriting discounts and
commissions under the Securities Act. Any such underwriter or agent will be
identified, and any such compensation received from the Corporation or the
Operating Company will be described, in the applicable Prospectus Supplement.
Unless otherwise specified in the related Prospectus Supplement, each series
of Securities will be a new issue with no established trading market, other
than the Paired Common Stock which is listed on the NYSE. Any shares of Paired
Common Stock sold pursuant to a Prospectus Supplement will be listed on the
NYSE, subject to official notice of issuance. The Corporation or the Operating
Company may elect to list any series of Preferred Stock on an exchange, but is
not obligated to do so. It is possible that one or more underwriters may make
a market in a series of Securities, but will not be obligated to do so and may
discontinue any market making at any time without notice. Therefore, no
assurance can be given as to the liquidity of, or the trading market for, the
Securities.
Under agreements into which, the Corporation or the Operating Company may
enter, underwriters, dealers and agents who participate in the distribution of
Securities may be entitled to indemnification by the Corporation or the
Operating Company against certain liabilities, including liabilities under the
Securities Act.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, or be tenants of, the Corporation or the Operating Company in the
ordinary course of business.
In order to comply with the securities laws of certain states, if
applicable, the Securities offered hereby will be sold in such jurisdictions
only through registered or licensed brokers or dealers. In addition, in
certain states Securities may not be sold unless they have been registered or
qualified for sale in the applicable state or an exemption from the
registration or qualification requirement is available and is complied with.
LEGAL MATTERS
Certain legal matters, including the legality of the securities and federal
income tax considerations, have been passed upon for the Corporation and the
Operating Company by Goodwin, Procter & Hoar LLP, Boston, Massachusetts, as
corporate, securities and tax counsel.
EXPERTS
The Separate and Combined Financial Statements of the Corporation and the
Operating Company (formerly known as Cal Jockey and Bay Meadows, respectively)
and its subsidiary as of December 31, 1996 and 1995, and for each of the three
years in the period ended December 31, 1996, incorporated in this Prospectus by
reference from the Annual Report on Form 10-K for the year ended December 31,
1996, have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report with respect thereto (which expresses an unqualified
opinion and includes an explanatory paragraph relating to a proposed merger and
certain disagreements between Cal Jockey and Bay Meadows) which is incorporated
by reference herein. The combined financial statements of the Partnerships of
Acquired Hotels as of December 31, 1996 and 1995 and for each of the two years
in the period ended December 31, 1996, incorporated in this Prospectus by
reference from the report on Form 8-K/A No. 1 dated September 30, 1997 of
Patriot American Hospitality, Inc. and Patriot American Hospitality Operating
Company have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their report, which is incorporated herein by reference. Each of the
above referenced financial statements are incorporated herein by reference in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
The (a) Consolidated Financial Statements of Patriot as of December 31, 1996
and 1995 and for the year ended December 31, 1996 and the period October 2, 1995
(inception of operations) through December 31, 1995 and the related financial
statement schedules, (b) the Combined Financial Statements of the Initial Hotels
as of December 31, 1994 and for the year ended December 31, 1994 and the period
January 1, 1995 through October 1, 1995, and (c) the Financial Statements of
NorthCoast Hotels, L.L.C. as of December 31, 1996 and the period April 2, 1996
(inception of operations) through December 31, 1996 appearing in Patriot's 1996
Annual Report on Form 10-K (and with respect to the Consolidated Financial
Statements of Patriot referred to above also appearing in the Joint Current
Report on Form 8-K of Patriot American Hospitality, Inc. and Patriot American
Hospitality Operating Company dated July 1, 1997), have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports thereon included
therein and
12
<PAGE>
incorporated herein by reference. With respect to the Combined Financial
Statements of the Initial Hotels, such report is based in part on the reports of
Coopers & Lybrand L.L.P., independent accountants, as set forth in their
respective reports for Certain of the Initial Hotels and Troy Hotel Investors.
The (a) Financial Statements of Buckhead Hospitality Joint Venture as of
December 31, 1995 and for the year then ended, (b) the Combined Financial
Statements of Gateway Hotel Limited Partnership and Wenatchee Hotel Limited
Partnership as of December 31, 1995 and for the year then ended, and (c) the
individual Statements of Direct Revenue and Direct Operating Expenses for the
Plaza Park Suites Hotel and the Roosevelt Hotel for the year ended December 31,
1995, appearing in Patriot's Current Report on Form 8-K, dated April 2, 1996, as
amended (filed April 17, 1996 and June 14, 1996), have been audited by Ernst &
Young LLP, independent auditors, as set forth in their reports thereon included
therein and incorporated herein by reference. The (a) Statement of Direct
Revenue and Direct Operating Expenses of the Mayfair Suites Hotel for the year
ended December 31, 1995, (b) Statement of Direct Revenue and Direct Operating
Expenses of Marriott Windwatch Hotel for the year ended December 29, 1995, and
(c) the Financial Statements of Concorde O'Hare Limited Partnership as of
December 29, 1995 and for the year then ended appearing in Patriot's Current
Report on Form 8-K, dated December 5, 1996 (filed December 5, 1996), have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon included therein and incorporated herein by reference. The (a)
Consolidated Financial Statements of Resorts Limited Partnership as of and for
the years ended December 31, 1996 and 1995, (b) the Financial Statements of CV
Ranch Limited Partnership as of and for the years ended December 31, 1996 and
1995, and (c) the Financial Statements of Telluride Resort and Spa Limited
Partnership as of and for the years ended December 31, 1996 and 1995, appearing
in Patriot's Current Report on Form 8-K, dated January 16, 1997, as amended
(filed January 31, 1997, February 21, 1997, April 8, 1997, April 9, 1997, and
May 19, 1997) have been audited by Ernst & Young LLP, independent auditors, as
set forth in their reports thereon included therein and incorporated herein by
reference. The (a) Consolidated Financial Statements of GAH-II, L.P. as of
December 31, 1996 and 1995 and for the years then ended, (b) the Financial
Statements of G.B.H. Joint Venture (d/b/a Grand Bay Hotel) as of December 31,
1996 and 1995 and for the years then ended, (c) the Financial Statements of
River House Associates (d/b/a Sheraton Gateway Hotel) as of December 31, 1996
and 1995 and for the years then ended, and (d) the Financial Statements of W-L
Tampa, Ltd. (the Sheraton Grand Hotel) as of December 31, 1996 and 1995 and for
the years then ended, appearing in the Joint Current Report on Form 8-K of
Patriot American Hospitality, Inc. and Patriot American Hospitality Operating
Company dated September 30, 1997, as amended (filed October 14, 1997 and October
28, 1997), have been audited by Ernst & Young LLP, independent auditors, as set
forth in their reports thereon included therein and incorporated herein by
reference. The (a) Consolidated Financial Statements of ClubHouse Hotels, Inc.
as of December 31, 1996 and 1995, and for each of the three years in the period
ended December 31, 1996, (b) the Combined Financial Statements of ClubHouse
Acquisition Hotels as of December 31, 1996 and 1995 and for the years then
ended, and (c) the Financial Statements of Valdosta C.I. Associates, L.P. as of
December 31, 1994 and for the year then ended, appearing in Wyndham Hotel
Corporation's Current Report on Form 8-K, dated July 31, 1997, as amended (filed
August 15, 1997 and September 18, 1997), have been audited by Ernst & Young LLP,
independent auditors, as set forth in their reports thereon included therein and
incorporated herein by reference. The (a) Consolidated Financial Statements of
WHG Resorts & Casinos Inc. as of June 30, 1997 and 1996, and for each of the
three years in the period ended June 30, 1997 and the related financial
statement schedule, (b) Financial Statements of Posadas de San Juan Associates
as of June 30, 1997 and 1996, and for each of the three years in the period
ended June 30, 1997 and the related financial statement schedule, (c) Financial
Statements of WKA El Con Associates as of June 30, 1997 and 1996, and for each
of the three years in the period ended June 30, 1997, and (d) Financial
Statements of El Conquistador Partnership L.P. as of March 31, 1997 and 1996,
and for each of the three years in the period ended March 31, 1997, appearing in
the Joint Current Reports on Form 8-K of Patriot American Hospitality, Inc. and
Patriot American Hospitality Operating Company dated September 30, 1997 (filed
November 12, 1997) and December 10, 1997 (filed December 10, 1997) have been
audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon included therein and incorporated herein by reference. Each of
the above referenced financial statements are incorporated herein by reference
in reliance upon such reports given upon the authority of such firm as experts
in accounting and auditing.
The Financial Statements of Certain of the Initial Hotels as of December 31,
1994 and for the period from January 1, 1995 to October 1, 1995 and for the year
ended December 31, 1994, the Financial Statements of Troy Hotel Investors as of
October 1, 1995 and for the period January 1, 1995 to October 1, 1995 and Troy
Park Associates as of December 29, 1994 and for the period January 1, 1994
through December 29, 1994 included in Patriot's 1996 Annual Report on Form 10-K,
the statement of Direct Revenue and Direct Operating Expenses for the Holiday
Inn--Miami Airport for the year ended August 31, 1996 included in Patriot's
Current Report on Form 8-K dated December 5, 1996, the Consolidated Financial
Statements of Wyndham Hotel Corporation as of December 31, 1995 and 1996 and for
each of the three years in the period ended December 31, 1996, included in the
Annual Report on Form 10-K dated March 26, 1997 of Wyndham Hotel Corporation,
the Combined Financial Statements of Snavely Hotels as of December 31, 1996 and
for the year then ended, the Combined Financial Statements of Minneapolis Hotels
as of December 31, 1996 and for the year then ended, and the combined statement
of Direct Revenue and Direct Operating Expenses for the Met Life Hotels for the
year ended December 31, 1996, included in the Report on Form 8-K dated September
17, 1997, and the Financial Statements of SCP ("Buttes") Inc. as of December 31,
1996 and for the year then ended, included in the Report on Form 8-K/A No. 1
dated September 30, 1997, the financial statements of Royal Palace Hotel
Associates as of December 31, 1995 and 1996 and for the years then ended,
included in the Joint Current Report on Form 8-K dated December 10, 1997,
incorporated by reference in this Prospectus, and the consolidated financial
statements of Interstate Hotels Company as of December 31, 1995 and 1996 and for
each of the three years in the period ended December 31, 1996 included in the
Report on Form 8-K dated December 10, 1997, and the financial statements of
Sheraton City Centre as of December 31, 1996 and for the year then ended and the
Statement of Direct Revenues and Direct Operating Expenses for the Wyndham
Emerald Plaza for the year ended December 31, 1996, included in the Current
Report on Form 8-K dated January 5, 1998, which is incorporated by reference
herein have been audited by Coopers & Lybrand, L.L.P., independent accountants,
as set forth in their reports thereon. Each of the above-referenced financial
statements have been incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing.
The Financial Statements of Historic Hotel Partners of Birmingham Limited
Partnership as of December 31, 1994 and 1995 and for the years then ended, the
Financial Statements of Historic Hotel Partners of Chicago, Limited Partnership
as of December 31, 1996 and for the year then ended, and the Financial
Statements of Historic Hotel Partners of Nashville, Limited Partnership as of
December 31, 1996 and for the year then ended incorporated by reference in this
Prospectus, have been audited by Pannell Kerr Forster PC, independent auditors,
as set forth in their reports thereon. Each of the above-referenced financial
statements have been incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing.
The CHC Lease Partners financial statements as of December 31, 1996 and 1995
and for the year ended December 31, 1996 and the period inception (October 2,
1995) through December 31, 1995, incorporated by reference in this Prospectus,
by reference to the Current Report on Form 8-K dated July 1, 1997, and the CHC
International, Inc. Hospitality Division financial statements as of November 30,
1996 and 1995 and for the years then ended, incorporated by reference in this
Prospectus, by reference to the Current Report on Form 8-K dated September 30,
1997, as amended, and the Joint Current Report on Form 8-K dated February 9,
1998 have been so incorporated in reliance on the reports of Price Waterhouse
LLP, independent certified public accountants, given on the authority of said
firm as experts in auditing and accounting.
13
<PAGE>
The Combined Financial Statements of the Crow Family Hotel Partnerships
incorporated by reference in this Prospectus have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in accounting and auditing in giving such
reports.
The Financial Statements of each of Wichita C.I. Associates III, L.P.,
Topeka C.I. Associates, L.P., Albuquerque C.I. Associates, L.P. and C.I.
Nashville, Inc. as of December 31, 1995 and 1994 and for the two years in the
period ended December 31, 1995, incorporated by reference in this Prospectus
have been audited by Mayer Hoffman McCann L.C., independent auditors, as
stated in their report with respect thereto and incorporated herein by
reference.
14
<PAGE>
================================================================================
No person has been authorized to give any information or to make any
representation in connection with this offering other than those contained in
this Prospectus and, if given or made, such other information or representations
must not be relied upon as having been authorized by the Companies or any other
person. Neither the delivery of this Prospectus nor any sale made hereunder
shall, under any circumstances, create any implication that there has been no
change in the affairs of the Companies since the date hereof or that the
information contained herein is correct as of any time subsequent to its date.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the registered Securities to which it
relates.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information.................................................... 3
Incorporation of Certain Documents by Reference.......................... 3
The Companies............................................................ 5
Use of Proceeds.......................................................... 6
Ratios of Earnings to Fixed Charges...................................... 6
Description of Capital Stock............................................. 6
Description of Paired Common Stock....................................... 6
Description of Preferred Stock........................................... 7
Restictions on Transfers of Capital Stock................................ 7
Certain Federal Income Tax Considerations................................ 8
Plan of Distribution..................................................... 12
Legal Matters............................................................ 12
Experts.................................................................. 12
</TABLE>
================================================================================
$950,000,000
Patriot American Hospitality, Inc.
Common Stock
Preferred Stock
$50,000,000
Wyndham International, Inc.
Common Stock
Preferred Stock
---------------------
PROSPECTUS
---------------------
__________, 1998
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.*
<TABLE>
<CAPTION>
<S> <C>
Registration fee.................................................. $237,200
NASD fee.......................................................... 30,500
Printing fees and expenses........................................ 100,000
Legal fees and expenses........................................... 100,000
Accounting fees and expenses...................................... 30,000
Blue Sky fees and expenses........................................ 25,000
Miscellaneous..................................................... 50,000
Total............................................................. $572,700
</TABLE>
* Fees and expenses are estimated with the exception of the registration fee.
Item 15. Indemnification of Directors and Officers.
Pursuant to Section 145 of the DGCL, each of the Corporation Charter and the
Operating Company Charter includes a provision which eliminates any personal
liability for a director to the Corporation or the Operating Company, as the
case may be, and to the stockholders, for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the Corporation or the Operating Company, as the
case may be, or to the stockholders, (ii) for acts or omissions not in good
faith or which involve intentional misconduct or a knowing violation of law,
(iii) in connection with certain unlawful dividend payments or stock redemptions
or repurchases or (iv) for any transaction from which such director derived an
improper personal benefit. In addition, the Corporation Charter and the
Operating Company Charter each provide that if the DGCL is amended to authorize
the further elimination or limitation of the personal liability of directors,
then the liability of a director of the Corporation or the Operating Company
shall be eliminated or limited to the fullest extent permitted by the DGCL, as
so amended.
Article VII of each of the Corporation Bylaws and the Operating Company
Bylaws provides for indemnification by the Corporation or the Operating Company,
as the case may be, of their respective officers, directors and the officers and
directors of their respective subsidiaries to the fullest extent permitted by
Section 145 of the DGCL, as amended from time to time and the Corporation and
the Operating Company may, by action of their respective Board of Directors,
indemnify all other persons the Corporation or the Operating Company may
indemnify under the DGCL.
II-1
<PAGE>
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
4.1(1) -- Agreement (the "Pairing Agreement"), dated February 15, 1983
and as amended February 18, 1988, between Bay Meadows
Operating Company and California Jockey Club (f/k/a Bay
Meadows Realty Enterprises, Inc.), as amended (incorporated by
reference to Exhibit 4.3 to California Jockey Club's and Bay
Meadows Operating Company's Registration Statement on Form S-2
and to Exhibit 4.2 to California Jockey Club's and Bay Meadows
Operating Company's Annual Report on Form 10-K for the year
ended December 31, 1987 (Nos. 001-09319 and 001-09320)).
4.1(2) -- Amendment No. 2 to the Pairing Agreement (incorporated by
reference to Exhibit 4.2 to Patriot American Hospitality,
Inc.'s and Wyndham International, Inc.'s Registration
Statement on Form S-4 (Nos. 333-39875 and 333-39875-01)).
4.1(3) -- Form of Amendment No. 3 to the Pairing Agreement (incorporated
by reference to Exhibit 4.3 to Patriot American Hospitality
Inc.'s and Wyndham International Inc.'s Registration Statement
on Form S-4 (Nos. 333-39875 and 333-39875-01)).
4.2 -- Form of Cooperation Agreement, dated December 18, 1997,
between Patriot American Hospitality, Inc. and Wyndham
International, Inc. (incorporated by reference to Exhibit 10.8
to Patriot American Hospitality, Inc.'s and Wyndham
International, Inc.'s Registration Statement on Form S-4 (Nos.
333-39875 and 333-39875-01)).
*5.1 -- Opinion of Goodwin, Procter & Hoar LLP as to legality of
securities being offered.
*8.1 -- Opinion of Goodwin, Procter & Hoar LLP as to Tax Matters.
*12.1 -- Statement re: Computation of Ratios of Earnings to Fixed
Charges.
23.1 -- Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 and Exhibit 8.1).
*23.2 -- Consent of Deloitte & Touche LLP, San Francisco, California.
*23.3 -- Consent of Deloitte & Touche LLP, Houston, Texas.
*23.4 -- Consent of Ernst & Young LLP, Dallas, Texas.
*23.5 -- Consent of Ernst & Young LLP, Seattle, Washington.
*23.6 -- Consent of Ernst & Young LLP, Phoenix, Arizona.
*23.7 -- Consent of Ernst & Young LLP, Miami, Florida.
*23.8 -- Consent of Ernst & Young LLP, Kansas City, Missouri.
*23.9 -- Consent of Ernst & Young LLP, San Juan, Puerto Rico.
*23.10 -- Consent of Coopers & Lybrand L.L.P., Fort Lauderdale, Florida.
*23.11 -- Consent of Coopers & Lybrand L.L.P., Pittsburgh, Pennsylvania.
*23.12 -- Consent of Coopers & Lybrand L.L.P., Dallas, Texas.
*23.13 -- Consent of Coopers & Lybrand L.L.P., Newport Beach,
California.
*23.14 -- Consent of Coopers & Lybrand L.L.P., Phoenix, Arizona.
*23.15 -- Consent of Coopers & Lybrand L.L.P., Tampa, Florida.
*23.16 -- Consent of Pannell Kerr Forster PC.
*23.17 -- Consent of Price Waterhouse LLP.
*23.18 -- Consent of Arthur Andersen LLP.
*23.19 -- Consent of Mayer Hoffman McCann L.C.
24.1 -- Powers of Attorney (included on Signature Pages to the
Registration Statement).
</TABLE>
- -------------------------------
*Filed herewith.
II-2
<PAGE>
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration
Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) herein do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with
or furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are incorporated
by reference in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer,
or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director, officer
or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication
of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, each of the
Registrants has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Dallas,
State of Texas, February 6, 1998.
PATRIOT AMERICAN HOSPITALITY, INC. WYNDHAM INTERNATIONAL, INC.
By:/s/ Paul A. Nussbaum By:/s/ James D. Carreker
-------------------------------------- ---------------------------------
Paul A. Nussbaum James D. Carreker
Chairman of the Board and Chairman of the Board and Chief
Chief Executive Officer Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated, each of whom also constitutes and
appoints Paul A. Nussbaum and John Bohlmann and each of them singly, his true
and lawful attorney-in-fact and agent, for him, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement and to
file the same and all exhibits thereto, and any other documents in connection
therewith with the Securities and Exchange Commission, granting unto each
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that each attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Paul A. Nussbaum Chairman of the Board of Directors and February 6, 1998
- ------------------------- Chief Executive Officer,
Paul A. Nussbaum Patriot American Hospitality, Inc.
(Principal Executive Officer)
/s/ William W. Evans III President, Chief Operating Officer and February 6, 1998
- ------------------------- Director, Patriot American
William W. Evans III Hospitality, Inc.
/s/ Anne L. Raymond Chief Financial Officer and Executive February 6, 1998
- ------------------------- Vice President, Patriot American
Anne L. Raymond Hospitality, Inc. (Principal Financial
Officer and Principal Accounting Officer)
/s/ John H. Daniels Director, Patriot American February 4, 1998
- ------------------------- Hospitality, Inc.
John H. Daniels
/s/ John C. Deterding Director, Patriot American February 3, 1998
- ------------------------- Hospitality, Inc.
John C. Deterding
/s/ Gregory R. Dillon Director, Patriot American February 3, 1998
- ------------------------- Hospitality, Inc.
Gregory R. Dillon
/s/ Arch K. Jacobson Director, Patriot American February 5, 1998
- ------------------------- Hospitality, Inc.
Arch K. Jacobson
/s/ James D. Carreker Director, Patriot American February 6, 1998
- ------------------------- Hospitality, Inc.
James D. Carreker
/s/ Phillip J. Ward Director, Patriot American February 4, 1998
- ------------------------- Hospitality, Inc.
Phillip J. Ward
/s/ Harlan R. Crow Director, Patriot American February 5, 1998
- ------------------------- Hospitality, Inc.
Harlan R. Crow
</TABLE>
II-4
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated, each of whom also constitutes and
appoints James D. Carreker and Carla Moreland and each of them singly, his true
and lawful attorney-in-fact and agent, for him, with full power of substitution
and resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement and to
file the same and all exhibits thereto, and any other documents in connection
therewith with the Securities and Exchange Commission, granting unto each
attorney-in-fact and agent full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that each attorney-in-fact and agent or his substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ James D. Carreker Chairman of the Board of Directors February 6, 1998
- ------------------------- and Chief Executive Officer,
James D. Carreker Wyndham International, Inc.
(Principal Executive Officer)
/s/ Paul A. Nussbaum Director, Wyndham International, Inc. February 6, 1998
- -------------------------
Paul A. Nussbaum
/s/ Karim Alibhai President, Chief Operating Officer and February 4, 1998
- ------------------------- Director, Wyndham International, Inc.
Karim Alibhai
/s/ Rex E. Stewart Chief Financial Officer and Treasurer, February 3, 1998
- ------------------------- Wyndham International, Inc.
Rex E. Stewart (Principal Financial Officer
and Principal Accounting Officer)
/s/ Arch K. Jacobson Director, Wyndham International, Inc. February 5, 1998
- -------------------------
Arch K. Jacobson
/s/ Leonard Boxer Director, Wyndham International, Inc. February 3, 1998
- -------------------------
Leonard Boxer
/s/ Russ Lyon, Jr. Director, Wyndham International, Inc. February 4, 1998
- -------------------------
Russ Lyon, Jr.
/s/ Burton C. Einspruch Director, Wyndham International, Inc. February 3, 1998
- -------------------------
Burton C. Einspruch
/s/ Sherwood Weiser Director, Wyndham International, Inc. February 4, 1998
- -------------------------
Sherwood Weiser
/s/ James C. Leslie Director, Wyndham International, Inc. February 3, 1998
- -------------------------
James C. Leslie
/s/ Susan T. Groenteman Director, Wyndham International, Inc. February 5, 1998
- -------------------------
Susan T. Groenteman
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------ -------
<S> <C>
4.1(1) -- Agreement (the "Pairing Agreement"), dated February 15, 1983
and as amended February 18, 1988, between Bay Meadows
Operating Company and California Jockey Club (f/k/a Bay
Meadows Realty Enterprises, Inc.), as amended (incorporated by
reference to Exhibit 4.3 to California Jockey Club's and Bay
Meadows Operating Company's Registration Statement on Form S-
2, and to Exhibit 4.2 to California Jockey Club's and Bay
Meadows Operating Company's Annual Report on Form 10-K for the
year ended December 31, 1987 (Nos. 001-09319 and 001-09320)).
4.1(2) -- Amendment No. 2 to the Pairing Agreement (incorporated by
reference to Exhibit 4.2 to Patriot American Hospitality,
Inc.'s and Wyndham International, Inc.'s Registration
Statement on Form S-4 (Nos. 333-39875 and 333-39875-01)).
4.1(3) -- Form of Amendment No. 3 to the Pairing Agreement (incorporated
by reference to Exhibit 4.3 to Patriot American Hospitality
Inc.'s and Wyndham International, Inc.'s Registration
Statement on Form S-4 (Nos. 333-39875 and 333-39875-01)).
4.2 -- Form of Cooperation Agreement, dated December 18, 1997,
between Patriot American Hospitality, Inc. and Wyndham
International, Inc. (incorporated by reference to Exhibit 10.8
to Patriot American Hospitality, Inc.'s and Wyndham
International, Inc.'s Registration Statement on Form S-4 (Nos.
333-39875 and 333-39875-01)).
*5.1 -- Opinion of Goodwin, Procter & Hoar LLP as to legality of
securities being offered.
*8.1 -- Opinion of Goodwin, Procter & Hoar LLP as to Tax Matters.
*12.1 -- Statement re: Computation of Ratios of Earnings to Fixed
Charges.
23.1 -- Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 and Exhibit 8.1).
*23.2 -- Consent of Deloitte & Touche LLP, San Francisco, California.
*23.3 -- Consent of Deloitte & Touche LLP, Houston, Texas.
*23.4 -- Consent of Ernst & Young LLP, Dallas, Texas.
*23.5 -- Consent of Ernst & Young LLP, Seattle, Washington.
*23.6 -- Consent of Ernst & Young LLP, Phoenix, Arizona.
*23.7 -- Consent of Ernst & Young LLP, Miami, Florida.
*23.8 -- Consent of Ernst & Young LLP, Kansas City, Missouri.
*23.9 -- Consent of Ernst & Young LLP, San Juan, Puerto Rico.
*23.10 -- Consent of Coopers & Lybrand L.L.P., Fort Lauderdale, Florida.
*23.11 -- Consent of Coopers & Lybrand L.L.P., Pittsburgh, Pennsylvania.
*23.12 -- Consent of Coopers & Lybrand L.L.P., Dallas, Texas.
*23.13 -- Consent of Coopers & Lybrand L.L.P., Newport Beach,
California.
*23.14 -- Consent of Coopers & Lybrand L.L.P., Phoenix, Arizona.
*23.15 -- Consent of Coopers & Lybrand L.L.P., Tampa, Florida.
*23.16 -- Consent of Pannell Kerr Forster PC.
*23.17 -- Consent of Price Waterhouse LLP.
*23.18 -- Consent of Arthur Andersen LLP.
*23.19 -- Consent of Mayer Hoffman McCann L.C.
24.1 -- Powers of Attorney (included on Signature Pages to the
Registration Statement).
</TABLE>
- -----------------------------
*Filed herewith.
II-6
<PAGE>
Exhibit 5.1
[LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP APPEARS HERE]
February 13, 1998
Patriot American Hospitality, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Re: Legality of Securities to be Registered
under Registration Statement on Form S-3
----------------------------------------
Ladies and Gentlemen:
This opinion is delivered in our capacity as special counsel to Patriot
American Hospitality, Inc., a Delaware corporation ("Patriot"), and Wyndham
International, Inc., a Delaware corporation ("Wyndham" and, together with
Patriot, the "Companies"), in connection with the Companies' registration
statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to an indeterminate amount of (i) shares of common stock, $.01 par value, of
Patriot and shares of common stock, $.01 par value, of Wyndham which are
"paired" and traded as units consisting of one share of common stock of Patriot
and one share of common stock of Wyndham and (ii) shares of preferred stock,
$.01 par value, of Patriot and shares of preferred stock, $.01 par value, of
Wyndham which may be, but are not required to be, "paired," authorized for
issuance under the Amended and Restated Certificate of Incorporation, as amended
to date, of each of the Companies with an aggregate public offering price of up
to $1,000,000,000 (such securities being referred to collectively as the
"Securities"). The Registration Statement provides that the Securities may be
offered separately or together, in separate series, in amounts, at prices and on
terms to be set forth in one or more supplements to the prospectus contained in
the Registration Statement (each a "Prospectus Supplement").
We have examined the Amended and Restated Certificate of Incorporation of
each of the Companies, as amended to the date hereof and on file with the
Secretary of State of the State of Delaware, the Amended and Restated Bylaws of
each of the Companies, as amended to the date hereof, such records of corporate
proceedings of the Companies as we deem appropriate for the purposes of this
opinion, the Registration Statement and the exhibits thereto.
Based upon the foregoing, we are of the opinion that, when specifically
authorized for issuance by the Board of Directors of each of the Companies or an
authorized committee thereof (the "Authorizing Resolution") and when issued as
described in the Registration Statement and a Prospectus Supplement that is
consistent with the Authorizing Resolution, and upon receipt by the Companies of
the consideration provided for in the Authorizing Resolution, the Securities
will be duly authorized, legally issued, fully paid and nonassessable.
We hereby consent to being named as special counsel to the Companies in the
Registration Statement, to the references therein to our firm under the caption
"Legal Matters" and to the inclusion of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 8.1
[LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP APPEARS HERE]
February 13, 1998
Patriot American Hospitality, Inc.
Wyndham International, Inc.
1950 Stemmons Freeway
Suite 6001
Dallas, TX 75207
Re: Certain Federal Income Tax Matters
----------------------------------
Ladies and Gentlemen:
This opinion is delivered to you in our capacity as counsel to Patriot
American Hospitality, Inc., a Delaware corporation (the "Company"), and Wyndham
International Inc., a Delaware corporation (the "OpCo," and, together with the
Company, the "Companies"), in connection with the Companies' registration
statement on Form S-3 (the "Registration Statement") filed with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, relating
to an indeterminate amount of (i) shares of common stock, $.01 par value, of the
Company and shares of common stock, $.01 par value, of OpCo which are "paired"
and traded as units consisting of one share of common stock of the Company and
one share of common stock of OpCo and (ii) shares of preferred stock, $.01 par
value, of the Company and shares of preferred stock, $.01 par value, of the
Company which may be, but are not required to be, "paired," authorized for
issuance under the Amended and Restated Certificate of Incorporation, as amended
to date, of each of the Companies, with an aggregate public offering price of up
to $1,000,000,000.
On July 1, 1997, the Company merged (the "Cal Jockey Merger") with Patriot
American Hospitality, Inc., a Virginia corporation ("Old Patriot"), pursuant to
an Agreement and Plan of Merger dated as of February 24, 1997, as amended and
restated as of May 28,1997 (the "Cal Jockey Merger Agreement") among Old
Patriot, Patriot American Hospitality Partnership, L.P., a Virginia limited
partnership, the Company and OpCo. Pursuant to the Cal Jockey Merger Agreement,
the Company was the surviving company in the Cal Jockey Merger and changed its
name to Patriot American Hospitality, Inc.
This opinion letter relates to (i) the qualification of the Company as a
real estate investment trust ("REIT") under the Internal Revenue Code of 1986,
as amended (the "Code") and (ii) the accuracy of certain statements in the
Registration Statement.
In rendering the following opinions, we have reviewed the Registration
Statement and the descriptions set forth therein of the Company and its current
and proposed investments and activities. We also have examined (i) the Amended
and Restated Certificate of Incorporation of the Company, as of the beginning of
the first taxable year for which it elected to be a REIT and as amended to date,
and the Amended and Restated Bylaws of the Company, (ii) the Pairing Agreement
dated as of February 17, 1983, as amended, by and between the Company and OpCo,
(iii) the Merger Agreement and (iv) such other records, certificates and
documents as we have deemed necessary or appropriate for purposes of rendering
the opinions set forth herein. The foregoing documents, including the
Registration Statement, are referred to herein as the "Documents."
In rendering our opinions, we have relied upon certain representations of
the Company set forth in a representation letter delivered to us in connection
with this opinion letter regarding the manner in which Company has been owned
and operated and will be owned and operated, and the manner in which Old Patriot
was owned and operated for periods ending on and including the effective time of
the Cal Jockey Merger. We also have relied on the statements contained in the
Documents regarding the operation and ownership of the Company, Old Patriot and
their affiliates. We have neither independently investigated nor verified such
representations or statements, and we assume that such representations and
statements are true, correct and complete and that all representations and
statements made "to the best of the knowledge and belief" of any person(s) or
party(ies) or with similar qualification are and will be true, correct and
complete as if made without such qualification.
In rendering the opinions set forth herein, we have assumed (i) the
genuineness of all signatures on documents we have examined, (ii) the
authenticity of all documents submitted to us as originals, (iii) the conformity
to the original documents of all documents submitted to us as copies, (iv) the
conformity of final documents to all documents submitted to us as drafts, (v)
the authority and capacity of the individual or individuals who executed any
such documents on behalf of any person (vi) the accuracy and completeness of all
records made
<PAGE>
[LETTERHEAD OF GOODWIN, PROCTER & HOAR LLP APPEARS HERE]
available to us, (vii) the factual accuracy of all representations, warranties
and other statements made by all parties, and (viii) the continued accuracy of
all documents, certificates, warranties and covenants on which we have relied in
rendering the opinions set forth below and that were given or dated earlier than
the date of this letter, insofar as relevant to the opinions set forth herein,
from such earlier date through and including the date of this letter.
Based upon and subject to the foregoing, we are of the opinion that:
(i) The Company has been organized and operated in conformity with the
requirements for qualification and taxation as a REIT under the Code
beginning with the Company's taxable year ending December 31, 1983
and for subsequent taxable years through the date hereof, and the
Company's proposed form of organization and method of operation will
enable it to continue to meet the requirements for qualification and
taxation as a REIT under the Code (including for periods following the
Merger).
(ii) The discussion set forth under the caption "Certain Federal Income Tax
Considerations" in the Registration Statement, to the extent that such
discussion constitutes matters of law, summaries of legal matters or
legal conclusions, is accurate in all material respects.
* * * *
We express no opinion herein other than the opinions expressly set forth
above. You should recognize that our opinions are not binding on a court or the
Internal Revenue Service and that a court or the Internal Revenue Service may
disagree with the opinions contained herein. The discussion and conclusions set
forth above are based upon current provisions of the Code and the Income Tax
Regulations and Procedure and Administration Regulations promulgated thereunder
and existing administrative and judicial interpretations thereof, all of which
are subject to change. Changes in applicable law could adversely affect our
opinions.
We consent to being named as counsel to the Company in the Registration
Statement, to the references in the Registration Statement to our firm,
including the references under the captions "Certain Federal Income Tax
Considerations" and "Legal Matters," and to the inclusion of a copy of this
opinion letter as an exhibit to the Registration Statement.
Very truly yours,
/s/ GOODWIN, PROCTER & HOAR LLP
<PAGE>
EXHIBIT 12.1
HISTORICAL RATIO OF EARNINGS TO FIXED CHARGES
PATRIOT AMERICAN HOSPITALITY, INC. AND
WYNDHAM INTERNATIONAL, INC.
(in thousands)
<TABLE>
<CAPTION>
9 Months Year Inception
Ended Ended Through
09/30/97 12/31/96 12/31/95
-------- -------- --------
<S> <C> <C> <C>
Earnings:
Income before minority interest $ 1,386 $ 44,813 $ 7,064
Add back fixed charges 32,568 7,471 89
--------- --------- ---------
$ 33,954 $ 52,284 $ 7,153
========= ========= =========
Fixed Charges:
Interest expense, including
amortization of DLC $ 31,261 $ 7,380 $ 89
Capitalized interest 1,307 91 --
--------- --------- ---------
$ 32,568 $ 7,471 $ 89
========= ========= =========
Ratio: 1.04 7.00 80.37
========= ========= =========
</TABLE>
<PAGE>
[LETTERHEAD OF DELOITTE & TOUCHE LLP]
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Wyndham International, Inc. and Patriot American Hospitality, Inc. on Form S-3
of our report dated March 28, 1997 (which expresses an unqualified opinion and
includes an explanatory paragraph relating to a proposed merger and certain
disagreement between the Companies), appearing in the Annual Report on Form 10-K
of Bay Meadows Operating Company and of California Jockey Club for the year
ended December 31, 1996 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
San Francisco, California
February 9, 1998
<PAGE>
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement on
Form S-3 of Patriot American Hospitality, Inc. and Wyndham International, Inc.,
(formerly known as Patriot American Hospitality Operating Company) of our report
dated September 30, 1997 (relating to the financial statements of Partnerships
of Acquired Hotels as of December 31,1996 and 1995 and for each of the two years
in the period ended December 31,1996) appearing in the report Form 8-K/A No. 1
dated September 30, 1997 of Patriot American Hospitality, Inc. and Patriot
American Hospitality Operating Company and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
/s/ DELOITTE & TOUCHE LLP
Houston, Texas
February 9, 1998
<PAGE>
EXHIBIT 23.4
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the Joint
Registration Statement on Form S-3 and the related Prospectus of Patriot
American Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot
American Hospitality Operating Company) for the registration of $1,000,000,000
of common stock and preferred stock of the companies and to the incorporation by
reference therein of our reports (a) dated January 31, 1997 (except for Note 14,
as to which the date is March 18, 1997) with respect to the Consolidated
Financial Statements and financial statement schedules of Patriot American
Hospitality, Inc. included in its 1996 Annual Report on Form 10-K and included
in the Joint Current Report on Form 8-K of Patriot American Hospitality, Inc.
and Patriot American Hospitality Operating Company dated July 1, 1997; (b) dated
February 16, 1996, with respect to the Combined Financial Statements of the
Initial Hotels (which is based in part on the reports of Coopers & Lybrand
L.L.P., independent accountants, as set forth in their reports on Certain of the
Initial Hotels and Troy Hotel Investors) included in Patriot American
Hospitality, Inc.'s 1996 Annual Report on Form 10-K; (c) dated March 5, 1996,
with respect to the Financial Statements of Buckhead Hospitality Joint Venture
included in the Current Report on Form 8-K of Patriot American Hospitality,
Inc., dated April 2, 1996, as amended; (d) dated March 1, 1996 (except for Note
7, as to which the date is April 2, 1996) with respect to the Combined Financial
Statements of Gateway Hotel Limited Partnership and Wenatchee Hotel Limited
Partnership included in the Current Report on Form 8-K of Patriot American
Hospitality, Inc., dated April 2, 1996, as amended; (e) dated February 28, 1996
(except for Note 5, as to which the date is April 2, 1996) with respect to the
Statement of Direct Revenue and Direct Operating Expenses of Plaza Park Suites
Hotel included in the Current Report on Form 8-K of Patriot American
Hospitality, Inc., dated April 2, 1996, as amended; (f) dated February 26, 1996
(except for Note 5, as to which the date is April 2, 1996) with respect to the
Statement of Direct Revenue and Direct Operating Expenses of Rooseevelt Hotel
included in the Current Report on Form 8-K of Patriot American Hospitality,
Inc., dated April 2, 1996, as amended; (g) dated April 10, 1996 with respect to
the Statement of Direct Revenue and Direct Operating Expenses of Marriott
WindWatch Hotel for the year ended December 29, 1995 included in the Current
Report on Form 8-K of Patriot American Hospitality, Inc., dated December 5,
1996; (h) dated August 30, 1996 with respect to the Financial Statements of
Concord O'Hare Limited Partnership for the year ended December 29, 1995 included
in the Current Report on Form 8-K of Patriot American Hospitality, Inc., dated
December 5, 1996; (i) dated September 10, 1996 with respect to the Statement of
Direct Revenue and Direct Operating Expenses of the Mayfair Suites Hotel for the
year ended December 31, 1995 included in the Current Report on Form 8-K of
Patriot American Hospitality, Inc., dated December 5, 1996; and (j) dated
January 23, 1997 (except for Note 8, as to which the date is September 30, 1997)
with respect to the Consolidated Financial Statements of GAH-II, L.P. for the
years ended December 31, 1996 and 1995, included in the Joint Current Report on
Form 8-K of Patriot American Hospitality, Inc. and Patriot American Hospitality
Operating Company dated September 30, 1997, as amended, all filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
February 9, 1998
<PAGE>
EXHIBIT 23.5
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the Joint
Registration Statement on Form S-3 and the related Prospectus of Patriot
American Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot
American Hospitality Operating Company) for the registration of $1,000,000,000
of common stock and preferred stock of the companies and to the incorporation
by reference therein of our report dated March 5, 1997 with respect to the
Financial Statements of NorthCoast Hotels, L.L.C. included in Patriot American
Hospitality, Inc.'s 1996 Annual Report on Form 10-K filed with the Securities
and Exchange Commission.
/s/ ERNST & YOUNG LLP
Seattle, Washington
February 9, 1998
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Joint Registration Statement on Form S-3 and the related Prospectus of Patriot
American Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot
American Hospitality Operating Company) for the registration of $1,000,000,000
of common stock and preferred stock of the companies and to the incorporation by
reference therein of our reports (a) dated March 14, 1997 with respect to the
Consolidated Financial Statements of Resorts Limited Partnership included in the
Current Report on Form 8-K of Patriot American Hospitality, Inc., dated January
16, 1997, as amended; (b) dated February 13, 1997, with respect to the Financial
Statements of CV Ranch Limited Partnership included in the Current Report on
Form 8-K of Patriot American Hospitality, Inc., dated January 16, 1997, as
amended; and (c) dated February 12, 1997 with respect to the Financial
Statements of Telluride Resort and Spa Limited Partnership included in the
Current Report on Form 8-K of Patriot American Hospitality, Inc., dated January
16, 1997, as amended, all filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Phoenix, Arizona
February 9, 1998
<PAGE>
EXHIBIT 23.7
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the Joint
Registration Statement on Form S-3 and the related Prospectus of Patriot
American Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot
American Hospitality Operating Company) for the registration of $1,000,000,000
of common stock and preferred stock of the companies and to the incorporation by
reference therein of our reports (a) dated March 13, 1997 (except for the third
paragraph of Note 7, as to which the date is April 2, 1997) with respect to the
Financial Statements of G.B.H. Joint Venture (d/b/a Grand Bay Hotel) for the
years ended December 31, 1995 and 1996; (b) dated September 23, 1997 with
respect to the Financial Statements of River House Associates (d/b/a Sheraton
Gateway Hotel) for the years ended December 31, 1995 and 1996; and (c) dated
September 19,1997 with respect to the Financial Statements of W-L Tampa, Ltd.
(the Sheraton Grand Hotel) for the years ended December 31, 1995 and 1996; all
of which are included in the Joint Current Report on Form 8-K/A No.1 of Patriot
American Hospitality, Inc. and Patriot American Hospitality Operating Company
dated September 30, 1997, as amended, and all filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
Miami, Florida
February 9, 1998
<PAGE>
EXHIBIT 23.8
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the Joint
Registration Statement on Form S-3 and the related Prospectus of Patriot
American Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot
American Hospitality Operating Company) for the registration of $1,000,000,000
of common stock and preferred stock of the companies and to the incorporation by
reference therein of our reports (a) dated April 8, 1997 (except for Note 11, as
to which the date is July 31, 1997) with respect to the Consolidated Financial
Statements of ClubHouse Hotels, Inc. as of December 31, 1996 and 1995 and for
each of the three years in the period ended December 31, 1996; (b) dated April
25, 1997 (except for Note 8, as to which the date is July 31, 1997) with respect
to the Combined Financial Statements of ClubHouse Acquisition Hotels as of
December 31, 1996 and 1995 and for the years then ended; and (c) dated September
9, 1997 with respect to the Financial Statements of Valdosta C.I. Associates,
L.P. as of December 31, 1994 and for the year then ended; all of which are
included in the Current Report on Form 8-K/A of Wyndham Hotel Corporation dated
September 18, 1997, all filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Kansas City, Missouri
February 9, 1998
<PAGE>
EXHIBIT 23.9
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Joint Registration Statement on Form S-3 and the related Prospectus of Patriot
American Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot
American Hospitality Operating Company) for the registration of $1,000,000,000
of common stock and preferred stock of the companies and to the incorporation by
reference therein of our reports (a) dated August 7, 1997 (except for Note 18,
as to which the date is September 17, 1997) with respect to the Consolidated
Financial Statements of WHG Resorts & Casinos Inc. and related financial
statement schedule; (b) dated August 7, 1997 with respect to the financial
statements of Posadas de San Juan Associates and related financial statement
schedule; (c) dated August 11, 1997 with respect to the financial statements of
WKA El Con Associates; and (d) dated May 2, 1997 with respect to the financial
statements of El Conquistador Partnership L.P.; all of which are included in the
Joint Current Report on Form 8-K of Patriot American Hospitality, Inc. and
Patriot American Hospitality Operating Company, dated December 10, 1997, all
filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
San Juan, Puerto Rico
February 11, 1998
<PAGE>
EXHIBIT 23.10
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) of Patriot
American Hospitality, Inc. and Wyndham International, Inc. of our report dated
January 15, 1996, on our audit of the financial statements of Certain of the
Initial Hotels.
/s/ Coopers & Lybrand, L.L.P.
Fort Lauderdale, Florida
February 9, 1998
<PAGE>
EXHIBIT 23.11
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) of Patriot
American Hospitality, Inc. and Wyndham International, Inc. of our reports (i)
dated February 12, 1997, except for Note 21, Note 22 and the last paragraph of
Note 2, as to which the date is December 1, 1997, of our audit of the
consolidated financial statements of Interstate Hotels Company; (ii) dated
January 17, 1996, on our audit of the financial statements of Troy Hotel
Inventors and (iii) dated February 7, 1995, on our audit of the financial
statements of Troy Park Associates.
/s/ Coopers & Lybrand, L.L.P.
Pittsburgh, Pennsylvania
February 9, 1998
<PAGE>
EXHIBIT 23.12
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) of Patriot
American Hospitality, Inc. and Wyndham International, Inc. of our reports (i)
dated October 15, 1996, on our audit of the statement of Direct Revenue and
Direct Operating Expenses of the Holiday Inn Miami Airport; (ii) dated February
19, 1997, on our audits of the consolidated financial statements of Wyndham
Hotel Corporation as of December 31, 1996 and 1995, and for the years ended
December 31, 1996, 1995 and 1994, (iii) dated May 12, 1997 on our audit of the
Combined Financial Statements of the Minneapolis Hotels as of and for the year
ended December 31, 1996; (iv) dated June 27, 1997 on our audit of the Combined
Statement of Direct Revenue and Direct Operating Expenses of the Met Life Hotels
for the year ended December 31, 1996; (v) dated September 8, 1997 on our audit
of the Combined Financial Statements of the Snavely Hotels as of and for the
year ended December 31, 1996; (vi) dated December 12, 1997 on our audit of
financial statements of Sheraton City Centre as of and for the year ended
December 31, 1996; and (vii) dated December 12, 1997 on our audit of the
Statement of Direct Revenue and Direct Operating Expenses of Wyndham Emerald
Plaza for the year ended December 31, 1996.
/s/ Coopers & Lybrand, L.L.P.
Dallas, Texas
February 9, 1998
<PAGE>
EXHIBIT 23.13
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) of Patriot
American Hospitality, Inc. and Wyndham International, Inc. of our report dated
March 8, 1996, related to the financial statements of Newporter Beach Hotel
Investments L.L.C. as of December 31, 1995, and for the period from March 10,
1995 through December 31, 1995.
/s/ Coopers & Lybrand, L.L.P.
Newport Beach, California
February 9, 1998
<PAGE>
EXHIBIT 23.14
CONSENT OF INDEPENDENT ACCOUNTANT
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) of Patriot
American Hospitality, Inc, and Wyndham International, Inc. of our report (i)
dated March 7, 1997 except for note 12 as to which the date is October 7, 1997
on our audit of the Financial Statements of SCP (Buttes), Inc., as of and for
the year ended December 31, 1996.
/s/ Coopers & Lybrand, L.L.P.
Phoenix, Arizona
February 9, 1998
<PAGE>
Exhibit 23.15
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" and to the
incorporation by reference in the Registration Statement (Form S-3) of Patriot
American Hospitality, Inc. and Wyndham International, Inc. of our report dated
January 17, 1997, except for Note 7, as to which the date is November 25, 1997,
on our audit of the financial statements of Royal Palace Hotel Associates.
/s/ Coopers & Lybrand L.L.P.
Tampa, Florida
February 9, 1998
<PAGE>
EXHIBIT 23.16
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" and the
incorporation by reference in the Registration Statement on Form S-3 and
Prospectus of Patriot American Hospitality, Inc. and Wyndham International, Inc.
of our report dated March 1, 1996 on the financial statements of Historic Hotel
Partners of Birmingham, Limited Partnership, our reports dated October 8, 1997
and February 28, 1997 on the financial statements of Historic Hotel Partners of
Chicago Limited Partnership, and our reports dated October 8, 1997 and February
21, 1997 on the financial statements of Historic Hotel Partners of Nashville
Limited Partnership.
/s/ Pannell Kerr Forster PC
Alexandria, Virginia
February 9, 1998
<PAGE>
EXHIBIT 23.17
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of Patriot American
Hospitality, Inc. and Wyndham International, Inc. (formerly Patriot American
Hospitality Operating Company) of our reports (a) dated October 3, 1997 relating
to the financial statements of CHC International Inc. Hospitality Division as of
and for the years ended November 30, 1995 and 1996 which appears in the Current
Report on Form 8-K of Patriot American Hospitality, Inc. and Wyndham
International, Inc. dated February 9, 1998; and (b) dated February 13, 1997,
except as to Note 4, which is as of March 18, 1997, relating to the financial
statements of CHC Lease Partners for the year ended December 31, 1996 and the
period inception (October 2, 1995) through December 31, 1995 which appears in
the Current Report on Form 8-K of Patriot American Hospitality, Inc. and Patriot
American Hospitality Operating Company dated July 1, 1997. We also consent to
the reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
Miami, Florida
February 9, 1998
<PAGE>
EXHIBIT 23.18
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the use of our report
dated September 17, 1997, on the combined financial statements of the Crow
Family Hotel Partnerships (and to all references to our Firm), incorporated by
reference into the Joint Registration Statement on Form S-3 of Patriot American
Hospitality, Inc. and Wyndham International, Inc.
/s/ Arthur Andersen LLP
Dallas, Texas
February 9, 1998
<PAGE>
EXHIBIT 23.19
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
-----------------------------------------
We hereby consent to the reference to our firm under the caption "Experts" and
to the use of our reports dated February 8, 1996, except for Note (4) for which
the date is February 15, 1996 (Albuquerque C.I. Associates, LP.); February 16,
1996 (C.I. Nashville, Inc.); February 8, 1996 (Wichita C.I. Associates III,
L.P.); and February 19, 1996 (Topeka C.I. Associates, L.P.), incorporated by
reference in this Form S-3 Registration Statement of Patriot American
Hospitality, Inc. and Wyndham International, Inc.
Kansas City, Missouri
February 11, 1998 /s/ Mayer Hoffman McCann L.C.
