<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
--------------------
Date of Report (Date of earliest event reported): January 29, 1999
<TABLE>
<S> <C>
PATRIOT AMERICAN HOSPITALITY, WYNDHAM INTERNATIONAL, INC.
INC.
(Exact Name of Registrant as (Exact Name of Registrant as
Specified in its Charter) 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 Number) (I.R.S. Employer Identification Number)
1950 STEMMONS FREEWAY 1950 STEMMONS FREEWAY
SUITE 6001 SUITE 6001
DALLAS, TEXAS 75207 DALLAS, TEXAS 75207
(214) 863-1000 (214) 863-1000
(Address, Including Zip Code, and (Address, Including Zip Code, and
Telephone Number, Including Area Code, of Telephone 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 Chairman of the Board and
Chief Executive Officer Chief Executive Officer
</TABLE>
<PAGE>
<TABLE>
<S> <C>
Patriot American Hospitality, Inc. Wyndham International, Inc.
1950 Stemmons Freeway 1950 Stemmons Freeway
Suite 6001 Suite 6001
Dallas, Texas 75207 Dallas, Texas 75207
(214) 863-1000 (214) 863-1000
(Name, Address, Including Zip Code, (Name, Address, Including Zip Code,
and Telephone Number, Including and Telephone Number, Including
Area Code, of Agent of Service) Area Code, of Agent of Service)
--------------------
</TABLE>
copies to:
GILBERT G. MENNA, P.C.
KATHRYN I. MURTAGH, ESQ.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
--------------------
2
<PAGE>
ITEM 5. OTHER EVENTS.
CREDIT FACILITY AMENDMENT
Patriot American Hospitality, Inc. ("Patriot") and Wyndham
International, Inc. (the "Companies") have received consents from Patriot's
bank group to amend the terms of Patriot's $2.7 billion bank credit facility.
Under the amended terms, the $350 million payment due January 31, 1999
has been extended to March 31, 1999. The maturity of this $350 million and
the $400 million payment due March 31, 1999 have been extended until June 30,
1999, provided that, on or before February 15, 1999, (i) the Companies have
entered into a definitive agreement consistent with the December 15, 1998
letter of intent with an investor group proposing to make an equity
investment in the Companies of up to $1 billion, and (ii) certain
indebtedness of the Companies and the Companies' obligations under their
forward equity contracts have been extended through June 30, 1999. In the
event the Companies do not sign such definitive agreement, Patriot has agreed
to provide additional security to the lenders and the maturity of the above
payments will be extended to March 31, 2000, subject to amended covenants and
terms.
FORWARD EQUITY TRANSACTIONS
The Companies have entered into agreements with PaineWebber Financial
Products, Inc., NationsBanc Mortgage Capital Corporation and UBS AG, London
Branch, the counterparties to the Companies' forward equity transactions,
which amend the terms of those transactions. PaineWebber, Nations and UBS
have agreed, subject to certain conditions, not to require settlement under
their respective forward contracts or to sell the Companies' paired shares
through February 15, 1999.
In addition, the PaineWebber and Nations standstill obligations will be
further extended through June 30, 1999, provided that the Companies have
entered into a definitive investment agreement which provides, among other
things, for a cash settlement of those counterparties' forward equity
transactions.
Each counterparty's standstill obligation will terminate (i) upon the
occurrence of certain defaults under the respective forward agreements or
under Patriot's credit facility, (ii) if Patriot's stock price declines to
$4.50 or below or (iii) if either of the other two counterparties sells
shares of Patriot's paired common stock.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS. The following exhibits are filed as a part of this report:
99.1 Amendment and Restatement of Credit Agreement, dated as of January
31, 1999, by and among Patriot American Hospitality, Inc., Patriot
American Hospitality Operating Partnership, L.P. and the Lenders
named therein.
99.2 Letter Agreement, dated February 1, 1999, by and among Patriot American
Hospitality, Inc., Wyndham International, Inc. and PaineWebber
Financial Products, Inc.
99.3 Second Amendment to Agreements, dated November 23, 1998, by and among
Patriot American Hospitality, Inc., Wyndham International, Inc. and
NationsBanc Mortgage Capital Corporation.
99.4 Third Amendment to Agreements, dated December 10, 1998, by and among
Patriot American Hospitality, Inc., Wyndham International, Inc. and
NationsBanc Mortgage Capital Corporation.
99.5 Fourth Amendment to Agreements, dated January 4, 1999, by and among
Patriot American Hospitality, Inc., Wyndham International, Inc. and
NationsBanc Mortgage Capital Corporation.
99.6 Fifth Amendment to Agreements, dated February 1, 1999, by and among
Patriot American Hospitality, Inc., Wyndham International, Inc. and
NationsBanc Mortgage Capital Corporation.
99.7 Letter Agreement, dated December 14, 1998, by and among Patriot
American Hospitality, Inc., Wyndham International, Inc. and UBS AG,
London Branch.
99.8 Letter Agreement, dated January 29, 1999, by and among Patriot American
Hospitality, Inc., Wyndham International, Inc. and UBS AG, London
Branch.
3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be filed on its behalf by the
undersigned thereunto duly authorized.
Dated: February 3, 1999 PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ William W. Evans III
----------------------------
Name: William W. Evans III
Title: President and Chief
Operating Officer
WYNDHAM INTERNATIONAL, INC.
By: /s/ William W. Evans III
----------------------------
Name: William W. Evans III
Title: Executive Vice President
4
<PAGE>
EXHIBIT INDEX
NUMBER ITEM
- ------ ----
99.1 Amendment and Restatement of Credit Agreement, dated as of
January 31, 1999, by and among Patriot American Hospitality,
Inc., Patriot American Hospitality Operating Partnership, L.P.
and the Lenders named therein.
99.2 Letter Agreement, dated February 1, 1999, by and among Patriot
American Hospitality, Inc., Wyndham International, Inc. and
PaineWebber Financial Products, Inc.
99.3 Second Amendment to Agreements, dated November 23, 1998, by and
among Patriot American Hospitality, Inc., Wyndham International,
Inc. and NationsBanc Mortgage Capital Corporation.
99.4 Third Amendment to Agreements, dated December 10, 1998, by and
among Patriot American Hospitality, Inc., Wyndham International,
Inc. and NationsBanc Mortgage Capital Corporation.
99.5 Fourth Amendment to Agreements, dated January 4, 1999, by and
among Patriot American Hospitality, Inc., Wyndham International,
Inc. and NationsBanc Mortgage Capital Corporation.
99.6 Fifth Amendment to Agreements, dated February 1, 1999, by and
among Patriot American Hospitality, Inc., Wyndham International,
Inc. and NationsBanc Mortgage Capital Corporation.
99.7 Letter Agreement, dated December 14, 1998, by and among Patriot
American Hospitality, Inc., Wyndham International, Inc. and UBS
AG, London Branch.
99.8 Letter Agreement, dated January 29, 1999, by and among Patriot
American Hospitality, Inc., Wyndham International, Inc. and UBS
AG, London Branch.
<PAGE>
Exhibit 99.1
AMENDMENT AND RESTATEMENT
AMENDMENT AND RESTATEMENT (this "Amendment and Restatement"),
dated as of December 31, 1998, among PATRIOT AMERICAN HOSPITALITY, INC., a
Delaware corporation ("Patriot REIT"), PATRIOT AMERICAN HOSPITALITY PARTNERSHIP,
L.P., a Virginia limited partnership ("Patriot OP", and together with Patriot
REIT, the "Borrowers", and each individually, a "Borrower"), the lenders party
to the Credit Agreement referred to below (the "Lenders"), PAINE WEBBER REAL
ESTATE SECURITIES, INC. ("Paine Webber") as Arranger (the "Arranger") and CHASE
SECURITIES INC. ("CSI"), as Book Manager and as Lead Arranger (the "Lead
Arranger" and together with Paine Webber the "Arrangers"), CITIBANK, N.A.
("Citibank"), BANKERS TRUST COMPANY ("BTCo"), and CREDIT LYONNAIS NEW YORK
BRANCH ("Credit Lyonnais") as Documentation Agents, (each a "Documentation
Agent", and together the "Documentation Agents"), PAINE WEBBER, as Syndication
Agent (the "Syndication Agent") and CHASE MANHATTAN BANK ("Chase"), as
Administrative Agent (the "Administrative Agent"). All capitalized terms used
herein and not otherwise defined shall have the respective meanings provided
such terms in the Credit Agreement referred to below.
W I T N E S S E T H :
WHEREAS, the Borrowers, the Lenders, the Arrangers, the
Documentation Agents, the Syndication Agent and the Administrative Agent are
parties to the Amended and Restated Credit Agreement, dated as of July 18, 1997,
amended and restated as of December 16, 1997 and further amended and restated as
of June 2, 1998 (as amended through the date hereof, the "Credit Agreement");
and
WHEREAS, the Borrowers have requested that the undersigned
Lenders provide the amendments, waivers, consents and agreements provided for
herein and such Lenders have agreed to provide such amendments, waivers,
consents and agreements on the terms and conditions set forth herein;
NOW, THEREFORE, it is agreed:
1. The Tranche I Term Loan Maturity Date and the Tranche II
Term Loan Maturity Date shall be extended, in the case of the Tranche I Term
Loan Maturity Date, to March 31, 1999 (the "Initial Maturity Extension") and, in
the case of the Tranche I Term Loan Maturity Date and the Tranche II Term Loan
Maturity Date, June 30, 1999 (the "Subsequent Maturity Extension"), as
applicable, by amending the definitions of "Tranche I Term Loan Maturity Date"
and "Tranche II Term Loan Maturity Date" contained in Section 11 of the Credit
Agreement to read in their entirety as follows:
"Tranche I Term Loan Maturity Date" shall mean (x)
March 31, 1999 and (y) upon the occurrence of the events described in
the following proviso (the "Subsequent Maturity Extension Conditions"),
June 30, 1999; PROVIDED that, the Tranche I Term Loan
<PAGE>
2 Page
Maturity Date shall automatically be extended if on or prior to
February 15, 1999, (i) Borrowers shall have entered into definitive
equity agreements, on terms and conditions which (in the reasonable
judgment of the Administrative Agent) shall be consistent with the
letter dated December 15, 1998 between the Borrowers and certain
proposed investors (the "Letter of Intent") and on terms and
conditions which are customary for transactions of this type (the
"Definitive Equity Agreements") pursuant to which new equity capital
shall be provided to the Borrowers on terms consistent with the Letter
of Intent and (ii) the maturities and amortization requirements of all
other Indebtedness of the Borrowers, the Guarantors and their
Subsidiaries (other than (x) the Indebtedness described as item 1 on
Schedule I hereto and (y) the amortizations described as item 26 on
Schedule I hereto) and all obligations to pay cash or deliver assets,
debt or other consideration (other than common stock of Patriot and
Wyndham) under existing Permitted Equity Swaps, shall have been
extended to dates which are on or after June 30, 1999.
"Tranche II Term Loan Maturity Date" shall mean (x)
March 31, 1999 and (y) upon the satisfaction of the Subsequent Maturity
Extension Conditions, June 30, 1999.
<PAGE>
3 Page
2. The definition of "Applicable Margin" contained in Section
11 of the Credit Agreement is hereby modified by deleting the pricing grid
contained therein and inserting the following pricing grid in lieu thereof:
<TABLE>
<CAPTION>
" REVOLVING LOANS, SWINGLINE LOANS AND
TRANCHE I, II, III TERM LOANS
------------------------------------
TRANCHE B LOANS
---------------
Base Rate Eurodollar Base Rate Eurodollar
LOANS RATE LOANS COMMITMENT FEE LOANS RATE LOANS
--------- ---------- -------------- --------- ----------
<S> <C> <C> <C> <C> <C>
Level I 0% 1.50% 0.125% 1.50% 3.00%
Status
Level II .125% 1.625% 0.15% 1.50% 3.00%
Status
Level III .25% 1.75% 0.15% 1.50% 3.00%
Status
Level IV .375% 1.875% 0.20% 1.50% 3.00%
Status
Level V .50% 2.00% 0.20% 1.50% 3.00%
Status
Level VI 0.70% 2.20% 0.25% 1.50% 3.00%
Status
Level VII 0.85% 2.35% 0.30% 1.50% 3.00%
Status
Level VIII 1.00% 2.50% 0.35% 1.50% 3.00%
Status
Level IX 1.25% 2.75% 0.40% 1.50% 3.00%
Status
</TABLE>
<PAGE>
4 Page
3. The following new definitions are hereby inserted into
Section 11 of the Credit Agreement in appropriate alphabetical order:
"Amendment and Restatement" shall mean the Amendment
and Restatement to this Agreement, dated as of December 31, 1998.
"Amendment and Restatement Effective Date" shall mean
the Amendment and Restatement Effective Date defined in the Amendment
and Restatement.
"Definitive Equity Agreements" shall have the meaning
provided in the definition of Tranche I Term Loan Maturity Date.
"Letter of Intent" shall have the meaning provided in
the definition of Tranche I Term Loan Maturity Date.
"Subsequent Maturity Extension Conditions" shall have
the meaning provided in the definition of Tranche I Term Loan Maturity
Date.
4. Section 1.01(e) of the Credit Agreement is hereby amended
by inserting the following sentence at the end of Section (e) hereof:
"In addition, on the Amendment and Restatement
Effective Date, Chase agrees to make a Tranche B Term Loan in an amount
not to exceed $50 million (as identified by Chase to the Borrowers on
the Amendment and Restatement Effective Date) to the Borrowers (which
Tranche B Term Loan shall be made through the conversion of certain
outstanding demand obligations of the Borrowers) on the same terms and
conditions set forth in this Agreement for Tranche B Term Loans, and
all references to Tranche B Term Loans herein shall include such
Tranche B Term Loan."
5. Section 8 of the Credit Agreement shall be amended
by adding the following new Section 8.17:
"8.17 YEAR 2000 COMPLIANCE. Each Borrower will, and
will cause each of the Guarantors and their respective Subsidiaries to
do, or cause to be done, any reprogramming that such Borrower deems
necessary to permit the proper functioning of each Borrower, the
Guarantors and its Subsidiaries with minimal interruption, in and
following the year 2000, of (i) each Borrower's, each Guarantor's and
each of their Subsidiaries' computer systems and (ii) equipment
containing embedded microchips and the testing of all such systems and
equipment, which reprogramming will be completed by October 31, 1999,
in each case except to the extent that the failure to effect such
reprogramming and testing will not result in a Material Adverse Effect.
The cost to each Borrower, each Guarantor and to each of its
Subsidiaries of such reprogramming and testing is not expected to
result in a Material Adverse Effect."
6. Section 9.12(iii) of the Credit Agreement shall be
amended to read in its entirety as follows:
<PAGE>
5 Page
"(iii) Permitted Equity Swaps; PROVIDED that from and
after the date of the satisfaction of the Subsequent Maturity Extension
Conditions, Patriot REIT may exercise its option to settle in cash all
of its obligations under Permitted Equity Swaps in existence on the
Amendment and Restatement Effective Date, with the proceeds of new
equity issued pursuant to the Definitive Equity Agreement."
7. Section 9 of the Credit Agreement shall be amended
by adding the following new Sections 9.15 and 916:
"9.15 FURTHER AMENDMENTS AND EXTENSION; MORTGAGES AND
OTHER SECURITY. The Borrowers hereby agree that no later than the
earlier of (i) sixty days after the termination of the Letter of Intent
(provided that such sixty-day period will be reduced day-for-day in the
event that the Definitive Equity Agreement remains unsigned beyond
January 31, 1999) or the Definitive Equity Agreement and (ii) June 30,
1999, the Borrowers shall execute and deliver amendments to this
Agreement (which may be in the form of an amendment and restatement if
requested by the Administrative Agent) and all other documentation
requested by the Administrative Agent, and shall cause the Guarantors
and their respective Subsidiaries to execute and deliver reasonably
appropriate documents, to implement the terms and conditions set forth
on Exhibit A (including, without limitation, extensions of the Tranche
I Term Loan Maturity Date and the Tranche II Term Loan Maturity Date
set forth therein). It is understood and agreed that the parties hereto
shall negotiate in good faith the form and substance of the agreements
reasonably necessary to comply with this Section 9.15, provided that it
shall be a breach of this Section 9.15 if the terms and conditions of
Exhibit A are not implemented pursuant to documents which are
reasonably satisfactory in form and substance to the Administrative
Agent and the Required Lenders within the time periods required under
this Section 9.15 (notwithstanding any claims or assertions made by the
Borrowers).
9.16 STRATEGIC ALTERNATIVES. In the event the
Definitive Equity Agreements are not signed on or before February 15,
1999, or after the execution thereof they are terminated, the Borrowers
shall use commercially reasonable efforts to consummate one or more
strategic business initiatives designed to meet its obligations on all
or a portion of the outstandings under the Credit Agreement, including
without limitation, seeking new equity investments, refinancing of
indebtedness or mergers or business combinations."
8. Section 12.01 of the Credit Agreement is hereby amended by
deleting the entire phrase in the second parenthetical thereof and inserting the
following phrase in lieu thereof:
"which for purposes hereof shall also include CSI in its
capacity as Lead Arranger and Book Manager and Paine Webber in
its capacity as Arranger".
9. Effective from and as of December 31, 1998 through and
including March 31, 1999 (as such date may be extended as described in clause
(ii) below, the "Waiver
<PAGE>
6 Page
Termination Date"), the undersigned Lenders hereby waive compliance (the
"Waiver") with the provisions of Section 9.08, Section 9.09 and Section 9.11(a)
of the Credit Agreement and all other terms and conditions, to the extent
necessary to permit the transactions described on Schedule I in accordance with
such Schedule I and as otherwise described in writing to the Lenders. This
Waiver shall be effective only for the period from and as of December 31, 1998
to and including the Waiver Termination Date (the "Waiver Period") and shall be
of no force or effect at any other time; PROVIDED that unless modified in
writing by the Required Lenders, (i) in the event of (I) any payment of
principal in respect of maturity or amortization of Indebtedness, or redemption
for value or assets of such Indebtedness of the Borrowers, the Guarantors and
their Subsidiaries, or any settlement of the existing Permitted Equity Swaps for
cash, debt or other consideration (other than common stock of Patriot and
Wyndham), other than as described on Schedule I hereto, (II) any acquisition or
disposition by the Borrowers, the Guarantors or their Subsidiaries of assets or
property other than (x) on a basis which is consistent with the restrictions on
the acquisition of assets or disposition of assets, as the case may be, set
forth in the terms and conditions of Exhibit A, including the requirement that
all net proceeds (as such term is described in Exhibit A) are applied to repay
Term Loans, and (y) as described on Schedule I hereto, (III) any incurrence of
Indebtedness by the Borrowers, the Guarantors and/or their Subsidiaries (x) in
excess of $25 million in principal amount in the aggregate and (y) after the
execution of the Definitive Equity Agreement, mortgage financing exceeding $250
million in aggregate principal amount (which mortgage financing shall be
permissible only to the extent to which all terms, including the selection of
the property to be mortgaged, are satisfactory to the Administrative Agent in
its sole discretion) on a basis which is consistent with the restrictions on
indebtedness set forth in Exhibit A, including the requirement that all net
proceeds (as such term is described in Exhibit A) are applied to repay Term
Loans, in the case of clauses (x) and (y) other than as described on Schedule I
hereto, (IV) any granting of or creation of any Liens encumbering the assets of
the Borrowers, the Guarantors and/or their Subsidiaries, encumbering assets with
a fair market value of, or securing obligations in excess of, $25 million, other
than as described (x) in clause (III) (y) above, (y) on Schedule I hereto and
(z) on Exhibit A or (V) the payment of Dividends by the Borrowers and their
Subsidiaries other than (x) on a basis set forth in the terms and conditions of
Exhibit A and (y) as described in Schedule I hereto, in the case of clauses (I),
(II), (III), (IV) or (V) on and after December 31, 1998 and prior to the Waiver
Termination Date, such Waiver Period shall automatically terminate and the
Waiver shall no longer be effective on the date of the occurrence of any such
event described in clauses (I), (II), (III), (IV) or (V) above; and (ii) upon
the satisfaction of the Subsequent Maturity Extension Conditions, the Waiver
Termination Date shall automatically be extended to June 30, 1999, subject to
the foregoing conditions.
10. In order to induce the Lenders to enter into this
Amendment and Restatement, the Borrowers hereby represent and warrant that (i)
the representations, warranties and agreements contained in Section 7 of the
Credit Agreement are true and correct in all material respects on and as of the
Amendment and Restatement Effective Date (except with respect to any
representations and warranties limited by their terms to a specific date, which
shall be true and correct in all material respects as of such date) and (ii)
there exists no Default or Event of Default on the Amendment and Restatement
Effective Date, in each case after giving effect to this Amendment and
Restatement.
<PAGE>
7 Page
11. This Amendment and Restatement is limited as specified and
shall not constitute a modification, acceptance or waiver of any other provision
of the Credit Agreement or any other Credit Document.
12. This Amendment and Restatement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which counterparts when executed and delivered shall be an
original, but all of which shall together constitute one and the same
instrument. A complete set of counterparts shall be lodged with the Borrowers
and the Administrative Agent.
13. THIS AMENDMENT AND RESTATEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
14. This Amendment and Restatement shall become effective on
the date (the "Amendment and Restatement Effective Date") when (i) the
Borrowers, the Required Lenders and the Lenders which hold all of the
outstanding Tranche I Term Loans and Tranche II Term Loans on such date shall
have signed a counterpart hereof (whether the same or different counterparts)
and shall have delivered (including by way of facsimile) the same to the
Administrative Agent at the Notice Office, (ii) the Lenders shall have received
the fees described to them in writing by the Administrative Agent and (iii) the
Administrative Agent shall have received any fees agreed between itself and the
Borrowers which are then due and owing.
15. Upon the occurrence of the Amendment and Restatement
Effective Date, the Credit Agreement shall be Amended and Restated in its
entirety in the form as it exists on the date hereof after giving effect to the
changes set forth herein, and the Credit Agreement as it exists prior to the
Amendment and Restatement Effective Date shall be superseded.
16. From and after the Amendment and Restatement Effective
Date, all references in the Credit Agreement and the other Credit Documents to
the Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
* * *
<PAGE>
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Amendment and Restatement to be duly executed and delivered
as of the date first above written.
PATRIOT AMERICAN HOSPITALITY,
INC.
By: /s/
---------------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
CHASE SECURITIES INC., as Lead
Arranger
By: /s/
---------------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK,
Individually and as the Administrative Agent
By: /s/
---------------------------------------
Name:
Title:
PAINE WEBBER REAL ESTATE
SECURITIES INC., Individually, as an
Arranger and as the Syndication Agent
By: /s/
---------------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH,
Individually and as Documentation Agent
By: /s/
---------------------------------------
Name:
Title:
CITIBANK, N.A., Individually and as
Documentation Agent
By: /s/
---------------------------------------
<PAGE>
Name:
Title:
BANKERS TRUST COMPANY, as Documentation Agent
By: /s/
---------------------------------------
Name:
Title:
AG CAPITAL FUNDING PARTNERS, L.P.
By: Angelo, Gordon & Co., L.P. as Investment
Advisor
By: /s/
---------------------------------------
Name:
Title:
AERIES FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
ALLIED IRISH BANKS PLC
By: /s/
---------------------------------------
Name:
Title:
ALLSTATE INSURANCE COMPANY
<PAGE>
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
ALLSTATE LIFE INSURANCE COMPANY
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
AMARA-2 FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
ARAB BANK PLC, GRAND CAYMAN
BRANCH
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
BHF-BANK AKTIENGESELLSCHAFT
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
BALANCED HIGH-YIELD FUND I LTD
By: BHF-BANK Aktiengesellschaft, acting
through its New York Branch, as
attorney-in-fact
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
BANK HAPOALIM, B.M.
By: /s/
---------------------------------------
Name:
Title:
BANK LEUMI USA
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
BANK ONE TEXAS, N.A.
By: /s/
---------------------------------------
Name:
Title:
BANK UNITED
By:
---------------------------------------
Name:
Title:
BANK OF HAWAII
By: /s/
---------------------------------------
Name:
Title:
THE BANK OF NOVA SCOTIA
By: /s/
---------------------------------------
Name:
Title:
BANKBOSTON, N.A.
By: /s/
---------------------------------------
Name:
Title:
BARCLAYS BANK PLC
<PAGE>
By: /s/
---------------------------------------
Name:
Title:
BAYERISCHE HYPO-UND VEREINS BANK
AG, NEW YORK BRANCH
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
BEAR STEARNS INVESTMENT PRODUCTS INC.
By: /s/
---------------------------------------
Name:
Title:
CANADIAN IMPERIAL BANK OF COMMERCE
By: /s/
---------------------------------------
Name:
Title:
CAPTIVA FINANCE LTD.
By: /s/
---------------------------------------
Name:
<PAGE>
Title:
CERES FINANCE LTD.
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
COMPAGNIE FINANCIERE DE CIC ET DE
L'UNION EUROPEENNE
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
CONSECO LIFE INSURANCE COMPANY
By: Conseco Capital Management, Inc., acting
as Investment Advisor
By: /s/
---------------------------------------
Name:
Title:
CRESCENT/MACH I PARTNERS, L.P.
By: TCW Asset Management Company, its
Investor Manager
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
CYPRESSTREE INVESTMENT PARTNERS
II, LTD., By: CypressTree Investment
Management Company, Inc., as Portfolio Manager
By: /s/
---------------------------------------
Name:
Title:
CYPRESS TREE INVESTMENT PARTNERS II, LTD.,
By: CypressTree Investment Management
Company, Inc., as Portfolio Manager
By: /s/
---------------------------------------
Name:
Title:
DLJ CAPITAL FUNDING, INC.
By: /s/
---------------------------------------
Name:
Title:
DEUTSCHE BANK AG, NEW YORK
AND/OR CAYMAN ISLANDS BRANCHES
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
DRESDNER BANK AG, NEW YORK
BRANCH, GRAND CAYMAN BRANCH
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
EATON VANCE SENIOR INCOME TRUST
By: Eaton Vance Management, as Investment
Advisor
By: /s/
---------------------------------------
Name:
Title:
ERSTE BANK DER OUSTERREICHISCHEN
SPARKASSEN AG
By: /s/
---------------------------------------
Name:
Title:
By: /s/
---------------------------------------
Name:
Title:
FIRST AMERICAN BANK TEXAS, SSB
By: /s/
---------------------------------------
<PAGE>
Name:
Title:
FIRST UNION NATIONAL BANK
By: /s/
---------------------------------------
Name:
Title:
FIRST COMMERCIAL BANK
By: /s/
---------------------------------------
Name:
Title:
FIRST DOMINION FUNDING I
By: /s/
---------------------------------------
Name:
Title:
FIRST NATIONAL BANK OF COMMERCE
By: /s/
---------------------------------------
Name:
Title:
FLOATING RATE PORTFOLIO
By: Invesco, Senior Secured Management, Inc.,
as Attorney-in-fact
<PAGE>
By: /s/
---------------------------------------
Name:
Title:
HARTFORD LIFE AND ANNUITY
INSURANCE COMPANY
By: Hartford Investment Series, Inc., its
Agent and Attorney-in-fact
By: /s/
---------------------------------------
Name:
Title:
HIBERNIA NATIONAL BANK
By: /s/
---------------------------------------
Name:
Title:
ING. HIGH INCOME PRINCIPAL
PRESERVATION FUND HOLDING, LDC
By: ING Capital Advisors, Inc., as Investment
Advisor
By: /s/
---------------------------------------
Name:
Title:
INDOSUEZ CAPITAL FUNDING IIA,
LIMITED
By: Indosuez Capital Luxembourg, as Collateral
Manager
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
INDOSUEZ CAPITAL FUNDING IV, L.P.
By: Indosuez Capital Luxembourg, as Collateral
Manager
By: /s/
---------------------------------------
Name:
Title:
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/
---------------------------------------
Name:
Title:
KZH APPALOOSA LLC
By: /s/
---------------------------------------
Name:
Title:
KZH BDC LLC
By: /s/
---------------------------------------
Name:
Title:
KZH III LLC
By: /s/
---------------------------------------
Name:
Title:
<PAGE>
KZH IV LLC
By: /s/
---------------------------------------
Name:
Title:
KZH PAMCO LLC
By: /s/
---------------------------------------
Name:
Title:
KZH SHENKMAN LLC
By: /s/
---------------------------------------
Name:
Title:
KZH CNC LLC
By: /s/
---------------------------------------
Name:
Title:
KZH CRESCENT-2 LLC
By: /s/
---------------------------------------
Name:
Title:
KZH CRESCENT LLC
<PAGE>
By: /s/
-----------------------------------------
Name:
Title:
KZH CYPRESSTREE-1 LLC
By: /s/
-----------------------------------------
Name:
Title:
KZH ING-2 LLC
By: /s/
-----------------------------------------
Name:
Title:
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD., NEW YORK BRANCH
By: /s/
-----------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
By: Highland Capital Management, L.P., as
Collateral Manager
By: /s/
-----------------------------------------
Name:
Title:
DEBT STRATEGIES FUND II, INC.
<PAGE>
By: /s/
-----------------------------------------
Name:
Title:
MERRILL LYNCH GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
By: Merrill Lynch Asset Management, L.P.,
as Investment Advisor
By: /s/
-----------------------------------------
Name:
Title:
MORGAN STANLEY DEAN WITTER
PRIME INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By: /s/
-----------------------------------------
Name:
Title:
MERRILL LYNCH SENIOR FLOATING
RATE FUND, INC.
By: /s/
-----------------------------------------
Name:
Title:
<PAGE>
MERRILL LYNCH DEBT STRATEGIES PORTFOLIO
By: MERRILL LYNCH ASSET MANAGEMENT, L.P.,
as Investment Advisor
By: /s/
-----------------------------------------
Name:
Title:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: /s/
-----------------------------------------
Name:
Title:
MORGAN STANLEY SENIOR FUNDING, INC.
By: /s/
-----------------------------------------
Name:
Title:
THE BANK OF NEW YORK as Trustee on behalf
of NATS LOAN TRUST 10 and not in its
individual capacity
By: /s/
-----------------------------------------
Name:
Title:
NATIONSBANK OF TEXAS, N.A.
<PAGE>
By: /s/
-----------------------------------------
Name:
Title:
NORTHWOODS CAPITAL, LIMITED
By: Angelo, Gordon & Co., L.P. as Investment
Advisor
By: /s/
-----------------------------------------
Name:
Title:
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: /s/
-----------------------------------------
Name:
Title:
By: Oak Hill Securities MGP, Inc.
its General Partner
By: /s/
-----------------------------------------
Name:
Title:
OASIS COLLATERALIZED HIGH INCOME PORTFOLIO,
LTD.
By: /s/
-----------------------------------------
Name:
Title:
OCTAGON LOAN TRUST
By: Octagon Credit Investors, as Manager
<PAGE>
By: /s/
-----------------------------------------
Name:
Title:
PAM CAPITAL FUNDING LP
By: Highland Capital Management, L.P.,
as its Collateral Manager
By: /s/
-----------------------------------------
Name:
Title:
PACIFIC LIFE INSURANCE COMPANY
formerly known as Pacific Mutual Life Insurance
Company
By: /s/
-----------------------------------------
Name:
Title:
By: /s/
-----------------------------------------
Name:
Title:
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Asset Management, as
its Investment Manager
By: /s/
-----------------------------------------
Name:
Title:
PAMCO CAYMAN LTD.
By: Highland Capital Management, L.P.,
as Collateral Manager
By: /s/
-----------------------------------------
<PAGE>
Name:
Title:
PILGRIM AMERICAN HIGH INCOME INVESTMENTS LTD
By: Pilgrim Investments, Inc., as
its Investment Manager
By: /s/
-----------------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc., as
its Investment Manager
By: /s/
-----------------------------------------
Name:
Title:
PUTNAM DIVERSIFIED INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
PUTNAM ASSET ALLOCATION FUNDS BALANCED
PORTFOLIO
By: /s/
-----------------------------------------
Name:
Title:
PUTNAM FUNDS TRUST, on behalf of
<PAGE>
PUTNAN HIGH YIELD TRUST II
By: /s/
-----------------------------------------
Name:
Title:
PUTNAM PREMIER INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
PUTNAM VARIABLE TRUST, on behalf of
PUTNAM VT DIVERSIFIED INCOME FUND
By: /s/
-----------------------------------------
Name:
Title:
PUTNAM VT HIGH YIELD TRUST
By: /s/
-----------------------------------------
Name:
Title:
SANKATY HIGH YIELD ASSET PARTNERS, L.P.
By: /s/
-----------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
<PAGE>
By: Boston Management and Research,
as Investment Advisor
By: /s/
-----------------------------------------
Name:
Title:
SIAM COMMERCIAL BANK PUBLIC COMPANY LIMITED,
NEW YORK AGENCY
By: /s/
-----------------------------------------
Name:
Title:
By: /s/
-----------------------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/
-----------------------------------------
Name:
Title:
STRATA FUNDING LTD
By: /s/
-----------------------------------------
Name:
Title:
THE SUMITOMO BANK, LIMITED
<PAGE>
By: /s/
-----------------------------------------
Name:
Title:
SUMMIT BANK
By:
-----------------------------------------
Name:
Title:
TORONTO DOMINION (TEXAS), INC.
By: /s/
-----------------------------------------
Name:
Title:
THE TRAVELERS INSURANCE COMPANY
By: /s/
-----------------------------------------
Name:
Title:
VAN KAMPEN PRIME RATE INCOME TRUST
By: /s/
-----------------------------------------
Name:
Title:
VAN KAMPEN SENIOR INCOME TRUST
By: /s/
-----------------------------------------
<PAGE>
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/
-----------------------------------------
Name:
Title:
MERRILL LYNCH CAPITAL CORPORATION
By: /s/
-----------------------------------------
Name:
Title:
<PAGE>
Exhibit A
SUMMARY OF PLAN B
TERMS AND CONDITIONS
MATURITY EXTENSIONS: The final maturity date for the Tranche I Term
Loan shall be extended to March 31, 2000.
The final maturity date for the Tranche II
Term Loan shall be extended to March 31,
2000.
AMORTIZATION: $300 million on December 31, 1999 against
Tranches I and II PRO RATA (reduced by
previous reductions to the Term Loans prior
to such date).
MARK TO MARKET PRICING: 75 bps increase to all Tranches upon the
implementation of Plan B.
MORTGAGES AND OTHER
COLLATERAL: In addition to the security currently under
the Credit Agreement, the Lenders and certain
swap creditors shall receive, on a basis
consistent with their current security
interests, and in form and substance
reasonably satisfactory to the Administrative
Agent:
(i) Deeds of trust, mortgages, leasehold deeds of
trust or leasehold mortgages (each a
"Mortgage" and collectively, the "Mortgages"),
which Mortgages shall cover such of the
unencumbered real property owned or leased by
the Borrowers, the Guarantors and/or their
subsidiaries as agreed between the
Administrative Agent and Patriot, provided
that such property will constitute
substantially all of such real property as may
be mortgaged without violating existing
contractual obligations, and structured to
avoid excessive mortgage recording taxes.
(ii) Patriot shall use reasonable efforts to obtain
subordination, nondisturbance and attornment
agreements, assignments of leases, landlord
consents, tenant estoppel certificates, and
such other documents relating to the Mortgages
that the Administrative Agent may reasonably
request.
(iii) Extended coverage policies of mortgage title
insurance covering each mortgaged property, in
amounts reasonably satisfactory to the
Administrative Agent.
<PAGE>
Exhibit A
(iv) A Security Agreement in form and substance
satisfactory to the Administrative Agent (the
"Security Agreement") covering all of the
Borrowers', the Guarantors' and their
subsidiaries' present personal property, in
each case together with:
(a) Executed Financing Statements
(Form UCC-1).
(b) Certified copies of Requests for
Information or Copies (Form UCC-11), or
equivalent reports.
(c) Evidence of the completion of all
other recordings and filings of, or with
respect to, the Security Agreement as
may be necessary or, in the reasonable
opinion of the Administrative Agent,
desirable to perfect the security
interests intended to be created by the
Security Agreement.
(v) Customary opinions of counsel relating to the
foregoing.
COVENANTS: The following covenants shall be amended
and/or added to the Credit Agreement (it
being understood and agreed that the
transactions described on Schedule I shall
be permitted).
(i) Total Debt/EBITDA shall be less than or equal
to 6.0x.
(ii) EBITDA/Interest shall be greater than or equal
to 1.75x.
(iii) EBITDA/Fixed Charges shall be lowered in
connection with a potential equity forward
settlement involving the conversion to
preferred stock and revised to be greater
than or equal to 1.35x.
<PAGE>
Exhibit A
(iv) Dividends shall be restricted and/or
prohibited as follows:
(a) Dividends (including dividends paid
through the issuance of preferred
stock) shall be restricted to the
minimum amount necessary for Patriot
REIT to maintain REIT status (including
allowing the transfer of assets among
the Borrowers and Guarantors to
maintain REIT status).
(b) The dividend restriction shall be
expanded to cover Wyndham and its
subsidiaries.
(c) Exceptions to (iv) (a) or (iv) (b)
shall be made for dividends paid on
preferred equity issued and outstanding
on the date hereof, and preferred stock
issued in lieu of the dividends on
common stock, and on OP Units, in each
case payable at the time of payments of
dividends on common stock, and on
preferred stock issued (or the proceeds
of which are used) to settle the
existing equity forwards, provided that
the terms taken as a whole on any
preferred stock issued to settle the
existing equity forwards shall be
limited to terms that are no less
favorable to the Borrower and Lenders
than the stock to be issued to the
sponsors pursuant to the Letter of
Intent.
(v) The 5% net tangible asset basket shall be
removed from the Credit Agreement; liens
provided for under the Credit Agreement (other
than liens in Section 9.06 (xiv) thereof
except to the extent incurred prior to January
21, 1999), liens contemplated within Schedule
I and replacements and refinancings thereof
encumbering same assets, shall be permitted.
(vi) The Borrowers, the Guarantors and their
subsidiaries shall be required to repay
outstanding Term Loans (and thereafter
reduce Revolving Loan Commitments) with the
proceeds (net of reasonable costs and
expenses) of the incurrence of debt, the
issuance or sale of equity (other than the
sale of equity (common or preferred) the
proceeds of which was to be used to repay
the existing equity forwards) or any capital
contributions or dispositions of assets as
follows, with customary exceptions:
(a) 100% of debt incurrence proceeds;
<PAGE>
Exhibit A
(b) 100% of equity sales or issuance
other than common or preferred equity
issued or sold the proceeds of which are
issued to settle the existing equity
forwards; provided that after $750 million
of Term Loans have been repaid, the
percentage shall be reduced to 50% if no
default or event of default exists;
(c) 100% of asset disposition (net of (i)
taxes required to be paid as a result of
any gain to Patriot and/or its
subsidiaries and (ii) any amount used to
pay fees owing under the Credit
Agreement); provided that after $750
million of Term Loans have been repaid,
at any time that no default or event of
default exists (x) such percentage shall
be reduced to 85% (until Patriot, the
Guarantors and their subsidiaries retain
$40 million as a result thereof) and (y)
if Patriot's Total Debt/EBITDA (on a
pro-forma historical basis) is less than
5.0x, such percentage shall be reduced
to 75% with the remaining 25%, to be
reinvested in assets of the business;
and
(d) all mandatory recapture provisions
described above shall apply to repay
first Tranche I and Tranche II Term
Loans PRO RATA, then Tranche III0 Term
Loans, then Tranche B Term Loans, and
thereafter to reduce Revolving Loan
Commitments after all Term Loans are
repaid in full.
(vii) Restrictions on acquisitions of assets or
other persons or entities, subject to a
basket for up to $10 million per acquisition
(and $50 million in the aggregate).
(viii) Neither Borrowers, the Guarantors nor their
subsidiaries shall be permitted to merge,
liquidate or otherwise dispose of any of its
assets, other than (x) equipment or
intangible assets in the ordinary course of
business, (y) the Borrowers, the Guarantors
and their subsidiaries may merge, liquidate
or dispose of assets with, into or among
each other so long as the security interests
under the Mortgages and Security Agreement
remain in full force and effect and (z)
disposition of Non-Strategic Assets (as
described in the Credit Agreement, and which
Non-Strategic Assets shall not include,
without limitation, hotels which are as of
the Amendment and Restatement Effective Date
flagged as Grand Bay (or Carefree), Wyndham,
Wyndham Resorts, Wyndham Gardens, Wyndham
Grand Heritage or Summerfield hotels) for
100% cash consideration so long as the
amount received is equal to or greater than
8x EBITDA (calculated on the latest 12-month
trailing numbers).
<PAGE>
Exhibit A
(ix) The Borrowers, the Guarantors and their
subsidiaries shall incur no further
Indebtedness, subject to customary exceptions
to be agreed upon, provided that Patriot and
or its subsidiaries may incur non-recourse
mortgage financing on terms and conditions
satisfactory to the Administrative Agent, the
net proceeds of which exceed 6.4x EBITDA
(calculated on the latest 12-month trailing
numbers).
(x) Prepayment or other retirement for value of
certain indebtedness, or amendments thereto,
shall be restricted.
(xi) The $200 million basket for Permitted Equity
Swaps to be settled in cash shall be deleted.
<PAGE>
Exhibit 99.2
February 1, 1999
Patriot American Hospitality, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Attn.: William W. Evans III
Wyndham International, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Attn.: Leslie Ng
Ladies and Gentlemen:
This letter agreement (the "Amendment") among Patriot American
Hospitality, Inc. (the "REIT"), Wyndham International, Inc. (the "OPCO") (each a
"Company" and collectively, the Companies") and PaineWebber Financial Products
Inc. ("PaineWebber") confirms, modifies and amends, in part, certain of the
terms and conditions of that certain Purchase Price Adjustment Mechanism
Agreement, dated April 6, 1998 between the Companies and PaineWebber, as amended
by letter agreements dated August 14, 1998, September 30, 1998 and October 22,
1998 (as so amended, the "Agreement").
Notwithstanding the terms and conditions of the Agreement, the
Companies and PaineWebber agree as follows:
1. CASH SETTLEMENT PROVISIONS.
(a) The following sentence shall be added at the end of
Section 3.1 of the Agreement: "Notwithstanding the foregoing, the Companies may
elect on any date to settle all or a portion of the Adjustment Shares through a
cash payment to PaineWebber equal to the product of the number of Adjustment
Shares to be settled times the Reference Price on such date."
(b) The following sentence shall be added at the end of
Section 3.2(b) of the Agreement: "Notwithstanding the foregoing, in the event
that Adjustment Shares have been completely settled in cash pursuant to the last
sentence of Section 3.1, PaineWebber shall, concurrently with such complete cash
settlement, deliver to the Companies all of the Adjustment Shares and all of the
Collateral Shares.
<PAGE>
2. INITIAL STANDSTILL. PaineWebber agrees that, subject to Section 4
hereof, during the period from the date hereof to and including February 15,
1999 (the "Initial Standstill Period"), it will not require a settlement
pursuant to the Agreement and will not sell, assign or otherwise transfer any
interest in any of the Adjustment Shares or any Collateral Shares or sell,
assign or otherwise transfer any interest in any of its rights under the
Agreement (as amended by this letter agreement).
3. EXTENDED STANDSTILL. (a) If, on or prior to February 15, 1999, the
Companies have entered into an Acceptable Transaction Agreement (as defined
below), and on such date there is no Cross-Default (without giving effect to any
5 or 15-day cure period provided in Section 4.2(a) of the Agreement),
PaineWebber agrees that during the period from the date hereof to and including
the earlier of (A) June 30, 1999 and (B) the date of consummation of the
transactions contemplated by an Acceptable Transaction Agreement (the "Extended
Standstill Period"), it will not require a settlement pursuant to the Agreement
and will not sell, assign or otherwise transfer any interest in any of the
Adjustment Shares or any Collateral Shares or sell, assign or otherwise transfer
any interest in any of its rights under the Agreement (as amended by this letter
agreement).
(b) "Acceptable Transaction Agreement" means a definitive agreement,
subject only to customary closing conditions reasonably satisfactory to
PaineWebber, with one or more parties (the "Other Parties") for a transaction
that contains provisions reasonably acceptable to PaineWebber for a complete
cash settlement of all of the Adjustment Shares on or prior to June 30, 1999,
including without limitation the transaction contemplated by the letter of
intent attached as Exhibit 99.1 to the Companies' Current Report on Form 10-K
filed with the Securities and Exchange Commission on December 16, 1998.
4. STANDSTILL TERMINATION. (a) The agreements of PaineWebber set forth
in Sections 2 and 3 of this Amendment shall terminate and have no further force
or effect, and the Initial Standstill Period or the Extended Standstill Period,
as the case may be, shall terminate, upon the occurrence of any of the
following: (i) the Closing Price on the Relevant Exchange of the Paired Shares
for any Exchange Trading Day during the Initial Standstill Period or the
Extended Standstill Period, as the case may be, is equal to or less than $4.50,
or (ii) the counterparty to any other "forward equity" transaction similar to
the transaction governed by the Agreement to which the Companies are party (any
such counterparty, a "FET Counterparty" including without limitation affiliates
of NationsBank and UBS) shall settle, sell, transfer or otherwise dispose of any
economic interest in any Paired Shares held by such FET Counterparty in
connection with such transaction or sell, transfer or assign any interest in any
agreement relating to any such "forward equity" transaction to any entity that
is not an affiliate of such FET counterparty, or (iii) a Cross-Default or a
material default under the Agreement (as amended by this Amendment) which
remains uncured five days after notice thereof, or (iv) an Acceptable
Transaction Agreement entered into by the Companies shall be
2
<PAGE>
terminated or the Companies or any Other Parties shall have publicly announced
an intention not to proceed with the transactions contemplated by an Acceptable
Transaction Agreement unless, at or prior to the time of such termination or
announcement, the Companies shall have entered into another Acceptable
Transaction Agreement, or (v) PaineWebber terminates the Asset Purchase
Agreement (the "Bay Meadows Agreement") relating to Bay Meadows Racecourse (A)
prior to the end of the Due Diligence Period in accordance with subsection
9.1(a)(i) of the Bay Meadows Agreement, (B) as a result of the Companies'
failure to perform any of their material obligations under the Bay Meadows
Agreement or a material breach or inaccuracy of the Companies' representations
and warranties contained in the Bay Meadows Agreement in accordance with Section
9.1(b) of the Bay Meadows Agreement, except in the case of a material breach or
inaccuracy of the Companies' representations and warranties that results from
facts or circumstances occurring after the Bay Meadows Agreement is signed and
unknown to the Companies at the time the Bay Meadows Agreement is signed, or (C)
as a result of litigation that prohibits the Companies from consummating the
transactions contemplated by the Bay Meadows Agreement.
5. SPREAD. (a) Notwithstanding the Agreement, during the Initial
Standstill Period and, if there is an Extended Standstill Period, the Extended
Standstill Period, the Spread shall be 5.00% per annum.
(b) Notwithstanding the Agreement or Section 5(a) of this letter
agreement, the Spread shall increase by 0.25% (up to a maximum increase of
2.00%) on the 16th calendar day, and on every 7th calendar day thereafter, on
which (i) any Registration Statement contemplated by the Agreements is not
effective or is the subject of a stop order by the SEC, or (ii) PaineWebber has
been advised by the Companies, their counsel or their independent accountants
that any such Registration Statement or Prospectus is not usable for its
intended purpose or that any such Registration Statement or Prospectus contains
an untrue statement of a material fact or omits to state a material fact
necessary in order to make the statements made, in the light of the
circumstances under which they were made, not misleading, or (iii) the
Registration Statement or the Prospectus for any other reason is not available
for sales or resales of Paired Shares by PaineWebber (or any affiliate of
PaineWebber designated by PaineWebber), or (iv) the spread payable to any other
FET Counterparty is required to be increased pursuant to any agreement with any
FET Counterparty similar in effect to the provisions of this Section 5. Such
calendar days shall be counted in the aggregate and need not be consecutive.
(c) Notwithstanding this paragraph 5, for purposes of the definition of
"Distribution Amount" in the Agreement, the Spread shall be deemed to be 1.4%.
6. UNWIND FEE. (a) In the event of a cash settlement of Adjustment
Shares pursuant to the last sentence of Section 3.1 of the Agreement (as amended
by this letter agreement), the Companies shall pay on the date of such cash
settlement an unwind fee
3
<PAGE>
to PaineWebber equal to 2% of the product of the Adjustment Shares so settled
times the Reference Price on such date.
(b) The resale spread referred to in subclauses (iii) and (iv) of the
definition of "Settlement Amount" in the Agreement shall be 200 basis points.
7. MOST FAVORED COUNTERPARTY. The Companies hereby agree that if the
Companies grant to any FET Counterparty rights (other than any rights to fees or
other compensation or remuneration) in connection with the settlement of the
"forward equity" transaction among the Companies and such FET Counterparty that
are, in the opinion of PaineWebber, more favorable to such FET Counterparty than
the rights afforded to PaineWebber by the Agreement (as amended by this letter
agreement) in connection with settlement of the Adjustment Shares, then upon
written notice by PaineWebber to the Companies, PaineWebber shall have the
benefit of corresponding rights. The Companies shall enter into such amendments
to the Agreement as may be reasonably requested by PaineWebber to evidence the
effectiveness of any such rights; provided that it shall not be necessary to
enter into any such amendment for such rights to be effective. Until the
Adjustment Shares have been settled in full, the Companies agree promptly to
provide to PaineWebber copies of any agreements or amendments that the Companies
enter into with any FET Counterparty or its affiliates in connection with the
settlement of any forward equity transaction.
8. LEGAL FEES. The Companies shall reimburse PaineWebber for the
reasonable fees and expenses of outside counsel retained by PaineWebber in
connection with the Agreement (as amended by this Amendment) and the
transactions contemplated thereby (including the reasonable fees and expenses of
Davis Polk & Wardwell and Cravath, Swaine & Moore); provided, that the Companies
shall be entitled to a credit equal to all amounts paid or credited against
purchase price in respect of such fees and expenses pursuant to the Bay Meadows
Agreement.
9. REGISTRATION STATEMENTS. The Companies shall provide (i) fourteen
(14) days' written notice to PaineWebber before filing any registration
statement (or post-effective amendment thereto) with the Securities and Exchange
Commission (the "Commission"), and (ii) prompt notice to PaineWebber before
filing any pre-effective amendment to a registration statement with the
Commission; provided, that such notice provisions shall not apply with respect
to any registration statement (or amendment thereto) that becomes effective upon
filing with the Commission.
10. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreement.
11. AGREEMENTS IN FULL FORCE AND EFFECT. The Agreement (as amended by
this letter agreement) is hereby ratified and reaffirmed in its entirety and
hereby
4
<PAGE>
declared to be in full force and effect.
12. COUNTERPARTS. This letter agreement may be executed in several
counterparts, all of which shall be identical, and all of which counterparts
together shall constitute one and the same instrument.
5
<PAGE>
Sincerely,
PaineWebber Financial Products, Inc.
By: /s/ Terrence E. Fancher
--------------------------------
Name:
Title:
AGREED TO AND ACCEPTED:
Patriot American Hospitality, Inc. Wyndham International, Inc.
By: /s/ William W. Evans III By: /s/ William W. Evans III
-------------------------- ---------------------------
Name: Name:
Title: Title:
6
<PAGE>
Exhibit 99.3
SECOND AMENDMENT TO AGREEMENTS
THIS SECOND AMENDMENT AGREEMENTS (this "AMENDMENT") is made as of the
23rd day of November, 1998, by and among Patriot American Hospitality, Inc.,
Wyndham International, Inc. (together, the "COMPANIES") and NationsBanc Mortgage
Capital Corporation (the "PURCHASER").
WHEREAS, NMS Services, Inc. (the "ORIGINAL PURCHASER") and the
Companies entered into (i) a Purchase Agreement dated as of February 26, 1998
(the "PURCHASE AGREEMENT") pursuant to which the Original Purchaser purchased
4,900,000 shares (the "PURCHASE SHARES") of common stock, par value $.01 per
share, of each of the Companies, which shares of common stock are paired and
trade as a unit consisting of one share of common stock of each Company (the
"PAIRED SHARES"), and (ii) an ISDA Master Agreement (including a Schedule
thereto) and a Purchase Price Adjustment Mechanism, each dated as of February
26, 1998 (collectively, the "ADJUSTMENT AGREEMENT"), pursuant to which the
Original Purchaser and the Companies may make certain payments or deliveries of
Paired Shares as adjustments to the purchase price for the Purchase Shares;
WHEREAS, the Companies delivered to the Original Purchaser two letters
relating to underwriting matters and tax matters, respectively,
contemporaneously with the execution of the Purchase Agreement and the
Adjustment Agreement (the "LETTERS");
WHEREAS, the Original Purchaser and the Purchaser entered into a
Transfer and Assignment Agreement dated as July 31, 1998, to which the Companies
agreed and consented, pursuant to which the Original Purchaser transferred and
assigned, and the Purchaser received and assumed, all of the Purchase Shares and
all of the Original Purchaser's rights and obligations under the Purchase
Agreement, the Adjustment Agreement and the Letters;
WHEREAS, the Purchaser and the Companies entered into an Amendment to
Agreements dated as of August 14, 1998, pursuant to which the Purchaser and the
Companies effected certain amendments to the Purchase Agreement and the
Adjustment Agreement;
WHEREAS, there have been no deliveries of Interim Settlement Shares
pursuant to Section IV of the Adjustment Agreement prior to the date hereof; and
WHEREAS, the parties hereto wish to amend the Adjustment Agreement to
eliminate Section IV thereof;
NOW THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
Section IV of the Adjustment Agreement is hereby deleted in its
entirety.
The Purchase Agreement, the Adjustment Agreement (as amended by this
Amendment) and the Letters are hereby ratified and reaffirmed in their entirety
and hereby declared to be in full force and effect.
This Amendment may be executed in several counterparts, all of which
shall be identical, and all of which counterparts together shall constitute one
and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the day and year first above written.
NATIONSBANC MORTGAGE CAPITAL
CORPORATION
By: /s/ Don Benningfield
---------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ William W. Evans III
---------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By: /s/ William W. Evans III
---------------------------------
Name:
Title:
<PAGE>
Exhibit 99.4
THIRD AMENDMENT TO AGREEMENTS
THIS THIRD AMENDMENT TO AGREEMENTS (this "AMENDMENT") is made as of the
10th day of December, 1998, by and among Patriot American Hospitality, Inc.,
Wyndham International, Inc. (together, the "COMPANIES") and NationsBanc Mortgage
Capital Corporation (the "PURCHASER").
WHEREAS, NMS Services, Inc. (the "ORIGINAL PURCHASER") and the
Companies entered into (i) a Purchase Agreement dated as of February 26, 1998
(the "PURCHASE AGREEMENT") pursuant to which the Original Purchaser purchased
4,900,000 shares (the "PURCHASE SHARES") of common stock, par value $.01 per
share, of each of the Companies, which shares of common stock are paired and
trade as a unit consisting of one share of common stock of each Company (the
"PAIRED SHARES"), and (ii) an ISDA Master Agreement (including a Schedule
thereto) and a Purchase Price Adjustment Mechanism, each dated as of February
26, 1998 (collectively, the "ADJUSTMENT AGREEMENT"), pursuant to which the
Original Purchaser and the Companies may make certain payments or deliveries of
Paired Shares as adjustments to the purchase price for the Purchase Shares;
WHEREAS, the Companies delivered to the Original Purchaser two letters
relating to underwriting matters and tax matters, respectively,
contemporaneously with the execution of the Purchase Agreement and the
Adjustment Agreement (the "LETTERS");
WHEREAS, the Original Purchaser and the Purchaser entered into a
Transfer and Assignment Agreement dated as July 31, 1998 (the "ASSIGNMENT
AGREEMENT,") to which the Companies agreed and consented, pursuant to which the
Original Purchaser transferred and assigned, and the Purchaser received and
assumed, all of the Purchase Shares and all of the Original Purchaser's rights
and obligations under the Purchase Agreement, the Adjustment Agreement and the
Letters;
WHEREAS, the Purchaser and the Companies entered into an Amendment to
Agreements dated as of August 14, 1998 (the "FIRST AMENDMENT") and a Second
Amendment to Agreements dated as of November 23, 1998 (the "SECOND AMENDMENT"
and, together with the Purchase Agreement, the Adjustment Agreement, the Letters
and the First Amendment, the "AGREEMENTS") pursuant to which the Purchaser and
the Companies effected certain amendments to the Purchase Agreement and the
Adjustment Agreement;
WHEREAS, the parties hereto wish to effect certain further amendments
to the Agreements as set forth herein;
NOW THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. SUBSTITUTION OF LISTED HOTELS. Notwithstanding Section 2 of the
First Amendment, the following hotels shall not be considered Listed Hotels for
purposes of the Agreements: Doubletree Suites Minneapolis, Del Mar Hilton,
Holiday Inn San Francisco, Hunt Valley Embassy Suites, Hyatt Newporter and
Valley River Inn. The parties hereto agree that the hotels listed on Exhibit A
hereto (the "NEW LISTED HOTELS") shall be Listed Hotels for all purposes under
the Agreements. Clause (i) of paragraph (5) of Section 2 of the First Amendment
is hereby amended by adding the words ", subject, in the case of the net
proceeds of any sale, lease, conveyance or transfer of, or the granting of a
deed of trust, mortgage or other similar encumbrance securing any indebtedness
covering, any New Listed Hotel, to the terms and conditions of the Amended and
Restated Credit Agreement dated as of July 18, 1997, amended and restated as of
December 16, 1997 and further amended and restated as of June 2, 1998 among the
Companies and the various lenders named therein (the "CREDIT AGREEMENT")" after
the word "Mechanism" therein.
2. MODIFICATION OF STOCK SETTLEMENT AND NET STOCK SETTLEMENT MECHANICS.
Notwithstanding any other provision of the Agreements, in the event that the
Purchaser requires a settlement of all or any part of
<PAGE>
the Transaction pursuant to the provisions entitled "Mandatory Unwind Event"
of Section VI of the Adjustment Agreement and the Companies elect Stock
Settlement or Net Stock Settlement as the settlement method, the Purchaser
shall have the right to elect the unwind method for such settlement and, if
the Purchaser elects Underwritten Sale as the unwind method, the Purchaser or
one or more of its affiliates shall sell the Stock Settlement Shares or the
Net Stock Settlement Shares, as the case may be, in a commercially reasonable
manner selected by the Purchaser in its sole discretion, which may involve
public or (to the extent and in the manner permitted by applicable federal
and state securities laws) private sales. Notwithstanding Section 7(k) of the
Purchase Agreement, in the event that the Purchaser elects Underwritten Sale
as the unwind method in connection with any such settlement, the Purchaser
may (but shall be under no obligation) elect not to require that the
Purchaser and the Companies enter into an underwriting agreement as described
in such Section 7(k). The definition of "Mandatory Unwind Date" in Section II
of the Adjustment Agreement is hereby amended to read in its entirety as
follows: "The date specified in the notice delivered to the Companies
pursuant to Section VI." Section 7(a)(iv) of the Purchase Agreement is hereby
amended by adding the words "; provided that the Purchaser may make such a
request in connection with the closing of any sales of Paired Shares with an
aggregate net proceeds of at least $10,000,000 effected in connection with a
settlement of the Transaction with respect to which the settlement method is
Underwritten Sale" after the word "period" in each of the second and the
third parenthetical phrase contained in such Section 7(a)(iv).
3. ELIMINATION OF CERTAIN BLACK-OUT PERIODS. The Agreements are hereby
amended to provide that, except as provided below, the Companies shall have no
right to suspend the right of the Purchaser to effect sales of the Shares
through the Prospectus forming a part of the Registration Statement at any time.
Without limiting the generality of the foregoing, (i) the second and third
sentences of Section 5(b) of the Purchase Agreement are hereby deleted in their
entirety and (ii) the parenthetical phrase contained in, and the proviso to,
Section 7(b)(i)(E) of the Purchase Agreement are hereby deleted in their
entirety. Notwithstanding the foregoing, the Companies may suspend the right of
the Purchaser to effect sales of the Paired Shares through the use of the
Prospectus forming a part of the Registration Statement (except as may further
be limited in the Agreements) for a period of no more than 90 days (or fewer if
the Purchaser is notified to that effect by the Companies, in any event which
period shall commence at the time the Companies give the Purchaser written
notice of such suspension) in connection with a public offering or a sale
pursuant to Rule 144A under the Securities Act (an "OFFERING") of Paired Shares
(or shares of capital stock convertible into Paired Shares) by the Companies (a
"BLACK-OUT PERIOD"); provided that (i) there shall be no more than three
Black-Out Periods during any 12--month period, (ii) the total number of days of
all Black-Out Periods during any 12-month period shall not exceed 120 and (iii)
no Black-Out Period shall be applicable or in any way restrict the Purchaser
after the Maturity Date, or after the occurrence of any of the events listed in
the provisions entitled "Mandatory Unwind Event" of Section VI of the Adjustment
Agreement. The Purchaser hereby covenants that it will not sell any Paired
Shares pursuant to said Prospectus during a Blackout Period.
4. PROVISIONS RELATING TO REGISTRATION STATEMENTS. The Companies agree
to use their best efforts to cause Registration Statements to be effective at
all times covering sales of a number of Paired Shares at least equal to the
quotient obtained by dividing (i) the sum of (A) the Settlement Amount that
would apply if the Exchange Trading Day immediately preceding the date of
determination were Day S with respect to a settlement of the full number of
Underlying Shares PLUS (B) the aggregate cash settlement value, as determined by
the Calculation Agent, on the date of determination of all other "forward
equity" transactions similar to the Transaction to which the Companies are a
party BY (ii) the Daily Average Price on the Exchange Trading Day immediately
preceding the date of determination.
5. MARK-TO-MARKET PROVISIONS. (a) The Companies acknowledge and agree
that the 8,433,910 Paired Shares, the 5,452,637 Paired Shares and the 5,162,494
Paired Shares previously delivered to the Purchaser are Collateral Shares
subject to the security interest in favor of the Purchaser created by the First
Amendment. The Purchaser is returning to the Companies herewith the 2,375,000
Collateral Shares delivered to the Purchaser pursuant to the First Amendment,
and such Paired Shares shall no longer constitute Collateral Shares.
<PAGE>
(b) The Companies agree that if on the last Exchange Trading Day of the
first and the third week of any month (each such Exchange Trading Day, a "MARK
DATE") 125% of the Settlement Amount that would apply if such Exchange Trading
Day were Day S with respect to a settlement of the full number of Underlying
Shares (the "TARGET VALUE") exceeds the product of (i) the Daily Average Price
for the Exchange Trading Day immediately preceding such Mark Date TIMES (ii) the
sum of the number of Underlying Shares on such Mark Date and number of
Collateral Shares delivered prior to such Mark Date (the "COLLATERAL VALUE"),
the Companies shall, no later than the third Exchange Trading Day following such
Mark Date, deliver additional Collateral Shares to the Purchaser so that the
Collateral Value shall exceed the Target Value.
(c) All Collateral Shares delivered pursuant to this paragraph shall be
Collateral Shares for all purposes under the Agreements and shall be subject to
the security interest in favor of the Purchaser created by the First Amendment.
Delivery of any such Collateral Shares shall be effected by delivery of stock
certificates for such Collateral Shares to the Purchaser endorsed to the
Purchaser or in blank or accompanied by a duly executed instrument of transfer
to the Purchaser or in blank.
(d) The Purchaser hereby irrevocably appoints and authorizes
NationsBanc Mortgage Capital Corporation to act as collateral agent (in such
capacity, the "COLLATERAL AGENT") for and on behalf of the Purchaser. The
Collateral Agent may exercise any of the rights of the secured party hereunder
and under the Agreements for the benefit of the Purchaser. Such appointment and
authorization shall be effective as of February 26, 1998.
(e) Section 5(b) of the Purchase Agreement is hereby amended by
deleting clause (i) of the first sentence thereof.
6. ADDITIONAL DEFAULT; MANDATORY PHYSICAL SETTLEMENT. (a) The parties
agree that the following event shall constitute a "DEFAULT" by theCompanies for
all purposed under the Agreements (it being understood that such Defaults shall
be in addition to the Defaults set forth in the First Amendment): the Companies
shall fail to pay when due the Settlement Amount or deliver when due any Paired
Shares required to be delivered, as the case may be, pursuant to Section III of
the Adjustment Agreement or pay when due any amounts required pursuant to
Section III.E.6 or III.E.7 of the Adjustment Agreement, in each case upon any
settlement of the Transaction in whole or in part.
(b) The parties agree that, notwithstanding anything to the contrary in
the Agreements, upon the occurrence of a Change of Control (as defined in the
Credit Agreement as in effect on the date hereof) the Transaction shall be
settled in whole, with the settlement method being Physical Settlement and Day S
being the date of occurrence of such Change in Control.
7. PARTICIPATION IN FUTURE FINANCINGS. The Companies agree that if at
any time prior to the first anniversary hereof the Companies shall execute debt,
equity or equity-linked financing in the public or Rule 144A capital markets
(any such financing, a "NEW FINANCING") at least 80% of the proceeds of which
are used to effect a Physical Settlement, NationsBanc Montgomery Securities LLC,
an affiliate of the Purchaser, shall have the opportunity (but shall be under no
obligation) to participate in such New Financing as exclusive agent or exclusive
underwriter or as a bookrunning manager. The Companies agree that if at any time
prior to the first anniversary hereof the Companies shall execute a New
Financing less than 80% of the proceeds of which are used to effect a Physical
Settlement, the Companies shall use their best efforts to ensure that
NationsBanc Montgomery Securities LLC shall have the opportunity (but be under
no obligation) to participate as an agent or underwriter in such New Financing
with a percentage of the economics of such New Financing at least equal to the
percentage of the proceeds of such New Financing used to effect a Physical
Settlement), in each case for customary compensation.
8. FEES AND EXPENSES OF COUNSEL TO PURCHASER. The Companies agree to
pay all reasonable fees and expenses of counsel to the Purchaser (including all
associated legal bills, past, present or future)
<PAGE>
incurred in connection with (i) the preparation and negotiation of the
Assignment Agreement, the First Amendment, the Second Amendment and this
Amendment and (ii) all other matters arising out of or in connection with the
Agreements and the transactions contemplated thereby and hereby, other than
the preparation and negotiation of the Purchase Agreement and the Adjustment
Agreement and the closing thereunder on February 26, 1998.
9. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreements.
10. AGREEMENTS IN FULL FORCE AND EFFECT. The Agreements (as amended by
this Amendment) are hereby ratified and reaffirmed in their entirety and hereby
declared to be in full force and effect.
11. COUNTERPARTS. This Amendment may be executed in several
counterparts, all of which shall be identical, and all of which counterparts
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
NATIONSBANC MORTGAGE CAPITAL
CORPORATION
By: /s/ Don Benningfield
------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ William W. Evans III
-------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By: /s/ William W. Evans III
-------------------------
Name:
Title:
<PAGE>
Exhibit 99.5
FOURTH AMENDMENT TO AGREEMENTS
THIS FOURTH AMENDMENT TO AGREEMENTS (this "AMENDMENT") is made as of
the 4th day of January, 1999, by and among Patriot American Hospitality, Inc.,
Wyndham International, Inc. (together, the "COMPANIES") and NationsBanc Mortgage
Capital Corporation (the "PURCHASER").
WHEREAS, NMS Services, Inc. (the "ORIGINAL PURCHASER") and the
Companies entered into (i) a Purchase Agreement dated as of February 26, 1998
(the "PURCHASE AGREEMENT") pursuant to which the Original Purchaser purchased
4,900,000 shares (the "PURCHASE SHARES") of common stock, par value $.01 per
share, of each of the Companies, which shares of common stock are paired and
trade as a unit consisting of one share of common stock of each Company (the
"PAIRED SHARES"), and (ii) an ISDA Master Agreement (including a Schedule
thereto) and a Purchase Price Adjustment Mechanism, each dated as of February
26, 1998 (collectively, the "ADJUSTMENT AGREEMENT"), pursuant to which the
Original Purchaser and the Companies may make certain payments or deliveries of
Paired Shares as adjustments to the purchase price for the Purchase Shares;
WHEREAS, the Companies delivered to the Original Purchaser two letters
relating to underwriting matters and tax matters, respectively,
contemporaneously with the execution of the Purchase Agreement and the
Adjustment Agreement (the "LETTERS");
WHEREAS, the Original Purchaser and the Purchaser entered into a
Transfer and Assignment Agreement dated as July 31, 1998 (the "ASSIGNMENT
AGREEMENT,") to which the Companies agreed and consented, pursuant to which the
Original Purchaser transferred and assigned, and the Purchaser received and
assumed, all of the Purchase Shares and all of the Original Purchaser's rights
and obligations under the Purchase Agreement, the Adjustment Agreement and the
Letters;
WHEREAS, the Purchaser and the Companies entered into an Amendment to
Agreements dated as of August 14, 1998 (the "FIRST AMENDMENT"), a Second
Amendment to Agreements dated as of November 23, 1998 (the "SECOND AMENDMENT")
and a Third Amendment to Agreements dated as of December 10, 1998 (the "THIRD
AMENDMENT" and, together with the Purchase Agreement, the Adjustment Agreement,
the Letters, the First Amendment and the Second Amendment, the "AGREEMENTS")
pursuant to which the Purchaser and the Companies effected certain amendments to
the Purchase Agreement and the Adjustment Agreement;
WHEREAS, the parties hereto wish to effect certain further amendments
to the Agreements as set forth herein;
NOW THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. INITIAL STANDSTILL. The Purchaser agrees that, subject to Section 3
hereof, during the period from the date hereof to and including January 31, 1999
(the "INITIAL STANDSTILL PERIOD"), (i) it will not require a settlement pursuant
to Section III of the Adjustment Agreement as a consequence of any existing or
future Price Decline Unwind Event and (ii) it will not sell, assign or otherwise
transfer any interest in any of the Purchase Shares or any Collateral Shares or
sell, assign or otherwise transfer any interest in any of its rights under the
Agreements (as amended by this Amendment), except in each case for transfers to
affiliates of the Purchaser as permitted by the Agreements.
2. EXTENDED STANDSTILL. (a) If (i) on or prior to January 31, 1999, the
Companies have entered into an Acceptable Transaction Agreement (as defined
below) and (ii) on January 31, 1999, there is no Default or Event of Default
(each as defined in the Credit Agreement), other than such a Default or Event
<PAGE>
of Default that, in the reasonable judgment of the Purchaser, is not material
or such a Default or Event of Default that has been waived in writing by the
lenders under the Credit Agreement (any such Default or Event of Default that
has been so waived, a "WAIVED DEFAULT"), then (A) the Purchaser agrees that,
subject to Section 3 hereof, during the period from the date hereof to and
including the earlier of (x) June 30, 1999 and (y) the date of consummation
of the transaction contemplated by such Acceptable Transaction Agreement
(such date, the "EXTENDED STANDSTILL TERMINATION DATE", and such period, the
"EXTENDED STANDSTILL PERIOD"), (1) it will not require a settlement pursuant
to Section III of the Adjustment Agreement as a consequence of any existing
or future Price Decline Unwind Event and (2) it will not sell, assign or
otherwise transfer any interest in any of the Purchase Shares or any
Collateral Shares or sell, assign or otherwise transfer any interest in any
of its rights under the Agreements (as amended by this Amendment), except in
each case for transfers to affiliates of the Purchaser as permitted by the
Agreements, (B) the definition of "Interim Settlement Dates" in Section II of
the Adjustment Agreement shall be modified to read in its entirety as
follows: "May 26, 1998, August 26, 1998, November 26, 1998, February 26, 1999
and May 26, 1999, subject to adjustment in accordance with the Modified
Following Business Day convention" and (C) clause (iii) of Section 6 of the
First Amendment shall be modified to read in its entirety as follows: "the
Extended Standstill Termination Date".
(b) "ACCEPTABLE TRANSACTION AGREEMENT" means a definitive agreement,
subject only to customary closing conditions reasonably satisfactory to the
Purchaser, with one or more parties (the "OTHER PARTIES") for a transaction that
provides for a Physical Settlement of the entire Transaction on or prior to June
30, 1999 in a manner reasonably satisfactory to the Purchaser.
3. STANDSTILL TERMINATION. The agreements of the Purchaser set forth in
Sections 1 and 2 of this Amendment shall terminate and have no further force or
effect, and the Initial Standstill Period or the Extended Standstill Period, as
the case may be, shall terminate, upon the occurrence of any of the following:
(i) the Daily Average Price on the Relevant Exchange of the Paired Shares for
any Exchange Trading Day during the Initial Standstill Period or the Extended
Standstill Period, as the case may be, other than a day on which a Market
Disruption Event has occurred, is equal to or less than $5.00, (ii) the
counterparty to any other "forward equity" transaction similar to the
Transaction to which the Companies are party (any such counterparty, a "FET
COUNTERPARTY") shall sell any Paired Shares held by such FET Counterparty in
connection with such transaction, (iii) an Acceptable Transaction Agreement
entered into by the Companies shall be terminated or the Companies or any Other
Parties shall have publicly announced an intention not to proceed with the
transaction contemplated by such an Acceptable Transaction Agreement, unless at
the time of such termination or announcement the Companies shall have entered
into another Acceptable Transaction Agreement, (iv) any Default (as defined in
the Agreements), (v) the Maturity Date or (vi) if on January 31, 1999 a Waived
Default existed, the related waiver of the lenders under the Credit Agreement
terminates, is rescinded or otherwise ceases to be effective and such Waived
Default is continuing at the time such waiver terminates, is rescinded or
otherwise ceases to be effective.
4. SPREAD. (a) Notwithstanding the Agreements, during the Initial
Standstill Period and, if there is an Extended Standstill Period, the Extended
Standstill Period, the Spread shall be 5.00% per annum.
(b) Notwithstanding the Agreements or Section 4(a) of this Amendment,
the Spread shall increase by 0.25% (up to a maximum increase of 2.00%) on the
16th calendar day, and on every 7th calendar day thereafter, on which (i) any
Registration Statement contemplated by the Agreements is not effective or is the
subject of a stop order by the SEC, (ii) a Black-Out Period is in effect or
(iii) the Registration Statements or the Prospectus for any other reason is not
available for sales or resales of Paired Shares by the Purchaser (or any
affiliate of the Purchaser designated by the Purchaser). Such calendar days
shall be counted in the aggregate and need not be consecutive.
5. UNWIND FEE. Notwithstanding the Agreements, the Maturity Placement
Fee shall be 2.00%.
<PAGE>
The first sentence of Section III.E.7 is hereby amended to read in its
entirety as follows: "In the event of Physical Settlement, Stock Settlement
or Net Stock Settlement pursuant to Section III.B., III.C. or III.D., the
Companies shall pay on Day S an unwind fee to an affiliate of the Purchaser
designated by the Purchaser calculated as: Settlement Amount x Maturity
Placement Fee."
6. MOST FAVORED COUNTERPARTY. The Companies hereby agree that if the
Companies grant to any FET Counterparty rights in connection with the settlement
of the "forward equity" transaction among the Companies and such FET
Counterparty that are, in the opinion of the Purchaser, more favorable to such
FET Counterparty than the rights afforded to the Purchaser by the Agreements (as
amended by this Amendment) in connection with the settlement of the Transaction,
then upon written notice by the Purchaser to the Companies, the Purchaser shall
have the benefit of corresponding rights with respect to the Transaction. The
Companies shall enter into such amendments to the Agreements as may be
reasonably requested by the Purchaser to evidence the effectiveness of any such
rights; provided that it shall not be necessary to enter into any such amendment
for such rights to be effective. Until the Transaction has been settled in full,
the Companies agree to provide to the Purchaser copies of any agreements that
the Companies enter into with any FET Counterparty or its affiliates relating to
the settlement of the "forward equity" transaction among the Companies and such
FET Counterparty.
7. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreements.
8. AGREEMENTS IN FULL FORCE AND EFFECT. The Agreements (as amended by
this Amendment) are hereby ratified and reaffirmed in their entirety and hereby
declared to be in full force and effect.
9. COUNTERPARTS. This Amendment may be executed in several
counterparts, all of which shall be identical, and all of which counterparts
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
NATIONSBANC MORTGAGE CAPITAL
CORPORATION
By: /s/ Don Benningfield
-------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ William W. Evans III
-------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By: /s/ William W. Evans III
-------------------------
Name:
Title:
<PAGE>
Exhibit 99.6
FIFTH AMENDMENT TO AGREEMENTS
THIS FIFTH AMENDMENT TO AGREEMENTS (this "AMENDMENT") is made as of the
1st day of February, 1999, by and among Patriot American Hospitality, Inc.,
Wyndham International, Inc. (together, the "COMPANIES") and NationsBanc Mortgage
Capital Corporation (the "PURCHASER").
WHEREAS, NMS Services, Inc. (the "ORIGINAL PURCHASER") and the
Companies entered into (i) a Purchase Agreement dated as of February 26, 1998
(the "PURCHASE AGREEMENT") pursuant to which the Original Purchaser purchased
4,900,000 shares (the "PURCHASE SHARES") of common stock, par value $.01 per
share, of each of the Companies, which shares of common stock are paired and
trade as a unit consisting of one share of common stock of each Company (the
"PAIRED SHARES"), and (ii) an ISDA Master Agreement (including a Schedule
thereto) and a Purchase Price Adjustment Mechanism, each dated as of February
26, 1998 (collectively, the "ADJUSTMENT AGREEMENT"), pursuant to which the
Original Purchaser and the Companies may make certain payments or deliveries of
Paired Shares as adjustments to the purchase price for the Purchase Shares;
WHEREAS, the Companies delivered to the Original Purchaser two letters
relating to underwriting matters and tax matters, respectively,
contemporaneously with the execution of the Purchase Agreement and the
Adjustment Agreement (the "LETTERS");
WHEREAS, the Original Purchaser and the Purchaser entered into a
Transfer and Assignment Agreement dated as July 31, 1998 (the "ASSIGNMENT
AGREEMENT,") to which the Companies agreed and consented, pursuant to which the
Original Purchaser transferred and assigned, and the Purchaser received and
assumed, all of the Purchase Shares and all of the Original Purchaser's rights
and obligations under the Purchase Agreement, the Adjustment Agreement and the
Letters;
WHEREAS, the Purchaser and the Companies entered into an Amendment to
Agreements dated as of August 14, 1998 (the "FIRST AMENDMENT"), a Second
Amendment to Agreements dated as of November 23, 1998 (the "SECOND AMENDMENT"),
a Third Amendment to Agreements dated as of December 10, 1998 (the "THIRD
AMENDMENT") and a Fourth Amendment to Agreements dated as of January 4, 1998
(the "FOURTH AMENDMENT" and, together with the Purchase Agreement, the
Adjustment Agreement, the Letters, the First Amendment, the Second Amendment,
the Third Amendment and the Fourth Amendment, the "AGREEMENTS") pursuant to
which the Purchaser and the Companies effected certain amendments to the
Purchase Agreement and the Adjustment Agreement;
WHEREAS, the parties hereto wish to effect certain further amendments
to the Agreements as set forth herein;
NOW THEREFORE, in consideration of the foregoing, the parties hereto
agree as follows:
1. INITIAL STANDSTILL. Sections 1, 2 and 3 of the Fourth Amendment are
hereby amended by substituting "February 15" for "January 31" wherever "January
31" appears in such Sections.
2. STANDSTILL TERMINATION. Section 3 of the Fourth Amendment is hereby
amended by substituting "$4.50" for "$5.00" in the sixth line thereof.
3. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined shall have the meanings set forth in the Agreements.
4. AGREEMENTS IN FULL FORCE AND EFFECT. The Agreements (as amended by
this Amendment) are
<PAGE>
hereby ratified and reaffirmed in their entirety and hereby declared to be in
full force and effect.
5. COUNTERPARTS. This Amendment may be executed in several
counterparts, all of which shall be identical, and all of which counterparts
together shall constitute one and the same instrument.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
NATIONSBANC MORTGAGE CAPITAL
CORPORATION
By: /s/ Don Benningfield
-----------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ William W. Evans III
-----------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By: /s/ William W. Evans III
-----------------------------------
Name:
Title:
<PAGE>
Exhibit 99.7
December 14, 1998
Patriot American Hospitality, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Attn.: William W. Evans III
Wyndham International, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Attn.: Leslie Ng
Ladies and Gentlemen:
Reference is made to that certain Forward Stock Contract, dated
December 31, 1997 (the "Forward Agreement") between Patriot American
Hospitality, Inc. (the "REIT") and Patriot American Hospitality Operating
Company (the "OPCO") and Union Bank of Switzerland, London Branch ("UBS"), as
such Forward Agreement may have been amended through the date hereof (including
the letter agreements dated August 14, 1998, and September 11, 1998, between the
REIT and Wyndham International, Inc. (as successor to the OPCO, each a "Company"
and collectively, the "Companies") and UBS AG, London Branch ("UBS-LB"), as
successor to UBS acting through its agent Warburg Dillon Read LLC and that
certain Purchase Agreement dated December 31, 1997 by and among Union Bank of
Switzerland and the Companies. Capitalized terms not otherwise defined herein
shall have the respective meanings ascribed to them under the Forward Agreement,
as amended.
In consideration of the mutual covenants contained herein and in the
Forward Agreement, the parties hereto agree as follows:
Section 1. PRELIMINARY STANDSTILL PERIOD AND INITIAL STANDSTILL PERIOD.
UBS-LB agrees that from December 8, 1998 through December 18, 1998 (or such
earlier date as the Initial Standstill Period may begin under Section 6 herein)
(such period, the "Preliminary Standstill Period"), subject to the terms and
conditions set forth below, UBS-LB will not require any settlement under the
Forward Agreement and will not sell, assign or otherwise transfer any
<PAGE>
interest in any of the Underlying Shares or shares delivered as collateral
under the Forward Agreement. UBS-LB further agrees that from the date on
which the provisions of this letter agreement become effective in accordance
with Section 6 hereof through January 4, 1999 (such period, the "Initial
Standstill Period"), subject to the other terms and conditions set forth
below, UBS-LB will not require any settlement under the Forward Agreement and
will not sell, assign or otherwise transfer any interest in any of the
Underlying Shares or shares delivered as collateral under the Forward
Agreement.
Section 2. APPLICATION OF COLLATERAL AND PROCEEDS. (a) The cash
collateral held by UBS-LB on the date hereof and all net proceeds received by
UBS-LB through the date hereof in connection with sales of Paired Shares in
settlement of the Forward Contract will be used on such date to "buy down" the
Forward Price. Accordingly, the Forward Price will be reduced on such date by
$3.7240 (cash collateral of $8,252,274 plus net sales proceeds through the date
hereof of $3,850,569, the sum divided by 3,250,000, the number of Underlying
Shares), so that the Forward Price as of December 10, 1998 would be reduced from
$15.4933 to $11.7693, representing a Settlement Amount of $38,250,225. (On
December 14, 1998 and December 15, 1998, UBS-LB sold additional Paired Shares
generating net sales proceeds of $1,726,773. $1,007,063 of such amount will be
applied in the manner contemplated by the letter agreement of even date herewith
relating to the escrow described in Section 4(a) and Section 6 hereunder. The
balance, which is $719,710, shall be used to "buy down" the Forward Price under
this Section 2 so that the Forward Price as of December 10, 1998 will be further
reduced by $0.2214 ($719,710 divided by 3,250,000) from $11.7693 to $11.5479,
representing a Settlement Amount of $37,530,515 (all Forward Prices and
Settlement Amounts being approximate due to rounding).) The parties acknowledge
that the application of cash collateral and net proceeds as provided for in this
paragraph, and any similar application of cash collateral which has occurred or
which may hereafter occur, shall constitute interim settlement payments under
the Forward Agreement.
(b) The parties acknowledge that all sales of Paired Shares by UBS-LB
prior to the date hereof have not occurred during an Unwind Period.
Section 3. AMENDMENTS TO THE FORWARD AGREEMENT.
(a) The definition of "Unwind Period" is deleted in its entirety and
replaced as follows: "In the event of Stock Settlement or Net Stock Settlement,
the period beginning on Day S and ending on the date that UBS has completed the
sale of all Unwind Shares".
(b) The definition of "Stock Settlement Unwind Price" is deleted in its
entirety and replaced as follows: "The weighted average net sales price per unit
of Paired Shares for all Paired Shares sold by UBS-LB during the Unwind Period."
(c) [This subsection intentionally left blank]
(d) The second sentence of the last paragraph of Section III.A.1. shall
be deleted in its entirety and replaced as follows: "The number of Settlement
Shares deemed to have already been settled shall equal the Settlement Shares
times a fraction, the numerator of which shall be the total number of Unwind
Shares sold by UBS until and including the notice day, and the denominator of
which shall be the total number of Unwind Shares (for this purpose, Unwind
2
<PAGE>
Shares to be calculated as if the notice day was the last day of the Unwind
Period)."
(e) A definition of "Unwind Shares" is hereby inserted having the
following text: "Stock Settlement Shares (in the case of a Stock Settlement) or
Underlying Shares and Net Stock Settlement Shares (in the case of Net Stock
Settlement)."
(f) The definition of "Spread" shall be deleted and replaced by the
following: "4.00% per annum."
(g) The Forward Agreement is hereby deemed amended so that each of (i)
the financial reporting covenants in Section 8.01 and (ii) the negative
covenants by the Companies in the Credit Agreement and Term Loan Agreement dated
as of July 18, 1997 (and Amended and Restated as of December 16, 1997 and
further Amended and Restated as of June 2, 1998) by and among certain Patriot
entities as borrowers, various lenders named therein and Chase Manhattan Bank as
Administrative Agent (the "Credit Agreement"), together with any relevant
definitions or other ancillary provisions, are incorporated in full into the
Forward Agreement, except that such covenants are modified, MUTATIS MUTANDIS, to
be made in favor of UBS-LB and to otherwise conform to the Forward Agreement.
For the purposes of Section 8 of this letter agreement, a waiver under the
Credit Agreement of any breach of the covenants described in clauses (i) and
(ii) of this Subsection (g) shall not be contstrued as or interpreted to be a
waiver of such breach under the Forward Agreement.
(h) The definition of "Maturity Placement Fee" shall be amended by
deleting the term "0.50%" and replacing it with "0.00%."
Section 4. COVENANTS OF THE COMPANIES. The Companies covenant and agree
with UBS-LB as follows, which covenants and agreements shall be deemed
incorporated into the Forward Agreement as if set forth in full therein:
(a) In consideration of UBS-LB's agreements hereunder, the Companies
shall, in addition to other agreements made by the Companies hereunder, pay in
cash to Warburg Dillon Read LLC, as agent for UBS-LB, an amount equal to
$1,007,063 (which equals 2.00% of the $50,353,174 gross UBS-LB notional amount
as of December 10, 1998), such amount to be held in escrow so that if this
letter agreement does not become effective in accordance with the provisions of
Section 6 hereof, such amount shall be returned to the Companies in full.
(b) If (i) any of the registration statements covering the Underlying
Shares or any shares delivered as collateral under the Forward Agreement are not
usable for more than 15 calendar days, or (ii) a Prospectus Supplement is not
delivered within 2 Exchange Trading Days of a request therefor, then the Spread
applicable under the Forward Agreement shall automatically increase by .25% for
each additional week (or portion thereof) after such 15 day period during which
such registration statement remains unusable or such 2 day period, as the case
may be; provided that the increase in the Spread pursuant to this paragraph
shall in no event exceed 2.00%. For the avoidance of doubt, such penalties shall
not be applicable during the Preliminary Standstill Period, the Initial
Standstill Period or the Standstill Period, until any of
3
<PAGE>
such periods is terminated pursuant to the provisions of Section 8 hereof.
(c) The Companies shall provide copies to UBS-LB of any amendments or
agreements relating to the Companies' other forward equity transactions. Whether
or not the obligation described in the preceding sentence is complied with, if
UBS-LB at any time determines in its discretion that the unwind, collateral or
settlement provisions applicable to any of the Companies' other forward equity
transactions are or have become more favorable to the counterparties to such
transaction than such provisions contained in the Forward Agreement (as modified
hereby) are to UBS-LB, such provisions in the Forward Agreement shall be
promptly modified so that they are at least as favorable as such other
provisions and, until such modification is effected, UBS-LB, upon written notice
to the Companies, shall be entitled to operate as if such modification were in
effect.
(d) The Companies shall use their reasonable efforts to arrange
additional equity investments in the Companies and the proceeds of any such new
equity investment shall first be applied to settle in full the Forward
Agreement. Such obligation shall be subject to the terms and conditions of the
Credit Agreement; provided, however, that in the event that such obligation is
not complied with as a result of the terms and conditions of the Credit
Agreement, then the Initial Standstill Period (or the Standstill Period, as the
case may be) shall be terminated.
(e) If a "Change in Control" (as defined in the Credit Agreement) shall
occur, then concurrently with such occurrence, the Initial Standstill Period or
the Standstill Period shall terminate and, subject to the terms and conditions
of the Credit Agreement, the Company shall effect a complete Physical Settlement
of the Forward Agreement.
(f) The Companies agree that they will not assert any claim with
respect to any sales of Paired Shares effected by UBS-LB prior to the date
hereof and that such sales were not subject to the Unwind Period.
(g) Nothing contained herein shall in any way limit the Companies'
obligation to provide cash collateral or Interim Settlement Shares in accordance
with the terms of the Forward Agreement as modified by the letter agreements
referenced above.
(h) The Companies shall provide copies to UBS-LB of any amendments or
agreements relating to the Credit Agreement.
Section 5. ADDITIONAL AGREEMENTS.
(a) The Companies and UBS-LB agree that, notwithstanding anything to
the contrary in the Forward Agreement, UBS-LB shall not be subject to any
limitation on the number of Paired Shares it may sell on any day during an
Unwind Period; provided, however, that any settlement effected by the sale of
Paired Shares shall be conducted in a commercially reasonable manner (which may
require sales over a period of more than 1 day).
(b) The Companies and UBS-LB agree that the standstill agreement
provided for
4
<PAGE>
herein does not constitute a waiver of any event or condition or a limitation
on any of the parties' rights or remedies and that, upon the termination of
the Preliminary Standstill Period, the Initial Standstill Period or the
Standstill Period, as the case may be, the parties shall be entitled to take
action with respect to any such event or condition and to pursue any or all
of their respective rights and remedies.
(c) Any obligations of the Companies' pursuant to this letter agreement
that are "subject to the terms and conditions of the Credit Agreement" shall be
a reference to the terms and conditions as they exist on the date hereof, and
any subsequent restatements or amendments to such Credit Agreement shall not be
applicable, unless the effect of such restatements or amendments is to remove
the Companies' inability to comply with such obligation.
Section 6. CONDITIONS TO STANDSTILL. Except for the Preliminary
Standstill Period as described in Section 1 hereof and the "buy-down" provisions
contained in Section 2 hereof, which shall be effective (subject to the
conditions set forth in Section 1 and Section 4(a) hereof) upon execution of
this letter agreement by the parties hereto, this letter agreement and all of
the provisions and agreements contained herein (including the Initial Standstill
Period) shall be effective on the date that is the earlier of (i) the date that
the Companies shall have entered into co-extensive standstill agreements in form
and substance reasonably satisfactory to UBS with each of the counterparties to
the Companies' other forward equity transactions or (ii) the date that UBS-LB
(in its sole discretion) notifies the Companies in writing that this letter
agreement has become effective; provided, however, that such date shall not
occur after December 18, 1998. If this letter agreement does not become
effective on or before such date in accordance with the provisions of this
Section 6, then the amount described in Section 4(a) shall be returned to the
Companies in full.
Section 7. EXTENSION OF THE INITIAL STANDSTILL PERIOD. If on or prior
to January 4, 1999, the Companies enter into a letter of intent with one or more
parties (the "Other Parties") which provides that there will be a complete
Physical Settlement of the Forward Agreement or equivalent transaction with
funds provided by the Other Parties not later than the closing of the
transaction contemplated by such agreement with the Other Parties, then the
Initial Standstill Period shall be extended until the earlier of the closing or
the termination of such transaction, but in no event later than January 31, 1999
(such period, the "Standstill Period"). Any determination as to whether the
Companies are entitled to an extension of the Initial Standstill Period as
contemplated by this Section 7 shall be made by UBS-LB, which determination
shall not be unreasonable.
Section 8. TERMINATION OF THE STANDSTILL PERIOD. The Initial Standstill
Period or the Standstill Period shall terminate immediately (i) if the Paired
Share price (calculated as provided under the Forward Agreement) falls below
$5.00 per Paired Share, (ii) upon the occurrence of a Mandatory Unwind Event
within the meaning of clause (ii) of the definition thereof under the Forward
Agreement, a Default under the Credit Agreement or a material default under the
Forward Agreement which remains uncured after notice thereof (including without
limitation any of the covenants and agreements of the Companies that are
provided herein) or (iii) if any of the counterparties to the Companies' other
forward equity transactions sells or agrees to sell any
5
<PAGE>
Paired Shares.
6
<PAGE>
For the avoidance of doubt, (i) this agreement shall be applicable to
settlements that occur on or after the date hereof and (ii) nothing in this
letter agreement shall relieve the Companies of any of its obligations under the
Forward Agreement and the Purchase Agreement, including without limitation
paragraph 4 of the letter agreement dated September 11, 1998 (pursuant to which
the Companies agreed to effect a Physical Settlement of the Transaction
simultaneously with the consummation of the sale of certain property interests
as described therein).
This letter agreement shall be governed by and construed in accordance
with laws of the State of New York without reference to choice of law doctrine.
Sincerely,
UBS AG, London Branch
By:/s/ Robert Morgan By:/S/ Gerard Lionetti
-------------------------------- -------------------------------
Name: Name:
Title: Title:
Date: Date:
AGREED TO AND ACCEPTED
Patriot American Hospitality, Inc.
By:/s/ William W. Evans III
-------------------------------
Name:
Title:
Date:
Wyndham International, Inc.
By:/s/ William W. Evans III
-------------------------------
Name:
Title:
Date:
7
<PAGE>
Exhibit 99.8
January 29, 1999
Patriot American Hospitality, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Attn.: William W. Evans III
Wyndham International, Inc.
1950 Stemmons Freeway, Suite 6001
Dallas, Texas 75207
Attn.: Leslie Ng
Ladies and Gentlemen:
Reference is made to (i) that certain letter agreement (the "Standstill
Agreement") dated December 14, 1998 between Patriot American Hospitality, Inc.
and Wyndham International, Inc. (collectively, the "Companies") and UBS AG,
London Branch (acting through its agent Warburg Dillon Read LLC, "UBS-LB"), (ii)
that certain letter agreement dated December 22, 1998 between the Companies and
UBS-LB (the "Initial Standstill Period Implementation Letter"), (iii) that
certain letter agreement dated January 4, 1999 delivered to the Companies by
UBS-LB (the "Standstill Period Acknowledgment Letter") and (iv) the Forward
Agreement and the Purchase Agreement (each as defined in the Standstill
Agreement). Capitalized terms not otherwise defined herein shall have the
respective meanings ascribed to them under the Forward Agreement or the
Standstill Agreement, as the context shall require.
In consideration of the mutual covenants contained herein and in the agreements
referred to above, the parties hereto agree as follows:
1. Subject to the satisfaction of the Standstill Extension Conditions as set
forth and defined in paragraph 2 below:
a) Section 7 of the Standstill Agreement (and the Standstill Acknowledgment
Letter) shall be amended such that the term "January 31, 1999" shall be replaced
by the term "February 15, 1999", so that the Standstill Period is hereby
extended until the earlier of the closing or the termination of the transaction
contemplated by the letter of intent filed as Exhibit 99.1 to the Companies'
Current Report on Form 8-K dated December 16, 1998, but in no event later than
February 15, 1999 (the "Standstill Period Extension"); and
<PAGE>
b) Section 8 of the Standstill Agreement shall be amended such that the term
"$5.00" shall be replaced by the term "$4.50".
2. The Standstill Period Extension contemplated herein shall not be effective
unless on or before February 1, 1999, all of the following conditions are
satisfied (the "Standstill Extension Conditions"):
a) Both NationsBank and PaineWebber, in their respective capacities as
counterparties to the Companies with respect to the Companies' other forward
equity transactions, shall have executed standstill agreements (or amendments
thereto) in form and substance reasonably satisfactory to UBS covering the
period beginning on February 1, 1999 and ending on February 15, 1999 (both dates
inclusive);
b) The lenders have consented to the Amendment and Restatement of the
$2,700,000,000 Senior Credit Facilities in accordance therewith, and such
Amendment and Restatement (including without limitation the amended maturity
dates and the amended waivers therein) is therefore in full force and effect,
all as contemplated by the Summary of Terms and Conditions contained in that
certain Patriot American Hospitality, Inc. Confidential Amendment Memorandum
dated January 1999 and prepared by Chase Securities, Inc. (the "Chase
Confidential Amendment Memorandum"); and
c) The Companies shall deliver Paired Shares to UBS-LB as necessary so that the
value of all of the Paired Shares held as collateral as of Wednesday, January
27, 1999 (as measured by the closing price on such date) shall be no less than
125% of the Settlement Amount on such date.
3. For the avoidance of doubt, even if the Standstill Extension condition
described in paragraph 2(a) above is satisfied, the Standstill Period will be
terminated under Section 8 of the Standstill Agreement if any of the
counterparties to the Companies' other forward equity transactions sells or
agrees to sell any Paired Shares.
4. For the avoidance of doubt, the Standstill Period shall terminate immediately
if any of the events in clause (ii) under "Waivers and Amendments" in the Chase
Confidential Amendment Memorandum result in the termination of the waiver
contemplated therein.
5. The Companies acknowledge that they will continue to deliver Paired Shares to
UBS-LB as required under the Forward Agreement so that the value of all of the
Paired Shares held as collateral on any Interim Settlement Date (as measured by
the closing price on such date) shall be no less than 125% of the Settlement
Amount on such date. For this purpose, the Companies agree that every Wednesday
shall be an Interim Settlement Date, and that the Companies shall deliver the
requisite number of Paired Shares on the Friday immediately following such
Wednesday. The Companies shall cure any discrepancy no later than the Business
Day immediately following receipt of written notification of such discrepancy by
UBS-LB. Failure to meet any of the requirements of this paragraph 5 shall result
in an immediate termination of the Standstill Period.
2
<PAGE>
6. At any time that the Standstill Period or a successor standstill period is
not in effect (whether by termination or by expiration or otherwise), the
Companies will pay a penalty for each Exchange Trading Day that UBS-LB is
prevented from selling Paired Shares either because a black-out has been imposed
by the Companies or because such Paired Shares are not the subject of an
effective registration statement (such penalty, a "Daily Black-Out Penalty" and
any such Exchange Trading Day, a "Penalty Day"). The amount of such Daily
Black-Out Penalty shall vary, depending the number of consecutive Exchange
Trading Days that such Daily Black-Out Penalty has been applicable. The amount
of the Daily Black-Out Penalty shall be (i) zero for each of the first three
consecutive Penalty Days, (ii) $15,000 for each of the next 10 consecutive
Penalty Days and (iii) $25,000 for each consecutive Penalty Day thereafter. The
amount of any Daily Black-Out Penalty shall be due within 2 Business Days after
written notification by UBS-LB of any amounts that are due (the timing of such
notification to be any time at UBS-LB's sole discretion on or after the Penalty
Day or Penalty Days to which such amount or amounts relate).
3
<PAGE>
This letter agreement shall be governed by and construed in accordance
with laws of the State of New York without reference to choice of law doctrine.
Sincerely,
UBS AG, London Branch
By:/s/ Robert Morgan By:/s/ Gerard Lionetti
------------------------- -------------------------------
Name: Name:
Title: Title:
Date: Date:
AGREED TO AND ACCEPTED
Patriot American Hospitality, Inc.
By:/s/ William W. Evans III
-------------------------
Name:
Title:
Date:
Wyndham International, Inc.
By:/s/ William W. Evans III
-------------------------
Name:
Title:
Date:
4
