UBS AG
London Branch
000 Xxxxxxxxx Xxxxxx
Xxxxxx XX0X 2 RH
September 11, 1998
Patriot American Hospitality, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxx X. Xxxxx III
Wyndham International, Inc.
0000 Xxxxxxxx Xxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx Xx
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 agreement dated
August 14, 1998, between the REIT and Wyndham International, Inc. (as successor
to the OPCO, each a "Company" and collectively, the "Companies") and Union Bank
AG, London Branch ("UB-LB"), as successor to UBS acting through its agent
Warburg Dillon Read, LLC.
This letter agreement between the Companies and UB-LB modifies and amends, in
part, certain of the terms and conditions in the Forward Agreement. Capitalized
terms not otherwise defined herein shall have the meanings ascribed to them
under the Forward Agreement, as amended.
As of August 26, 1998, the average closing price of the Paired Shares for two
consecutive Exchange Trading Days was equal to or below the Mandatory Unwind
Threshold and UB-LB in providing notice to the Companies that a Mandatory Unwind
Event has occurred. However, the amendments to the Forward Agreement contained
herein amend the Mandatory Unwind Threshold retroactively.
Notwithstanding the terms and conditions of the Forward Agreement, the Companies
and UB- LB agree as follows:
1. In the definition of "Mandatory Unwind Thresholds" that is contained within
Section II of the Forward Agreement, the term "$16.00" shall be replaced by the
term "$11.00". No Mandatory Unwind Event under clause (i) of the definition of
Mandatory Unwind Event shall
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be deemed to have occurred or be continuing under the Forward Agreement, as
hereby amended.
2. The cash collateral currently held by UB-LB in the amount of $45,627,725 will
be used on the date hereof to "buy down" the Forward Price. Accordingly, the
Forward Price will be reduced on the date hereof by $14.0393 ($45,627,725
divided by 3,250,000, the number of Underlying Shares), and the cash collateral
of $45,627,725 will be applied to fund the buy down on the date hereof.
3. The Companies covenant that they will give telephone notice (confirmed in
writing) at least fifteen (15) business days prior to the consummation of any
transaction (including without limitation an open market repurchase of Paired
Shares) that would result in UB-LB or any of its affiliates owning in excess of
5% of the Paired Shares (any such ownership interest an "Ownership Interest").
UB-LB agrees that such notice requirement shall be deemed to have been satisfied
by the public announcement of a transaction by the Companies, but only if a copy
of such announcement is delivered to UB-LB. UB-LB represents on the date hereof
that the Ownership Interest consists of 3,250,000 Paired Shares owned by UB-LB.
UB-LB covenants that it will notify the Companies in writing within two (2)
business days after the occurrence of any increase in the Ownership Interest,
except with respect to any increase arising from the operating of the Forward
Agreement (including without limitation, the delivery of Interim Settlement
Shares or Cash Collateral Shares). Failure to comply with this covenant shall
constitute a Mandatory Unwind Event under clause (ii) of "Mandatory Unwind
Event" in Section VI of the Forward Agreement. In making calculations under this
paragraph, the Companies shall be entitled to rely on share information provided
by UB-LB under this paragraph and will not be in breach of this covenant if any
share information so provided by UB-LB is inaccurate or incomplete.
4. The Companies covenant and agree that simultaneously with the consummation of
the sale of certain property interests as set forth on Exhibit A hereto (the
"Assets"), the Companies will effect a Physical Settlement under the Forward
Contract with respect to 100% of the Underlying Shares. The Companies represent
that they have granted no lien, pledge or security interest in the proceeds of
the sale of the Assets. Failure to comply with this covenant shall constitute a
Mandatory Unwind Event under clause (ii) of "Mandatory Unwind Event" in Section
VI of the Forward Agreement.
5. The Companies represent on the date hereof that no early settlement of any
Other Transaction has occurred or is being contemplated, and that no Financial
Covenant Default or other Event of Default has occurred, all within the meaning
and for the purposes of clause (ii) of "Mandatory Unwind Event" in Section VI of
the Forward Agreement.
For the avoidance of doubt, the failure of the Companies to deliver to UB-LB on
or before September 30, 1998, an effective registration statement as
contemplated by Section III.A.4. of the Forward Agreement shall constitute a
Mandatory Unwind Event (regardless of when the Companies may have filed such a
registration statement with the SEC), and nothing in this letter agreement shall
be construed to the contrary.
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Sincerely,
UBS AG, London Branch
By: /s/
-----------------------------------------
Name:
Title:
Date:
AGREED TO AND ACCEPTED
Patriot American Hospitality, Inc.
By: /s/
-----------------------------------------
Name:
Title:
Date:
Wyndham International, Inc.
By: /s/
-----------------------------------------
Name:
Title:
Date:
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