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EXHIBIT 6
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as of
this ___ day of June, 1999, by and among (i) Xxxxxx X. Xxx Equity Fund IV, L.P.,
Xxxxxx X. Xxx Foreign Fund IV, L.P. and THL-CCI Limited Partnership
(collectively, the "Assignor"), (ii) The Bonnybrook Trust, The Dartmouth Trust
and The Franklin Trust (collectively, the "Assignee"), (iii) Patriot American
Hospitality, Inc., Wyndham International, Inc., Patriot American Hospitality
Partnership, L.P. and Wyndham International Operating Partnership, L.P.
(collectively, the "Companies"), and (iv) the Investors (the "Original
Investors") named on the signature pages of the Securities Purchase Agreement,
dated as of February 18, 1999, as amended, by and among the Companies and the
Original Investors (the "Securities Purchase Agreement"). Capitalized terms used
and not defined herein shall have the meanings ascribed to such terms in the
Securities Purchase Agreement.
W I T N E S S E T H:
WHEREAS, in accordance with Sections 1.1(b) and 11.3 of the
Securities Purchase Agreement, the Original Investors have the right to assign
their rights and obligations to purchase some or all of the Shares with the
Companies' consent (not to be unreasonably withheld or delayed) to other
persons, provided that no more than 25% in interest in the aggregate in the
rights and obligations to purchase Shares may be assigned to persons other than
Permitted Assignees;
WHEREAS, the Assignor desires to assign to the Assignee its right
and obligation to purchase 22,000 Shares (the "Subject Shares") and the Assignee
desires to accept such assignment and assume such obligation.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged:
1. Assignment and Assumption.
(a) The Assignor hereby assigns its right and obligation to purchase
the Subject Shares under the Securities Purchase Agreement to the Assignee.
(b) The Assignee, for the benefit of the Companies, each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement, hereby accepts the assignment of the Assignor's
right, and assumes its obligation, to purchase the Subject Shares under the
Securities Purchase Agreement and
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agrees to pay at the Closing all amounts due under the Securities Purchase
Agreement in respect of the Subject Shares. The Assignee, for the benefit of the
Companies, each of the Original Investors and any other persons who become
Investors under the Securities Purchase Agreement, hereby makes the
representations and warranties contained in Article IV of the Securities
Purchase Agreement and agrees to perform and discharge all of the covenants,
agreements, terms, provisions, conditions and other obligations to be performed
by an Investor under the Securities Purchase Agreement as if the Assignee were
an Investor originally named in the Securities Purchase Agreement.
Notwithstanding the foregoing, the Assignee agrees that it will not have any
rights under Section 6.12 of the Securities Purchase Agreement.
(c) The Assignee hereby represents and warrants to each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement that (i) the Assignee has received copies of the
Securities Purchase Agreement, the Company Disclosure Letter and the Updated
Company Disclosure Letter and in making its determination to purchase the
Subject Shares and undertake the obligations of an Investor under the Securities
Purchase Agreement has relied solely on the representations and warranties,
covenants and other agreements of the Companies contained therein and not on any
representations, warranties or undertakings by the Assignor or any of the other
Original Investors, (ii) the Assignee currently has, or prior to the Closing
will have, sufficient funds to purchase the Subject Shares as contemplated by
the Securities Purchase Agreement, and (iii) the Assignee's purchase of the
Subject Shares will qualify as a passive investment by the Assignee for purposes
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and accordingly the Assignee is not required to make any filings
under the HSR Act to purchase the Subject Shares.
(d) The Assignee agrees, for the benefit of each of the Original
Investors and any other persons who become Investors under the Securities
Purchase Agreement, (i) to fulfill its obligations under the Securities Purchase
Agreement assumed hereunder, including without limitation those contained in
Article VII, (ii) not to assign without the prior written consent of the
Original Investors any of its rights or obligations under this Assignment and
Assumption and (iii) to be a party to and fulfill its obligations under the
Stockholders' Agreement in the form delivered to the Assignee by the Assignor.
(e) The Assignee agrees, for the benefit of each of the Original
Investors and any other persons who become Investors under the Securities
Purchase Agreement, to pay the purchase price for the Subject Shares into escrow
no later than June 22, 1999, which purchase price shall be held in escrow
pending the Closing and returned to the Assignee if the Closing does not occur
by July 15, 1999.
(f) The Assignee agrees that THL Equity Advisors IV, L.P., in its
capacity Xxxxxx X. Xxx Equity Fund IV, L.P. and Apollo Management IV, L.P.
(collectively, the "Lead Investors") shall have the sole authority to administer
and make
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determinations as to matters arising under the Securities Purchase Agreement and
related documentation and that any determination made by the Lead Investors
under the Securities Purchase Agreement and any related documentation shall be
binding upon the Assignee as if the Assignee had consented thereto, including
without limitation any determination as to whether closing conditions have been
satisfied or waived, any amendments or waivers of provisions of the Securities
Purchase Agreement and any determination or exercise of remedies by the
Investors under the Securities Purchase Agreement.
(g) The Companies acknowledge their consent to the assignment and
assumption effected hereby and agree that (i) the Assignor shall no longer be
obligated to purchase the Subject Shares under the Securities Purchase Agreement
and (ii) the Assignee shall be entitled to rely on the Companies'
representations and warranties, covenants and other agreements under the
Securities Purchase Agreement as if the Assignee were an Investor originally
named in the Securities Purchase Agreement.
(h) The Original Investors other than the Assignor hereby consent to
this Assignment and Assumption and acknowledge that the assignment contemplated
hereby will limit their collective right to make assignments under the
Securities Purchase Agreement.
(i) Notwithstanding anything to the contrary herein, the Assignee
agrees that, upon its payment for the Subject Shares in accordance with the
terms of this Assignment and Assumption and the Securities Purchase Agreement,
it shall only be entitled to receive the Subject Shares from the Companies and
shall not, under any circumstances, be entitled to receive any fees or expenses
pursuant to the Securities Purchase Agreement or otherwise from the Companies,
the Original Investors or any other persons that may become Investors under the
Securities Purchase Agreement. The Companies acknowledge that this Assignment
and Assumption shall in no way affect the Companies' obligation to pay the fees
payable under the Securities Purchase Agreement to the Original Investors as if
the Original Investors had not assigned any portion of the right and obligation
to acquire the Shares.
2. Acknowledgment as to Advisors. (a) The Assignee acknowledges that
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP is representing the Original Investors
as to certain matters the Companies in connection with the transactions
contemplated by the Securities Purchase Agreement and is not acting as counsel
to the Assignee in connection therewith.
(b) The Assignee acknowledges that PricewaterhouseCoopers LLP is
advising the Original Investors as to certain matters in connection with the
transactions contemplated by the Securities Purchase Agreement and is not acting
as advisor to the Assignee in connection therewith.
3. Binding Effect. This Assignment and Assumption shall inure to the
benefit of and be binding on the Assignee, the Assignor, the Companies, the
Original
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Investors and their respective permitted successors and assigns, effective
immediately upon delivery.
4. Governing Law. This Assignment and Assumption shall be governed
and construed in accordance with the laws of the State of New York, without
regard to any applicable principles of conflicts of law.
IN WITNESS WHEREOF, parties hereto have caused this Assignment and
Assumption to be executed as of the date first above written.
ASSIGNOR:
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------
Name:
Title:
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------
Name:
Title:
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ASSIGNEE:
THE BONNYBROOK TRUST
Number of Shares:________________
Federal Tax ID No.:_______________
By: /s/
-------------------------
Name:
Title:
THE DARTMOUTH TRUST
Number of Shares:________________
Federal Tax ID No.:_______________
By: /s/
-------------------------
Name:
Title:
THE FRANKLIN TRUST
Number of Shares:________________
Federal Tax ID No.:_______________
By: /s/
-------------------------
Name:
Title:
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/
-----------------------
Name:
Title:
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WYNDHAM INTERNATIONAL, INC.
By: /s/
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Name:
Title:
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
----------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By: /s/
---------------------------------
Name:
Title:
ORIGINAL INVESTORS:
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General Partner
By: /s/
--------------------------------
Name:
Title:
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APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
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Name:
Title:
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------
Name:
Title:
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------
Name:
Title:
XXXXXX X. XXX CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------
Name:
Title:
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THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
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Name:
Title:
BEACON CAPITAL PARTNERS, L.P.
By: /s/
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Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
-----------------------------
Name:
Title:
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