Exhibit 5
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. THL-CCI Limited Partnership,
Apollo Real Estate Investment Fund III, L.P. and Apollo Investment Fund, IV,
L.P. (collectively, the "Assignor"), (ii) Chase Equity Associates, L.P. (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 "Origi nal 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 Securi ties 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 250,000 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 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 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.
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(e) (i) 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 (the "Escrow Amount") no later than June 22, 1999, which
Escrow Amount shall be held in an escrow account, with Apollo Management IV,
L.P. acting as escrow agent (the "Escrow Agent"), pending the Closing. The
Escrow Agent shall be permitted to invest the Escrow Amount in the Chase Vista
Premiere U.S. Government Money Fund or similar investments until the Escrow
Amount is paid to the Company as purchase price for the Subject Shares upon
the Closing; provided, however, that if the Closing does not occur by July 15,
1999, the Escrow Agent shall release to the Assignee the amount of the Escrow
Amount which it deposited with the Escrow Agent. Any interest or other income
received on the on the Escrow Amount shall be distributed to the Assignee in
proportion to its contribution to the Escrow Amount, as soon as practicable,
but no more than three business days, following the Closing.
(ii) The Escrow Agent shall not be liable, except for its
own gross negligence or willful misconduct and, except with respect to claims
based upon such gross negligence or willful misconduct that are successfully
asserted against the Escrow Agent, and the Assignee hereto shall indemnify and
hold harmless the Escrow Agent and its officers, directors, employees and
agents from and against any and all losses, liabilities, claims, actions,
damages and expenses, including reasonable attorneys' fees and disbursements,
arising out of and in connection with its acting as escrow agent under this
Assignment. Without limiting the foregoing, the Escrow Agent shall in no event
be liable in connection with its investment or reinvestment of any cash held
by it hereunder in good faith, in accordance with the terms hereof, including
without limitation any liability for any delays (not resulting from its gross
negligence or willful misconduct) in the investment or reinvestment of the
Escrow Amount or any loss of interest incident to any such delays.
(iii) The Assignee shall pay or reimburse the Escrow Agent
upon request for any taxes relating to income derived from the Escrow Amount
and shall indemnify and hold harmless the Escrow Agent from any amounts that
it is obligated to pay in the way of such taxes. Any payments of income from
this Escrow Account shall be subject to withholding regulations then in force
with respect to United States taxes.
(f) The Assignee agrees that 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 determinations as to matters
arising under the Securities Purchase Agreement and related documentation and
that any
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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, except that the
Assignee will be entitled to receive and the Companies hereby agree to pay an
equity transaction funding fee of $262,500 at the time the Subject Shares are
purchased by the Assignee. 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.
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(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 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.
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IN WITNESS WHEREOF, parties hereto have caused this Assignment
and Assumption to be executed as of the date first above written.
ASSIGNOR:
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital Advisors
III, Inc., its General Partner
By:
------------------------------------------
Name:
Title:
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:
------------------------------------------
Name:
Title:
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XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
------------------------------------------
Name:
Title:
XXXXXX X. XXX FOREIGN FUND IV,
L.P.
By: THL Equity Advisors IV, LLC
By:
------------------------------------------
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
------------------------------------------
Name:
Title:
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ASSIGNEE:
CHASE EQUITY ASSOCIATES, L.P.
Federal Tax ID No.:00-0000000
By:
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Name:
Title:
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Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By:
----------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By:
----------------------------------
Name:
Title:
9
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By:
----------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By:
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Name:
Title:
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ORIGINAL INVESTORS:
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc., its General Partner
By:
----------------------------------
Name:
Title:
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:
----------------------------------
Name:
Title:
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XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
----------------------------------
Name:
Title:
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
----------------------------------
Name:
Title:
XXXXXX X. XXX CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
----------------------------------
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
----------------------------------
Name:
Title:
12
BEACON CAPITAL PARTNERS, L.P.
By:
----------------------------------
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By:
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Name:
Title:
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