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EXHIBIT 3
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (the "Amendment") is
made as of June 28, 1999, by and among Patriot American Hospitality, Inc., a
Delaware corporation ("Patriot"), Wyndham International, Inc., a Delaware
corporation ("Wyndham," and together with Patriot, the "Companies"), Patriot
American Hospitality Partnership, L.P. ("Patriot OP"), Wyndham International
Operating Partnership, L.P. ("Wyndham OP," and together with Patriot OP, the
"Operating Partnerships") and the parties identified on the signature page
hereof as the Original Investors (the "Original Investors"). All capitalized
terms used herein without definition shall have the meanings ascribed to them in
that certain Securities Purchase Agreement dated as of February 18, 1999 by and
among the Companies, the Operating Partnerships and the Original Investors (the
"Securities Purchase Agreement").
WHEREAS, the Companies, the Operating Partnerships, and the Original
Investors desire to make certain amendments to the Securities Purchase
Agreement.
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definition of Permitted Assignees and Permitted Third Party
Transferee. The term "Permitted Assignees" as defined in Section 1.1(b) of the
Securities Purchase Agreement shall include (i) the voting trusts formed or to
be formed by Beacon Capital Partners, Inc. and Beacon Capital Partners, L.P.
("Beacon") for the purpose of holding Beacon's Shares, as described in that
certain Confidential Information Statement prepared by Beacon dated June 8,
1999, as amended, and (ii) The Dartmouth Trust, The Franklin Trust and The
Bonnybrook Trust. The term "Permitted Third Party Transferees" as defined in
Section 1.1(b) of the Securities Purchase Agreement shall include the
beneficiaries of AIF/THL PAH LLC (other than Ares Leveraged Investment Fund,
L.P. and Ares Leveraged Investment Fund II, L.P., which shall be deemed to be
Permitted Assignees of Apollo Investment Fund IV, L.P. and Apollo Real Estate
Investment Fund III, L.P.) to the extent that AIF/THL PAH LLC distributes Shares
to these beneficiaries and these beneficiaries agree to be bound by the terms
and conditions of the Securities Purchase Agreement.
2. Delayed Closing of Portion of Shares Purchase.
(a) Section 1.2 of the Securities Purchase Agreement is
hereby amended by adding the following sentence at the end of Section
1.2:
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"Notwithstanding anything contained in this Agreement
to the contrary, upon the terms and subject to the
conditions set forth herein, on July 1, 0000, Xxxxxxx
will issue and sell to Beacon, and, in reliance on
the representations and warranties of the Companies
and the Operating Partnerships contained herein,
Beacon will purchase from Wyndham 450,000 Shares (the
"Delayed Purchase Shares") of the 1,500,000 Shares to
be purchased by Beacon pursuant to Section 1.1, for a
purchase price of $100.00 per Share. Beacon, in its
sole discretion, may fund up to $45 million (but only
to the extent that the same, less accrued interest
and exit fees, has been advanced by Beacon on or
prior to July 1, 1999) of the Purchase Price of the
Delayed Purchase Shares through transfer of all or
part of Beacon's loan receivable, plus accrued
interest and exit fees, from PAH Realty Company, LLC
which is secured by a mortgage on the Batterymarch
hotel, Boston, Massachusetts (the "Batterymarch
Mortgage Loan")."
(b) Section 2.1 of the Securities Purchase Agreement is
hereby amended by adding the following sentence at the end of Section
2.1:
"Notwithstanding anything contained in this Agreement
to the contrary, for purposes of all matters in this
Agreement relating to the purchase and sale of the
Delayed Purchase Shares, including, without
limitation the satisfaction of the conditions
precedent contained in Article V of this Agreement,
the term "Closing" shall mean the closing of the
purchase and sale of the Delayed Purchase Shares, and
the term "Closing Date" shall mean July 1, 1999.
3. Unaccredited Investors as Permitted Assignees. Section 4.1(b)
of the Securities Purchase Agreement is amended by deleting the last sentence of
Section 4.1(b) and replacing it with the following:
"Each Investor, other than three of the Permitted
Assignees of Xxxxxx X. Xxx Equity Fund IV, L.P.,
Xxxxxx X. Xxx Foreign Fund IV, L.P., Xxxxxx X. Xxx
Charitable Investment L.P., and THL-CCI Limited
Partnership qualifies as an "accredited investor" as
such term is defined in Section 2(15) of the
Securities Act and Regulation D promulgated
thereunder."
4. Definition of "Covered Anatole Termination". Section 10.2(a)
of the Securities Purchase Agreement is amended so that the defined term
"Covered Anatole Termination" shall mean any termination of the Anatole
Management Contract pursuant to Section 12.2(2) of the Anatole Management
Contract, as amended February 16, 1999. The Companies and the Operating
Partnerships agree to make no further amendments to Section 12.2(2) of the
Anatole Management Contract without the Investors' prior written consent.
5. Restructuring Plan. The first sentence of paragraph number 6
of Exhibit A - Restructuring Plan, to the Securities Purchase Agreement is
hereby amended to change the reference in such sentence from "voting stock" to
"non-voting stock."
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6. Form of Bylaws. Exhibit C to the Securities Purchase
Agreement, Form of Amended and Restated Bylaws of Wyndham, is hereby deleted and
replaced in its entirety with the attached Exhibit C.
7. Form of Certificate of Designation of Series B Convertible
Preferred Stock. Exhibit G to the Securities Purchase Agreement, Form of
Certificate of Designation of Series B Convertible Preferred Stock, is hereby
deleted and replaced in its entirety with the attached Exhibit G.
8. Impact of Amendment. All provisions of the Securities Purchase
Agreement and the exhibits thereto not amended by this Amendment shall remain in
full force and effect.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, each of the undersigned has caused the
foregoing Agreement to be executed by one of its duly authorized signatories as
of the date first above written.
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
WYNDHAM INTERNATIONAL, INC.
By: /s/
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General
Partner
By: /s/
-----------------------------------
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Name:
Title:
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
[Remainder of page intentionally left blank]
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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: /s/
-----------------------------------
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: /s/
-----------------------------------
Name:
Title:
Address: 1301 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
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XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX X. XXX CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
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BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/
-----------------------------------
Name:
Title:
Address: 0 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
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