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) CMS Co-Investment Subpartnership and CMS Diversified Partners,
L.P. (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 73,000 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
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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.
(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 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,
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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
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.
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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 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 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:
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THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV,
By: /s/
------------------------------------
Name:
Title:
ASSIGNEE:
CMS DIVERSIFIED PARTNERS, L.P.
Federal Tax ID No.:_______________
By: CMS/DP Associates L.P., a general partner
By: MSPS/DP, Inc., its general partner
By: /s/
------------------------------------
Name:
Title:
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By: /s/
------------------------------------
Name:
Title:
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CMS CO-INVESTMENT SUBPARTNERSHIP, a
Delaware general partnership
Federal Tax ID No.:_______________
By: CMS Co-Investment Partners, L.P., a Delaware
limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment, Inc., a Delaware
corporation
By: /s/
------------------------------------
Name:
Title:
By: CMS 1997 Investment Partners, L.P., a Delaware
limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/
------------------------------------
Name:
Title:
By: CMS Co-Investment Partners I-Q, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment Associates,
Inc., a Delaware corporation
By: /s/
------------------------------------
Name:
Title:
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By: CMS 1997 Investment Partners, L.P. a Delaware
limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/
------------------------------------
Name:
Title:
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/
------------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By: /s/
------------------------------------
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:
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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:
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:
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XXXXXX X. XXX CHARITABLE INVESTMENT 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:
BEACON CAPITAL PARTNERS, L.P.
By: /s/
------------------------------------
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
------------------------------------
Name:
Title:
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