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:
"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."
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.
2
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]
3
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/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Investment Officer
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
WYNDHAM INTERNATIONAL, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Investment Officer
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Investment Officer
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
4
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By: /s/ Xxxx Xxxxxxx
--------------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Investment Officer
Address: 0000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
[Remainder of page intentionally left blank]
5
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/ Xxxxxxx Xxxxxxxxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxxxxxxxx
Title: Vice President
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/ Xxxx Xxxxx
--------------------------------------
Name: Xxxx Xxxxx
Title: Vice President
Address: 1301 Avenue of the Americas
00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX X. XXX EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
6
XXXXXX X. XXX FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
XXXXXX X. XXX CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
Address: 00 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
7
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
Address: 0 Xxxxxxx Xxxxxx
00/xx/ Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Manager
Address: 0000 Xxxxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
8
