Exhibit 5
ASSIGNMENT AND ASSUMPTION
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THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as of this
22nd day of June, 1999, by and among (i) ▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund IV, L.P.,
▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund IV, L.P. and THL-CCI Limited Partnership (the
"Assignor"), (ii) CKE Associates LLC (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:
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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 10,000 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.
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(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, 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ 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,
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however, that if the Closing does not occur by July 15, 1999, the Escrow Agent
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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 reason able 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 ▇▇▇▇▇▇ ▇. ▇▇▇ 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 ties 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
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that Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ 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
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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
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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:
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_______________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV,
L.P.
By: THL Equity Advisors IV, LLC
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
Name:
Title:
ASSIGNEE:
CKE ASSOCIATES LLC
Federal Tax ID No.:_______________
By:___________________________
Name:
Title:
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By:___________________________
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By:___________________________
Name:
Title:
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:_____________________
Name:
Title:
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:
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: __________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: __________________________
Name:
Title:
▇▇▇▇▇▇ ▇. ▇▇▇ 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:
BEACON CAPITAL PARTNERS, L.P.
By: ______________________
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: ______________________
Name:
Title: