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, ▇▇▇▇, ▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇ ▇. ▇▇▇ Equity Fund IV, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ Foreign Fund
IV, L.P., ▇▇▇▇▇▇ ▇. ▇▇▇ 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.
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.
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/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Investment Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WYNDHAM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Investment Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Investment Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General
Partner
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Chief Investment Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
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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/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Address: 1301 Avenue of the ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ ▇▇▇▇ ▇.▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
STRATEGIC REAL ESTATE INVESTMENTS I,
L.L.C.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Manager
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇