Exhibit 6
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as
of this 30th day of June, 1999, by and among (i) Beacon Capital Partners,
L.P. (the "Assignor"), (ii) BCP Voting, Inc., as trustee for Beacon Capital
Partners, L.P. (the "Assignee"), and (iii) Patriot American Hospitality,
Inc., Wyndham International, Inc., Patriot American Hospitality
Partnership, L.P. and Wyndham International Operating Partnership, L.P.
(collectively, the "Companies"). Capitalized terms used and not defined
herein shall have the meanings ascribed to such terms in the Securities
Purchase Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, in accordance with Sections 1.1(b)(i) and 11.3 of the
Securities Purchase Agreement, dated as of February 18, 1999, as amended,
by and among the Companies and the Investors (the "Original Investors")
named on the signature pages thereto (the "Securities Purchase Agreement"),
the Original Investors have the right to assign their rights to purchase
some or all of the Shares to one or more of its directors, officers,
employees, affiliates and investment funds or customer accounts which are
under the management of the Investors or their affiliates or to one more
other Investors;
WHEREAS, the Assignor desires to assign to the Assignee its
right to purchase 1,050,000 Shares (the "Subject Shares") and the Assignees
desires to accept such assignment;
WHEREAS, the Assignor maintains its obligation to purchase the
Subject Shares in the event that Assignee fails to exercise its right
granted
hereunder.
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 to purchase the
Subject Shares under the Securities Purchase Agreement to the Assignee.
(b) The Assignee hereby accepts the assignment of the
Assignor's right 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.
(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 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 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) 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.
(f) The Companies acknowledge the assignment and assumption
effected hereby and agree that 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.
(g) 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
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 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:
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc.,
its General Partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
ASSIGNEE:
BCP VOTING, INC., as Trustee for Beacon
Capital
Partners, L.P. Voting Trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
WYNDHAM INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President