Exhibit 10.32
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OMNIBUS PURCHASE AND SALE AGREEMENT
TABLE OF CONTENTS
Page
DEFINITIONS................................................................. 2
ARTICLE I - PURCHASE AND SALE OF PROPERTIES................................. 7
1.1 Purchase and Sale of Properties................................... 7
1.2 Closing........................................................... 9
1.3 Option............................................................ 9
1.4 Terminated Merger Election........................................ 9
ARTICLE ARTICLE II - REPRESENTATIONS AND WARRANTIES
OF THE FAMILY ENTITIES................................................. 9
ARTICLE ARTICLE III - COVENANTS............................................. 10
3.1 Covenants of Crow Family Entities................................. 10
ARTICLE IV - CONDITIONS TO CLOSING.......................................... 16
4.1 Conditions to the Obligations of Patriot OP and the
Crow Family Entities.............................................. 16
4.2 Conditions to Patriot OP's Obligations............................ 16
ARTICLE V - TERMINATION OF AGREEMENT........................................ 17
5.1 Termination....................................................... 17
5.2 Notice of Termination............................................. 18
5.3 Effect of Termination............................................. 18
5.4 Termination Fees.................................................. 18
ARTICLE VI - MISCELLANEOUS.................................................. 19
6.1 Marketing......................................................... 19
6.2 Entire Agreement; No Amendment.................................... 19
6.3 Notices........................................................... 20
6.4 No Assignment..................................................... 21
6.5 Governing Law..................................................... 21
6.6 Multiple Counterparts............................................. 21
6.7 Further Assurances................................................ 21
6.8 Miscellaneous..................................................... 21
6.9 Invalid Provisions................................................ 22
6.10 Confidentiality; Publicity........................................ 22
6.11 Time of Essence................................................... 22
6.12 Costs and Expenses................................................ 22
6.13 Enforcement of Agreement.......................................... 22
(i)
SCHEDULES
Schedule I - Crow Family Entities, Properties, Allocated Purchase Prices
and NOI
Schedule II - Terms of Anatole Management Contract
EXHIBIT A - Lease Termination Agreement
(ii)
OMNIBUS PURCHASE AND SALE AGREEMENT
This OMNIBUS PURCHASE AND SALE AGREEMENT (this "Agreement") is entered into
as of the 14th day of April, 1997, by and among those partnerships listed on
Schedule I hereto (the "Crow Family Entities") and Patriot American Hospitality
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Partnership, L.P., a Virginia limited partnership ("Patriot OP").
RECITALS
WHEREAS, Patriot American Hospitality, Inc., a Virginia corporation
("Patriot"), California Jockey Club, a Delaware corporation ("CJC") and Bay
Meadow Operating Company, a Delaware corporation ("BMOC") have entered into an
Agreement and Plan of Merger ( the "CJC Merger Agreement") dated as of February
24, 1997, pursuant to which Patriot, CJC and BMOC agreed to engage in a business
combination among Patriot, CJC and BMOC (the "CJC Merger");
WHEREAS, the shares of common stock, par value $.01 per share, of CJC and
the shares of common stock, par value $.01 per share, of BMOC are paired and
transferable and traded only in combination as a single unit (the "Paired
Shares") on the American Stock Exchange;
WHEREAS, upon consummation of the CJC Merger, Patriot will have merged with
and into CJC with CJC being the surviving company ("New Patriot");
WHEREAS, contemporaneously with the execution of this Agreement, Patriot
and Wyndham Hotel Corporation, a Delaware corporation ("Wyndham"), have entered
into a merger agreement to effect the merger of Wyndham with and into New
Patriot (the "Wyndham Merger");
WHEREAS, each of the Crow Family Entities (except the Crow Family Entity
that owns Bristol (as hereinafter defined)) has entered into an agreement (a
"Purchase and Sale Agreement") with Patriot OP, pursuant to which certain hotel
properties and related assets of such Crow Family Entity will be sold to Patriot
OP or an affiliate of Patriot OP;
WHEREAS, the Crow Family Entities and Patriot OP desire to set forth
certain conditions and further terms pursuant to which the various obligations
of the parties to the Purchase and Sale Agreements shall be subject and certain
procedures to coordinate among the various provisions of the Purchase and Sale
Agreements;
WHEREAS, the parties hereto understand and acknowledge that Patriot OP may
hereafter, in its sole discretion, undertake a transaction or series of
transactions to effect a structure (a "Private Label REIT"), pursuant to which
transactions it may, by way of
illustration only, (i) transfer all of its assets, subject to its liabilities,
into a newly organized subsidiary partnership ("New REIT OP"), (ii) contribute
all of its interests in New REIT OP to a newly organized private REIT ("Private
REIT") in exchange for all of the stock of Private REIT (less the shares
required to be issued to at least 99 other investors in order to qualify as a
REIT) and (iii) liquidate Patriot OP, with its partners receiving their
proportionate shares of the stock of Private REIT, but which transactions may
also, in Patriot OP's sole discretion, consist of other transactions that result
in a similar structure;
WHEREAS, the parties hereto desire that Patriot OP have an option
("Option") in the event it chooses to utilize the Private Label REIT, subject to
its sole discretion, to cause New REIT OP to offer to deliver the consideration
for the Properties (as defined below) in units of partnership interests in New
REIT OP (and, at its election, any other partnership that may result from the
CJC Merger) or cash to the partners of the Crow Family Entities (at the
elections of such partners); and
WHEREAS, Patriot OP and the Crow Family Entities desire to make certain
representations, warranties and agreements in connection with this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, each of the parties hereby agrees
as follows:
DEFINITIONS
The following terms as used in this Agreement will have the meanings
attributed to them as set forth below unless the context clearly requires
another meaning. Certain other defined terms shall have the meanings ascribed
to them elsewhere in this Agreement.
"Affiliate" of a Person shall mean any entity in which such Person owns
directly or indirectly fifty percent (50%) or more of any class of securities or
interests issued by such entity or any entity controlling, controlled by or
under common control with such Person.
"Allocated Purchase Price" shall mean, with respect to each Property, that
amount set forth for that Property on Schedule I hereto.
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"Anatole" shall mean the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Hotel, located in Dallas, Texas.
"BMOC" has the meaning set forth in the recitals.
"Bristol" shall mean the Wyndham Bristol Hotel, located in the District of
Columbia.
"Business Day" shall mean any weekday that is not an official holiday in
the State of Texas.
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"CJC" has the meaning set forth in the recitals.
"CJC Merger" has the meaning set forth in the recitals.
"Closing" has the meaning set forth in Section 1.2.
"Closing Adjustments" shall mean, with respect to each Property, "Closing
Adjustments" as such term is defined in the applicable Purchase and Sale
Agreement.
"Crow Family Entity" has the meaning set forth in the Preamble hereof.
"Crow Family Entity Partner" shall mean a holder of a partnership interest,
or other equity interest, in a Crow Family Entity.
"Deposit" has the meaning set forth in Section 3.1(c).
"Earnout" has the meaning set forth in Section 1.1(b).
"Earnout NOI" shall mean, for a Property, the amount by which actual Fiscal
Year 1999 gross revenues from hotel operations (including restaurant, bar and
other services) exceed the aggregate of, without duplication, (a) all operating
expenses of the Property accrued during such period (excluding capital
expenditures), including amounts payable to the Property's manager pursuant to
the applicable Management Contract for the Property (including base and
incentive management fees and trade name fees, which trade name fees shall be
calculated as 1% of gross revenues notwithstanding any provision in the
Management Contract relating thereto that may provide otherwise), (b) Fixed
Charges (other than interest or principal payments on indebtedness and
partnership-related charges but specifically including principal and interest
payments on capital leases provided, however, that Patriot OP shall act in good
faith and in a manner consistent with its reasonable and customary past
practices in the event it should enter into or buy out capital leases with
respect to the Earnout Properties, with the understanding that it shall not
manipulate Earnout NOI in a manner to violate the intention of the parties
hereunder) paid during such period and (c) an allowance of 4% of gross revenues
for capital expenditures. Operating expenses, capital expenditures and Fixed
Charges shall be calculated and determined in the same manner as such items have
been calculated and determined under the Management Contract for the Earnout
Property in question and the operating budgets provided to Patriot OP and its
advisors in connection with the transactions contemplated by this Agreement.
"Earnout Property" shall mean either Riverfront or La Guardia.
"Effective Closing Time" has the meaning set forth in Section 1.2.
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"Effective Date" shall mean the first date hereinabove written.
"Final Crow Family Entities" shall mean those Crow Family Entities that are
parties to one or more of the Final Purchase and Sale Agreements.
"Final Properties" shall mean those Properties (other than Bristol) that
are not Rejected Properties or Undelivered Properties; provided, however, that
in the event that the conditions set forth in Section 4.2 are not satisfied or
waived by Patriot OP with respect to one or more of the Final Properties, then
at the election of Patriot OP, Final Properties shall mean those Final
Properties for which such conditions have been satisfied or waived.
"Final Purchase and Sale Agreements" shall mean those Purchase and Sale
Agreements with respect to the Final Properties.
"Final Related Agreements" shall mean the Final Purchase and Sale
Agreements and all other agreements herein or therein contemplated to be
executed and delivered by both (i) Patriot OP and (ii) one or more of the Final
Crow Family Entities.
"Fixed Charges" shall have the meaning provided therefor in the Uniform
System of Accounts.
"General Partner" shall mean, with respect to a Crow Family Entity, the
general partner or general partners under the limited partnership agreement of
such Crow Family Entity.
"Greenspoint Agreement" has the meaning set forth in Section 4.2(d).
"Greenspoint Partner" has the meaning set forth in Section 4.2(d).
"La Guardia" shall mean the ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ Garden Hotel, located in
East Elmhurst, New York.
"Management Contract" shall mean, with respect to a Property, that property
management contract in effect as of the Effective Date respecting the management
and operation of such Property.
"Milwaukee" shall mean the Wyndham Milwaukee Theatre District Hotel,
located in Milwaukee, Wisconsin.
"Milwaukee NOI" shall mean, the amount by which, for the twelve-month
period preceding such determination of Milwaukee NOI, gross revenues from hotel
operations (including, restaurant, bar and other services) exceed the aggregate
of, without duplication, (a)
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all operating expenses of the Property accrued during such period (excluding
capital expenditures), including amounts payable to the Property's manager
pursuant to the applicable Management Contract for the Property (including base
and incentive management fees and trade name fees), (b) Fixed Charges (other
than interest or principal payments on indebtedness and partnership-related
charges but specifically including principal and interest payments on capital
leases; provided, however, that the Crow Family Entity owning Milwaukee shall
act in good faith and in a manner consistent with its reasonable and customary
past practices and the operating budgets furnished to Patriot OP and its
advisors in connection herewith in the event it should enter into or buy out
capital leases, with the understanding that it shall not manipulate Milwaukee
NOI in a manner to violate the intention of the parties hereunder as reflected
in such furnished operating budgets) paid during such period and (c) an
allowance of 4% of gross revenues for capital expenditures. Operating expenses,
capital expenditures and Fixed Charges shall be calculated and determined in the
same manner as such items have been calculated and determined under the
Management Contract for Milwaukee and the operating budgets provided to Patriot
OP and its advisors in connection with the transactions contemplated by this
Agreement.
"New Patriot" has the meaning set forth in the recitals.
"New REIT OP" has the meaning set forth in the recitals.
"NOI" shall mean, for each Property, that amount set forth as NOI in
Schedule I for such Property.
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"Offer" has the meaning set forth in Section 3.1(c).
"Offer Notice" has the meaning set forth in Section 3.1(d).
"Offer Properties" shall mean Bristol and all of the Undelivered
Properties.
"Option" has the meaning set forth in the recitals.
"Palm Springs" shall mean the Wyndham Palm Springs Hotel, located in Palm
Springs, California.
"Patriot" has the meaning set forth in the recitals.
"Patriot GP" shall mean the general partner of Patriot OP.
"Patriot OP" has the meaning set forth in the recitals.
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"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, business trust, limited liability
company, trust, unincorporated organization or government or a political
subdivision, agency or instrumentality thereof or other entity or organization
of any kind.
"Private Label REIT" has the meaning set forth in the recitals.
"Private REIT" has the meaning set forth in the recitals.
"Property" shall generally refer to any one of Bristol; the Wyndham Bel Age
Hotel, located in West Hollywood, California; the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Plaza Hotel,
located in Philadelphia, Pennsylvania; Milwaukee; Palm Springs; La Guardia; the
Wyndham Northwest Chicago Hotel, located in Itasca, Illinois; the Wyndham Las
Colinas Garden Hotel, located in Irving, Texas; the ▇▇▇▇▇▇▇ Novi Garden Hotel,
located in Novi, Michigan; the Pleasanton Garden Hotel, located in Pleasanton,
California; Riverfront; and the ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Garden Hotel, located in Wood
Dale, Illinois, but shall more particularly have the meanings variously ascribed
thereto, as applicable, in the eleven (11) Purchase and Sale Agreements.
"Purchase and Sale Agreements" has the meaning set forth in the recitals.
"Rejected Property" shall mean any of the Properties for which the relevant
Purchase and Sale Agreement is terminated by Patriot OP pursuant to Section
2.4(a) thereof and, upon the rejection of a Property, this Agreement shall be
inapplicable to such Rejected Property except as set forth in Section 6.10.
"Related Agreements" shall mean the Purchase and Sale Agreements and all
other agreements herein or therein contemplated to be executed and delivered in
connection herewith.
"Representation and Warranty Certificate" shall have the meanings, with
respect to each Property, variously ascribed thereto in the Purchase and Sale
Agreements.
"Requisite Consent" has the meanings variously ascribed thereto under the
Purchase and Sale Agreements.
"Right of First Offer" has the meaning set forth in Section 3.1(d).
"Right of First Refusal" has the meaning set forth in Section 3.1(c).
"Riverfront" shall mean the Wyndham Riverfront Hotel, located in New
Orleans, Louisiana.
"Terminated Merger Election" has the meaning set forth in Section 1.4.
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"Undelivered Property" shall mean any Property (other than Bristol) (i)
that is not a Rejected Property and (ii) respecting which the conditions to
Patriot OP's performance of its obligations pursuant to the applicable Purchase
and Sale Agreement shall not have been satisfied or waived as of the Closing.
"Uniform System of Accounts" shall mean the Uniform System of Accounts for
Hotels, Ninth Revised Edition, 1996, as adopted by the American Hotel and Motel
Association and all future amendments and supplements thereto.
"Wyndham" has the meaning set forth in the recitals.
"Wyndham Merger" has the meaning set forth in the recitals.
"Wyndham Merger Agreement" shall mean that certain Agreement and Plan of
Merger of even date herewith by and between Patriot and Wyndham with respect to
the Wyndham Merger.
"Wyndham Merger Closing" shall mean the closing contemplated in the Wyndham
Merger Agreement pursuant to which the Wyndham Merger will be effected.
ARTICLE I - PURCHASE AND SALE OF PROPERTIES
1.1 Purchase and Sale of Properties.
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(a) Payment at Closing. Each Crow Family Entity hereby agrees, with
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respect to the Final Property owned by such Crow Family Entity, to sell and
transfer such Property to Patriot OP and, with respect to any portion of such
Property that Patriot OP may designate, to any Person that Patriot OP so
designates, on the Closing Date pursuant to the applicable Final Purchase and
Sale Agreement and the terms and conditions contained in this Agreement. In
consideration of such sale and transfer by the Final Crow Family Entities and in
reliance on the representations and warranties of the Crow Family Entities in
their respective Purchase and Sale Agreements and in this Agreement, Patriot OP
agrees to pay to each Final Crow Family Entity in consideration for the sale of
its Final Property to Patriot OP, or its designee or designees, the Allocated
Purchase Price for such Final Property, as such Allocated Purchase Price may be
adjusted pursuant to the terms of Closing Adjustments under the applicable Final
Purchase and Sale Agreement.
(b) Payment of Earnout. Certain additional payments ("Earnout") for
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Riverfront (in the event that such Property is sold and transferred in
accordance with Section 1.1(a)) and La Guardia (in the event that such Property
is sold and transferred in accordance with Section 1.1(a)) shall be made on
April 30, 2000 to the applicable Crow Family Entities in the amounts of (i) for
Riverfront, the sum of (A) $9,000,000 multiplied by the ratio of (x) the
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lesser of (*) $200,000 and (**) any excess of Earnout NOI for Riverfront over
$3,537,000 (provided that, if there is no such excess, the amount in this clause
(x) shall be $0.00) to (y) $200,000 and (B) the amount, if any, by which Earnout
NOI for Riverfront exceeds $3,737,000 multiplied by 9.5238 and (ii) for La
Guardia, the sum of (A) $4,750,000 multiplied by the ratio of (x) the lesser of
(*) $290,000 and (**) any excess of Earnout NOI for La Guardia over $2,310,000
(provided that, if there is no such excess, the amount in this clause (x) shall
be $0.00) to (y) $290,000 and (B) the amount, if any, by which Earnout NOI for
La Guardia exceeds $2,600,000 multiplied by 10.5263. Earnout attributable to
Riverfront and La Guardia shall be paid to the applicable Crow Family Entities
c/o Crow Family Holdings at the address set forth in Section 6.3.
(c) Earnout Property Management. From and after the Closing Date,
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Patriot OP shall:
(i) operate each Earnout Property in substantially the same
manner as each such Property was operated before the Closing Date
pursuant to the terms of the Management Contracts therefor, and keep
such Properties in good condition, casualty excepted, so as to
maintain the caliber of the operations conducted at such Properties
and the goodwill of all tenants of such Properties and all employees,
guests, and other customers thereof;
(ii) maintain each Earnout Property's books of account and
records in the usual, regular and ordinary manner, in accordance with
sound accounting principles applied on a basis consistent with the
basis used in keeping such books and records under the Management
Contracts;
(iii) within 20 days of the end of each calendar quarter, deliver
to the applicable Crow Family Entity quarterly operating statements
for the previous quarter indicating the gross revenues and gross
operating expenses of the Earnout Properties and all departments
thereof and, by the 60th day of each calendar year, the annual
operating statements for the prior year;
(iv) allocate all national marketing sales, centralized
reservations and other allocated operational costs of the manager to
the Earnout Properties in a manner consistent with current practices
and in a manner such that such Properties shall not bear a
disproportionate share of such costs; and
(v) provide that the applicable Crow Family Entity shall retain
an insurable interest in the Earnout Properties and shall be named
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as an additional insured on the business interruption insurance policy
maintained by Patriot OP. From the date of Closing through the 60th
day following the date for payment of Earnout (if any), Patriot OP
shall maintain business interruption insurance in respect of the
Properties providing the same coverages as the business interruption
insurance currently in effect for the Earnout Properties.
In connection with the payment of the Earnout, the Crow Family Entity owning the
applicable Property shall have the right to audit the books and records relating
to the Property in question and Patriot OP shall (and shall cause the management
company of such Property to) fully cooperate with the Crow Family Entity in
connection with such audit. Each such audit shall be done at the applicable
Crow Family Entity's expense, unless the audit reveals an error was made which
resulted in an understatement of the Earnout NOI by $10,000 or more, in which
case Patriot OP shall pay the cost of such audit.
1.2 Closing. The Closing of the transactions contemplated by this
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Agreement (the "Closing") shall occur at 10:00 a.m. (E.S.T.) on (i) the date
that the Wyndham Merger Closing shall occur and (ii) in the event the Wyndham
Merger Agreement is terminated and a Terminated Merger Election is made pursuant
to Section 1.4 by the Crow Family Entities and Patriot OP, the date that is 30
days after the date of the termination of the Wyndham Merger Agreement pursuant
to Section 10.1 thereof ("Closing Date"). The Closing will occur at the offices
of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, Exchange Place, Boston, Massachusetts, or at
such other place as Patriot OP shall designate by at least five days' prior
written notice to the Final Crow Family Entities. At the Closing, the parties
hereto will execute and deliver all of the documents required to be delivered,
and take all other action required to be taken, in connection with the
transactions contemplated hereby. Pursuant to the Closing, which Closing shall
be expressly subject to the satisfaction or waiver of all conditions set forth
herein, including, without limitation, those set forth in Article 4 hereof, all
of the actions to be taken and transactions to be effected as of the Closing
pursuant to the terms herein and the Final Purchase and Sale Agreements shall be
taken or deemed to have been taken and shall be effective as of (i) the time at
which the Wyndham Merger shall become effective or (ii) in the event the Wyndham
Merger Agreement has been terminated, the time that Patriot OP shall designate
on the Closing Date (in either case, the "Effective Closing Time"); provided,
however, that the time of the Effective Closing Time shall not affect the time
with respect to which the allocations set forth in Article 8 of each Final
Purchase and Sale Agreement are determined.
1.3 Option. The parties hereto agree to use their commercially reasonable
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good faith efforts to perform any administrative or ministerial acts reasonably
necessary to enable Patriot OP to exercise its Option, but nothing herein shall
require any Crow Family Entity Partner to elect to receive units of partnership
interests or any other non-cash consideration as consideration in the event of
such exercise.
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1.4 Terminated Merger Election. In the event that the Wyndham Merger
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Agreement is terminated pursuant to Section 10.1 thereof and Wyndham is required
to pay any amount pursuant to Section 10.3(a) thereof, (i) Patriot OP may waive
the conditions set forth in Section 4.1(b) to its obligations hereunder and (ii)
a majority of the Crow Family Entities (excluding owners of Rejected Properties)
may waive the conditions set forth in Section 4.1(b) to the obligations
hereunder with respect to all Crow Family Entities, in which case each Crow
Family Entity hereby agrees to do any or all things necessary to effect such
waiver (in the case of either clause (i) or clause (ii), a "Terminated Merger
Election").
ARTICLE II - REPRESENTATIONS AND WARRANTIES
OF THE FAMILY ENTITIES
Each Crow Family Entity, severally and not jointly, hereby represents and
warrants to Patriot OP and Patriot GP, with respect to its Property, as of the
date the Representation and Warranty Certificate is delivered thereunder, that
the representations and warranties of such Crow Family Entity in the applicable
Purchase and Sale Agreement are true and correct in all material respects and
are hereby incorporated as if herein made.
ARTICLE III - COVENANTS
3.1 Covenants of Crow Family Entities.
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(a) Acceleration of Study Period. Each Crow Family Entity hereby
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agrees that Patriot OP may, at any time, unilaterally waive any further rights
it may have under the Study Period (as defined in the applicable Purchase and
Sale Agreement).
(b) Option to Purchase Milwaukee. As disclosed in the Purchase and
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Sale Agreement for Milwaukee, the approval of and consent to the sale and
purchase of such Property pursuant to such Purchase and Sale Agreement must be
obtained from (i) the current mortgage lender on Milwaukee since its mortgage
loan is closed to prepayment until December 31, 1998 and (ii) the ground lessor
of Milwaukee. In the event Milwaukee is not a Final Property as a result of the
failure to obtain such mortgage lender's and such ground lessor's approval and
consent prior to the Closing, the Crow Family Entity which owns Milwaukee agrees
that it will use all commercially reasonable good faith efforts (in no event,
however, to include any payment or economic concession by such Crow Family
Entity to such ground lessor or to such mortgage lender in excess of the then
outstanding principal amount of such mortgage loan plus all unpaid and accrued
interest thereon (including any amounts based on profit participation or shared
appreciation or similar amounts which would be payable upon such sale and
purchase based on the Allocated Purchase Price for Milwaukee if such mortgage
loan was not closed to prepayment) without such Crow Family Entity's consent in
its sole discretion) to obtain such approvals and consents as quickly as
possible during the twenty-four
10
(24) month period commencing on the Closing Date and during such period shall
not enter into any agreement which precludes conveyance of Milwaukee to Patriot
OP. When and if during such twenty-four (24) month period such approvals and
consents are obtained or the prohibition on prepayment expires, Patriot OP shall
have the right to purchase such Property pursuant to terms substantially similar
to the terms respecting which such Property would have been acquired pursuant to
its Purchase and Sale Agreement if such Property had been a Final Property at
Closing (except that the closing date shall be as set forth below) by giving
timely written notice to such effect to such Crow Family Entity as set forth
below, at a purchase price equal to the then Milwaukee NOI multiplied by 10. If
Patriot OP exercises such right to purchase, Patriot OP shall be obligated to
pay the prepayment premium or fee due under such mortgage loan (but not any
principal or accrued interest, including amounts based on profit participation
or shared appreciation or similar amounts), but Patriot OP shall be entitled to
negotiate the amount of any such prepayment premium or fee with the mortgage
lender and such Crow Family Entity shall cooperate in connection therewith.
Promptly upon the occurrence of the ability of the Crow Family Entity owning
Milwaukee to deliver Milwaukee as set forth above, such Crow Family Entity shall
provide notice thereof to Patriot OP and Patriot OP shall then have the right to
elect to purchase Milwaukee upon the foregoing terms and conditions by
delivering written notice of such election to the Crow Family Entity within five
(5) Business Days after receipt of the Crow Family Entity's notice. If Patriot
OP timely notifies the Crow Family Entity that it elects to purchase Milwaukee,
the Crow Family Entity and Patriot OP shall enter into a purchase and sale
agreement within ten (10) Business Days after Patriot OP's election, which
purchase and sale agreement shall provide for a closing date of not more than
sixty (60) days following execution thereof and shall otherwise be substantially
on the terms and conditions set forth in the Purchase and Sale Agreement for
Milwaukee. If Patriot OP does not timely notify the Crow Family Entity that it
elects to purchase Milwaukee, Patriot OP shall have no further right to purchase
Milwaukee except pursuant to Section 3.1(d).
(c) Rights of First Refusal on Offer Properties. The Crow Family
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Entities owning Offer Properties agree that, with respect to each Property that
is an Offer Property except for Milwaukee, and for the twenty-four (24) month
period commencing on the Closing Date, Patriot OP shall have a Right of First
Refusal (herein so called) to purchase such Offer Property(ies) from the
respective Crow Family Entity(ies) on the following terms and conditions:
(i) If any Crow Family Entity owning an Offer Property receives
an unsolicited bona fide third party offer to sell, convey, ground
lease or otherwise transfer its Offer Property or a direct or indirect
interest in such Crow Family Entity (each an "Interest"), or if a Crow
Family Entity otherwise intends to market, sell, convey, ground lease
or otherwise transfer an Interest, it shall first deliver to Patriot
OP written notice (the "Negotiation Notice") thereof and Patriot OP
shall have a period of thirty (30) days following receipt of the
Negotiation Notice to negotiate a purchase and sale agreement for the
Interest at
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a price and on other terms and conditions as are acceptable to the
Crow Family Entity and Patriot OP except as otherwise set forth below.
Patriot OP shall have the exclusive right to negotiate with the Crow
Family Entity during such thirty (30) day period. In the event Patriot
OP and the Crow Family Entity enter into a purchase and sale agreement
during this period, Patriot OP shall upon execution thereof deposit
with an escrow agent reasonably satisfactory to Patriot OP and the
Crow Family Entity the amount of five percent (5%) of the purchase
price (which amount may be one-half ( 1/2) in cash and one-half ( 1/2)
in the form of a demand promissory note) as an ▇▇▇▇▇▇▇ money deposit
(the "Deposit"). Any study or diligence period in favor of Patriot OP
under such purchase and sale agreement shall be limited to thirty (30)
days in order to allow Patriot OP to update title and to conduct
diligence related to environmental matters. The Deposit may be
returned to Patriot OP only in the event that (i) the purchase and
sale transaction is not closed as a result of a default by the Crow
Family Entity or other event beyond Patriot's OP's reasonable control
without the expenditure of funds by Patriot OP or its Affiliates or
(ii) if Patriot OP terminates the purchase and sale agreement prior to
the expiration of the study or diligence period as the result of an
unacceptable material title or unacceptable material environmental
condition. The closing shall occur within sixty (60) days after
execution of the purchase and sale agreement. Such purchase and sale
agreement shall otherwise be (A) substantially on the terms and
conditions set forth in the Purchase and Sale Agreement on the
applicable Property, if any, and (B) for Bristol, on terms and
conditions substantially similar to those for the Purchase and Sale
Agreements for the Final Properties. In the event Patriot OP and the
Crow Family Entity do not agree to the terms of a purchase and sale
agreement within such thirty (30) day period, such Crow Family Entity
shall have no right to sell, convey, ground lease or otherwise
transfer an Interest except in accordance with the remaining
provisions of this Section 3.1(c).
(ii) If a Crow Family Entity receives a bona fide thirty party
offer to sell, convey, ground lease or otherwise transfer an Interest
in the form of a fully executed letter of intent or term sheet (the
"Letter of Intent") setting forth all of the basic economic terms of
the proposed transaction and the material terms and conditions of any
study or diligence period, which Letter of Intent shall include a
covenant binding on such Crow Family Entity whereby such Crow Family
Entity agrees not to market, advertise or otherwise enter into any
discussions with respect to the sale of the Interest with any party
other than Patriot OP, such Crow Family Entity shall provide notice to
Patriot OP of the Letter of Intent, together with a true and correct
copy thereof. Patriot OP shall then have the right to elect to
purchase the Interest upon the same terms and conditions as are set
forth in the Letter of Intent by delivering written notice of such
election to the Crow Family Entity within five (5) Business Days after
receipt of such
12
Crow Family Entity's notice. If Patriot OP timely notifies the Crow
Family Entity that it elects to purchase the Interest, the Crow Family
Entity and Patriot OP shall enter into a purchase and sale agreement
within ten (10) Business Days after Patriot OP's election to purchase
pursuant to its Right of First Refusal upon the terms and conditions
set forth in the Letter of Intent, except as set forth below with
respect to the ▇▇▇▇▇▇▇ money deposit, any study or diligence period,
and the closing date. Patriot OP shall, upon execution thereof,
deposit with an escrow agent reasonably satisfactory to Patriot OP and
the Crow Family Entity the Deposit. Any study or diligence period in
favor of the Purchase OP under such purchase and sale agreement shall
be limited to thirty (30) days in order to allow Patriot OP to update
title and to conduct diligence related to environmental matters. The
Deposit may be returned to Patriot OP only in the event that (i) the
purchase and sale transaction is not closed as a result of a default
by the Crow Family Entity or other event beyond Patriot OP's
reasonable control without the expenditure of funds by Patriot OP or
its Affiliates or (ii) if Patriot OP terminates the purchase and sale
agreement prior to the expiration of the study or diligence period as
a result of an unacceptable material title or unacceptable material
environmental condition. If Patriot OP exercises its Right of First
Refusal, the purchase and sale agreement shall provide for a closing
date of not more than sixty (60) days following execution of such
purchase and sale agreement. Such purchase and sale agreement shall
otherwise be (A) substantially on the terms and conditions set forth
in the Purchase and Sale Agreement for the applicable Property, if
any, and (B) for Bristol, on terms and conditions substantially
similar to those for the Purchase and Sale Agreements for the Final
Properties.
(iii) If Patriot OP fails to timely exercise the Right of First
Refusal or fails to timely enter into the purchase and sale agreement,
the Crow Family Entity shall be free to sell, convey, ground lease or
otherwise transfer the Interest to the third party purchaser which
entered into the Letter of Intent or an Affiliate thereof (but not any
other Person) on substantially the same material terms and conditions
as are contained in the Letter of Intent (subject to the last sentence
of this Section 3.1(c)(iii)) within a period of 270 days after such
failure. If such third party purchaser or an Affiliate thereof does
not execute a purchase and sale agreement upon substantially the same
terms and conditions as are set forth in the Letter of Intent (subject
to the last sentence of this Section 3.1(c)(iii)) and close thereunder
within such 270 day period, Patriot OP's rights pursuant to this Right
of First Refusal shall be revived. Notwithstanding the foregoing, the
Crow Family Entity shall not be precluded from negotiating changes to
the terms and conditions set forth in the Letter of Intent so long as
such changes are the result of arm's length negotiations between the
Crow Family Entity and the third party purchaser, such changes do not
result in a net economic return to the Crow Family Entity of less than
92.5% of the net
13
economic return to the Crow Family Entity had Patriot OP elected to
exercise the Right of First Refusal, and are not otherwise on other
economic terms and conditions more favorable in any material respect
than those set forth in the Letter of Intent.
(iv) The Right of First Refusal described in this Section 3.1(c)
shall not apply to any sale, conveyance, ground lease or other bona
fide transfer of an Interest to members of ▇▇▇▇▇▇▇ ▇▇▇▇'▇ family,
trusts established for any one or more of the foregoing persons'
benefit, Affiliates of the foregoing parties, or Affiliates of the
applicable Crow Family Entity, in each case as long as the Right of
First Refusal continues to be binding on such transferees.
(d) Right of First Offer on Offer Properties. Each Crow Family Entity
----------------------------------------
agrees as follows in this Section 3.1(d) with respect to its Property that is an
Offer Property which has not previously been conveyed to a third party pursuant
to Section 3.1(c), and with respect to Milwaukee unless Milwaukee has previously
been conveyed pursuant to Section 3.1(b) after such Property can be delivered as
set forth in Section 3.1(b). In the case of the Offer Properties other than
Milwaukee, for the twenty-four (24) month period commencing twenty-four (24)
months after the Closing Date, and in the case of Milwaukee, for the period
commencing on the date Patriot OP fails to exercise its option to purchase
Milwaukee after Milwaukee can be delivered as set forth in Section 3.1(b) and
continuing until that date which is forty-eight (48) months after the Closing
Date, if a Crow Family Entity receives a bona fide third party offer to sell,
convey, ground lease or otherwise transfer an Interest, or if Seller otherwise
intends to market, sell, convey, ground lease or otherwise transfer an Interest,
it shall first deliver to Patriot OP written notice ( the "Offer Notice")
thereof and Patriot OP shall have a Right of First Offer (herein so called) to
purchase such Interest on the following terms and conditions:
(i) Patriot OP shall have a period of thirty (30) days following
receipt of the Offer Notice to negotiate a purchase and sale agreement
for the Interest at a price and on other terms and conditions as are
acceptable to the Crow Family Entity and Patriot OP. Patriot OP shall
have the exclusive right to negotiate with the Crow Family Entity
during this thirty (30) day period. In the event Patriot OP and the
Crow Family Entity enter into a purchase and sale agreement during
this period, Patriot OP shall upon execution thereof, deposit with an
escrow agent reasonably satisfactory to Patriot OP and the Crow Family
Entity the Deposit, which shall be held in accordance with the
applicable provisions of such purchase and sale agreement. The terms
and conditions of such purchase and sale agreement shall otherwise be
(A) substantially on the terms and conditions set forth in the
Purchase and Sale Agreement for the applicable Property, if any, and
(B) for Bristol, on terms and conditions substantially similar to
those for the Purchase and Sale Agreements for the Final
14
Properties. The closing shall occur within sixty (60) days after
execution of the purchase and sale agreement.
(ii) In the event Patriot OP and the Crow Family Entity do not
agree to the terms of a purchase and sale agreement within such thirty
(30) day period, the Crow Family Entity shall be entitled to sell,
convey, ground lease or otherwise transfer the Interest; provided,
however, that such sale, conveyance, ground lease or other transfer
does not result in a net economic return to the Crow Family Entity of
less than 92.5% of the net economic return to the Crow Family Entity
had the Crow Family Entity accepted Patriot OP's last written offer
submitted during the thirty (30) day negotiation period and such sale,
conveyance, ground lease or other transfer is closed within two
hundred seventy (270) days following the expiration of such thirty
(30) day period and is not otherwise on other economic terms and
conditions more favorable in any material respect to the purchaser,
grantee, lessee or other transferee than those last offered by Patriot
OP in writing. If the Crow Family does not so transfer the Interest
within such 270 day period, Patriot OP's rights pursuant to this Right
of First Offer shall be revived.
(iii) In the event that, prior the expiration of such 270 day
period, the Crow Family Entity receives a bona fide third party
written offer to sell, convey, ground lease or otherwise transfer the
Interest, whereby the economic return to the Crow Family Entity is
less than 92.5% of the net economic return to the Crow Family Entity
had the Crow Family Entity accepted Patriot OP's last written offer
during the 30 day period or is otherwise on other economic terms and
conditions more favorable in any material respect to the purchaser
than those last offered in writing by Patriot OP during the 30 day
period, that such Crow Family Entity intends to accept, such Crow
Family Entity shall provide notice to Patriot OP of such offer
together with a true and correct copy thereof. Patriot OP shall then
have the right to elect to purchase the Interest upon the same terms
and conditions as are set forth in such offer by delivering written
notice of such election to the Crow Family Entity within five (5)
Business Days after receipt of the Crow Family Entity's notice. If
Patriot OP so elects to purchase the Interest, the parties shall
negotiate and enter into a definitive purchase and sale agreement
within ten (10) Business Days incorporating the terms of such offer
and which shall require Patriot OP to deliver the Deposit to an escrow
agent reasonably satisfactory to Patriot OP and the Crow Family
Entity. The closing shall occur within sixty (60) days after
execution of the purchase and sale agreement. Such purchase and sale
agreement shall otherwise be (A) substantially on the terms and
conditions set forth in the Purchase and Sale Agreement for the
applicable Property, if any, and (B) for Bristol, on terms and
conditions substantially similar to those for the Purchase and Sale
Agreements for the Final Properties. If Patriot OP does
15
so elect to purchase the Interest within such five (5) Business Day
period or does not timely enter into the purchase and sale agreement,
the Crow Family Entity shall be entitled to sell, convey, ground lease
or otherwise transfer the Interest; provided, however, such sale,
conveyance, ground lease or other transfer does not result in a net
economic return to the Crow Family Entity of less than 92.5% of the
net economic return to the Crow Family Entity had Patriot OP accepted
the offer under this clause (iii) and is not otherwise on other
economic terms and conditions more favorable in any material respect
to the purchaser, grantee, lessee or other transferee and such sale,
conveyance or other transfer is closed within 270 days. If the Crow
Family Entity does not so transfer the Interest within such 270 day
period, Patriot OP's rights pursuant to this Right of First Offer
shall be revived.
(iv) The Right of First Offer described in this Section 3.1(d)
shall not apply to any sale, conveyance, ground lease or other bona
fide transfer of an Interest to members of ▇▇▇▇▇▇▇ ▇▇▇▇'▇ family
trusts established for any one or more of the foregoing persons'
benefit, Affiliates of the foregoing parties, or Affiliates of the
applicable Crow Family Entity, in each case as long as the Right of
First Refusal continues to be binding on such transferees.
(e) Palm Springs Management Contract. The Crow Family Entity that
--------------------------------
owns Palm Springs shall use its commercially reasonable good faith efforts to
cause the Management Contract for Palm Springs to be extended as described in
Section 4.2(b) and shall thereafter use its commercially reasonable good faith
efforts to cause such Management Contract to be continually renewed for a period
of six years with Wyndham, its successor pursuant to the Wyndham Merger, or at
its election, an Affiliate thereof, as manager.
(f) Partner and Lender Consents. Each Crow Family Entity agrees to
---------------------------
use its commercially reasonable good faith efforts diligently to obtain the
Requisite Consents required for its consummation of the transactions
contemplated under the applicable Purchase and Sale Agreement and hereunder.
ARTICLE IV - CONDITIONS TO CLOSING
4.1 Conditions to the Obligations of Patriot OP and the Crow Family
---------------------------------------------------------------
Entities. The obligations of the Crow Family Entities and Patriot OP to
--------
consummate the transactions contemplated hereunder are subject to the
satisfaction or waiver by Patriot OP and the Crow Family Entities, on or prior
to the Closing, of each of the conditions set forth below.
(a) CJC Merger. The CJC Merger shall be consummated.
----------
16
(b) Wyndham Merger. The Wyndham Merger shall be consummated
--------------
concurrently with the Closing.
(c) NOI Basket. The NOI attributable to the Final Properties shall be
----------
no less than 65% of the NOI attributable to all of the Properties.
4.2 Conditions to Patriot OP's Obligations. The obligation of Patriot OP
--------------------------------------
to consummate the transactions contemplated hereunder shall be subject to the
satisfaction or waiver, in writing, by Patriot OP, on or prior to the Closing
Date, of each of the conditions set forth below.
(a) Performance of Obligations. Each Final Crow Family Entity shall
--------------------------
have fully complied in all material respects with all of its respective
obligations hereunder.
(b) Management Contracts. An amendment to the management contract
--------------------
with respect to Anatole, on terms in accordance with Schedule II hereof in all
-----------
material respects, shall have been executed and the Management Contract for Palm
Springs shall have been extended to the maximum term that may be effected
without non-Crow Family Entity third-party consent.
(c) Lease Termination Agreement. The actions described in that
---------------------------
agreement, by and among Crow Hotel Lessee, Inc., a Texas corporation
("Greenspoint Lessee"), and Patriot OP, attached hereto as Exhibit A ("Lease
---------
Termination Agreement"), shall have occurred.
(d) Cooperation of Greenspoint Partner. Each Person that received
----------------------------------
limited partnership interests in Patriot OP ("Greenspoint Partner") pursuant to
the consummation of the transactions in that certain Contribution Agreement by
and between Houston Greenspoint Hotel Associates, L.P. and PAH Acquisition
Corporation, as assigned to Patriot OP ("Greenspoint Agreement") shall have
agreed (i) to cooperate and do all administrative and ministerial acts as may be
reasonably requested by Patriot OP to effect a Private Label REIT prior to or
upon Closing and (ii) in the event a Private Label REIT shall not be utilized,
to sell all of its interests in Patriot OP to such Person or Persons as Patriot
OP shall have designated no later than Closing (subject (x) to Patriot OP
satisfying its indemnification obligation under the Greenspoint Agreement and
(y) to the condition that the collapse of Greenspoint Lessee can be effected
without terminating or otherwise adversely affecting the additional
consideration payable under Section 2.5 or 7.3 of the Greenspoint Agreement).
ARTICLE V - TERMINATION OF AGREEMENT
5.1 Termination. This Agreement may be terminated at any time at or prior
-----------
to the Closing:
17
(a) by mutual agreement of Patriot OP and a majority of the Crow
Family Entities (excluding owners of the Rejected Properties);
(b) by Patriot OP, if there have been material breaches by a majority
of the Crow Family Entities of any representation, warranty, covenant or
agreement in this Agreement on the part of such Crow Family Entities, or if
material representations of a majority of the Crow Family Entities shall fail to
be true in all material respects, in either case, only if after written notice
thereof to each of such Crow Family Entities, such Crow Family Entities fail to
cure such breaches or failures within 15 Business Days after delivery of all
such notices in sufficient number such that a majority of the Crow Family
Entities shall not be in breach or have material representations that fail to be
true in all material respects (except that no cure period shall be provided for
such foregoing breaches by the Crow Family Entities which by their nature or
under the circumstances cannot be cured);
(c) by a majority of the Crow Family Entities (excluding owners of
Rejected Properties), if there has been a material breach by Patriot OP of any
representation, warranty, covenant or agreement set forth in this Agreement on
the part of Patriot OP, or if any material representation of Patriot OP shall
fail to be true in all material respects, in either case which Patriot OP fails
to cure within 15 business days after written notice thereof from the Crow
Family Entities (except that no cure period shall be provided for a breach by
Patriot OP which by its nature or under the circumstances cannot be cured);
(d) by Patriot OP, if all of its conditions for Closing in Sections
4.1 and 4.2, and by a majority of the Final Crow Family Entities if all of such
majority's conditions for Closing in Section 4.1, shall not have been satisfied
or waived on or before the later of (i) the time that the Wyndham Merger
Agreement is terminated under Section 10.1 thereof and (ii) in the event the
Wyndham Merger Agreement shall have been terminated, 5:00 p.m., Dallas time, on
the Closing Date, other than as a result of a breach of this Agreement by the
terminating party;
(e) by either Patriot OP or a majority of the Crow Family Entities
(excluding owners of Rejected Properties) if the Board of Directors of New
Patriot fails to ratify the Wyndham Merger and, as a consequence, the Wyndham
Merger Agreement is terminated;
(f) by either Patriot OP or a majority of the Crow Family Entities
(excluding owners of Rejected Properties) if the New Patriot stockholders fail
to approve the Wyndham Merger and, as a consequence, the Wyndham Merger
Agreement is terminated; and
(g) by Patriot OP in the event that the Wyndham Merger Agreement shall
be terminated pursuant to Section 10.1(h) thereof.
18
5.2 Notice of Termination. Any termination of this Agreement under
---------------------
Section 5.1 above will be effective by the delivery of written notice by the
terminating party to the other party or parties hereto.
5.3 Effect of Termination. In the case of any termination of this
---------------------
Agreement as provided in this Article 5, this Agreement and the Related
Agreements shall be of no further force and effect (except as provided to the
contrary in Sections 5.4 and 6.10), but nothing herein shall relieve any party
from liability for any breach of this Agreement.
5.4 Termination Fees.
----------------
(a) If this Agreement is terminated pursuant to Section 5.1(f), then
Patriot OP shall reimburse the Crow Family Entities, after receiving appropriate
invoices therefor, (by wire transfer of immediately available funds) for
reasonable expenses incurred and paid by the Crow Family Entities in connection
with this Agreement an amount equal to the lesser of $3,000,000 and the sum of
such expenses. The Crow Family Entities shall not be entitled to receive any
payment under this Section 5.4(a) if, at the time of delivery of the applicable
notice of termination pursuant to Section 5.2, it was reasonably likely that the
condition set forth in Section 4.1(c) would not be satisfied.
(b) If this Agreement is terminated by the Crow Family Entities
pursuant to Section 5.1(e), Patriot OP shall pay to the Crow Family Entities an
amount of $25,000,000 (by wire transfer in immediately available funds) within
two Business Days of such termination.
(c) In the event that (i) this Agreement is terminated as a
consequence of the termination of the Wyndham Merger Agreement, (ii) Wyndham is
required to pay any amount pursuant to Section 10.3(a) of the Wyndham Merger
Agreement and (iii) a Terminated Merger Election shall not have been made (A) by
the Crow Family Entities whose Properties are not Rejected Properties and
Patriot OP shall have made a Terminated Merger Election, then the Crow Family
Entities shall pay to Patriot OP an amount of $11,000,000 (by wire transfer in
immediately available funds) and (B) by Patriot OP and a Terminated Merger
Election shall have been made by a majority of the Crow Family Entities
(excluding owners of Rejected Properties), then Patriot OP shall pay to the Crow
Family Entities an amount of $11,000,000 (by wire transfer in immediately
available funds), in either event, within two Business Days of the date that
this Agreement is terminated.
(d) The parties' obligations to pay the termination fees set forth in
this Section 5.4 are in lieu of any damages or any other payment which such
party might otherwise be obligated to pay to the other party as a result of any
termination. Any payment by the Crow Family Entities pursuant to Section 5.4
shall be paid by the Crow Family Entities in the relative ratios of the
Allocated Purchase Prices of the Properties set forth next to the Crow Family
Entities' names on Schedule I hereto. Any payments made by Patriot OP pursuant
----------
to
19
section 5.4 shall be made to the Crow Family Entities in the relative ratios of
the Allocated Purchase Prices of the Properties set forth next to the Crow
Family Entities' names on Schedule I hereto. Patriot OP and the Crow Family
----------
Entities agree that, in view of the nature of the issues likely to arise in the
event of such a termination, it would be impracticable or extremely difficult to
fix the actual damages resulting from such termination and proving actual
damages, causation and foreseeability in the case of such termination would be
costly, inconvenient and difficult. In requiring a party to pay a termination
fee as set forth herein, it is the intent of the parties to provide, as of the
date of this Agreement, for a liquidated amount of damages to be paid by such
party to the other party. Such liquidated amount shall be deemed full and
adequate damages for such termination and is not intended by either party to be
a penalty.
ARTICLE VI - MISCELLANEOUS
6.1 Marketing. The Crow Family Entities agree not to offer or market the
---------
Properties for sale during the term of this Agreement or negotiate for or seek
any offer to purchase the Properties with any Person other than Patriot OP and
its Affiliates other than Rejected Properties and other than Properties marketed
and offered in accordance with Article III.
6.2 Entire Agreement; No Amendment. This Agreement and the Related
------------------------------
Agreements represent the entire agreement among the parties hereto. It is
expressly understood that no representations, warranties, guarantees or other
statements shall be valid or binding upon a party unless expressly set forth in
this Agreement or incorporated herein. It is further understood that, except
for the Related Agreements, any prior agreements or understandings between or
among any of the parties have merged in this Agreement, which alone fully
expresses all agreements of the parties hereto and supersedes all such prior
agreements and understandings. This Agreement may not be amended, modified or
otherwise altered except by a written agreement signed by the party or parties
hereto against whom enforcement is sought. It is agreed that no obligation
under this Agreement which by its terms is to be performed or continue to be
performed after Closing and no provision of this Agreement which is expressly to
survive Closing shall merge upon Closing, but shall survive Closing.
6.3 Notices. Any notice, communication or writing required under or
-------
otherwise delivered in connection with this Agreement to any of the parties
hereto will be delivered to such party at the following address:
20
If to the Crow Family Entities to:
▇/▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
Crow Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. and ▇▇▇▇▇ ▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to Patriot OP to:
c/o Patriot American Hospitality, Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman and Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP
Exchange Place
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, P.C.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy to:
Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇, P.C. and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
21
Each notice shall be in writing and shall be sent to the party to receive it,
postage prepaid by certified mail, return receipt requested, by a nationally
recognized overnight courier service that provides tracking and proof of receipt
or by facsimile transmission followed by physical delivery of such notice in
accordance with the foregoing. Notices shall be deemed delivered upon receipt.
6.4 No Assignment. Except as provided in the following sentence, neither
-------------
this Agreement nor any of the rights or obligations hereunder may be assigned by
any party hereto without the prior written consent of the other parties.
Patriot OP may, without such consent, (i) assign its rights hereunder to any
lender as collateral security and/or (ii) assign its rights and obligations
hereunder to BMOC or an Affiliate of either of them, but no such assignment
shall relieve Patriot OP of its obligations and liabilities hereunder. Any
purported assignment in contravention of the foregoing shall be null and void
and have no effect.
6.5 Governing Law. The laws of the State of Texas, shall govern the
-------------
validity, enforcement and interpretation of this Agreement without giving effect
to the conflict of laws provisions thereof.
6.6 Multiple Counterparts. This Agreement may be executed in multiple
---------------------
counterparts. If so executed, all of such counterparts shall constitute but one
agreement.
6.7 Further Assurances. From and after the date of this Agreement and
------------------
after the Closing, the parties hereto shall take such further actions and
execute and deliver such further documents and instruments as may be reasonably
necessary to provide to the respective parties hereto the benefits intended to
be afforded hereby, including, without limitation, all books and records
relating to the Final Properties and any changes in the addresses of the
parties.
6.8 Miscellaneous. Whenever herein the singular number is used, the same
-------------
shall include the plural, and the plural shall include the singular where
appropriate, and words of any gender shall include the other genders when
appropriate. The headings of the Articles and the Sections contained in this
Agreement are for convenience only and shall not be taken into account in
determining the meaning of any provision of this Agreement. The words "hereof"
and "herein" refer to this entire Agreement and not merely the Section in which
such words appear. If the last day for performance of any obligation hereunder
is not a Business Day, then the deadline for such performance or the expiration
of the applicable period or date shall be extended to the next Business Day.
6.9 Invalid Provisions. If any provision of this Agreement is held to be
------------------
illegal, invalid or unenforceable under present or future laws, such provision
shall be fully severable, this Agreement shall be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part of
this Agreement, and the remaining provisions of this Agreement shall remain in
full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance from this Agreement.
22
6.10 Confidentiality; Publicity. Each of the Crow Family Entities and
--------------------------
Patriot OP agrees (i) not to record this Agreement in any public real estate
registry and (ii) to maintain in confidence through the Closing, all
confidential material and information received from any other party hereof or
otherwise, regarding the Properties, Patriot OP, BMOC or their Affiliates, or
any Crow Family Entity, all of which shall be deemed "Evaluation Material" as
such term is defined in those letter agreements dated January 27, 1997 between
Patriot and Wyndham ("Confidentiality Agreements"). In the event this Agreement
is terminated, each party hereof shall either destroy or return to the
applicable Person all copies of documents delivered to such party by such
Person. Each Crow Family Entity and Patriot OP further agree that nothing in
this Section 6.10 shall prevent any of them from disclosing or accessing any
information otherwise deemed confidential under this Section 6.10 to any of
their respective agents, employees, counsel and other third parties to the
extent reasonably necessary to perform due diligence and complete the
transactions contemplated hereby. Notwithstanding anything to the contrary
contained herein, (i) Patriot OP shall have the right, subject to the consent of
each Crow Family Entity with respect to the Property it owns (which consent
shall not be unreasonably withheld), to determine the form, timing and substance
of, and to issue, all publicity concerning, the transactions contemplated by
this Agreement, (ii) nothing in this Section 6.10 shall be construed in a manner
that is inconsistent with the provisions of the Confidentiality Agreements and
(iii) nothing in this Section 6.10 shall prevent another party hereof from
disclosing or accessing any information otherwise deemed confidential under this
Section 6.10 either (A) in connection with such other party's enforcement of its
rights hereunder or (B) pursuant to any stock exchange regulations or legal
requirement, including, without limitation, any securities laws, any reporting
requirement or any accounting or auditing standard.
6.11 Time of Essence. Time is of the essence with respect to this
---------------
Agreement.
6.12 Costs and Expenses. Except as may be set forth to the contrary
------------------
herein, each party hereof shall pay and be solely responsible for all costs,
fees and expenses that it may incur in its performance of its obligations
hereunder.
6.13 Enforcement of Agreement. The parties hereto agree that irreparable
------------------------
damage would occur in the event that any provision of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions and other equitable remedies to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any Texas Court,
this being in addition to any other remedy to which they are entitled at law or
in equity. Any requirements for the securing or posting of any bond with
respect to such remedy are hereby waived by each of the parties hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Omnibus Purchase
and Sale Agreement as an instrument under seal as of the date and year first
above written.
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P., a Virginia limited partnership
By: PAH GP, Inc., a Virginia corporation, its
general partner
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
FAMILY ENTITIES:
---------------
HOTEL BEL AGE ASSOCIATES, L.P., a Texas limited
partnership
By: Hotel Bel Age Partners, L.P., a Texas limited
partnership, its general partner
By: Crow Family, Inc., its general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
ITASCA HOTEL COMPANY, an Illinois limited
partnership
By: Crow-Itasca Hotel Company, a Texas limited
partnership, its general partner
By: TCF Hotels L.P., a Texas limited
partnership, its general partner
By: Mill Spring Holdings, Inc., its
general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
25
WHC-LG HOTEL ASSOCIATES, L.P., a Texas limited
partnership
By: WHC-LG, Inc., its general partner
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
NOVI GARDEN HOTEL ASSOCIATES, a Texas general
partnership
By: Novi Garden Hotel Partners Limited
Partnership, a Texas limited partnership, its
general partner
By: Novi Garden Hotel Corporation, its
general partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, general partner
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, general partner
PLEASANTON HOTEL ASSOCIATES, LTD., a Texas limited
partnership
By: CF Hotel, Inc., its general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
26
CLC LIMITED PARTNERSHIP, a Texas limited
partnership
By: LB-4, Inc., its general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
MTD ASSOCIATES, a Texas general partnership
By: MTD Partners, a Texas general partnership,
its general partner
By: TCF Hotels L.P., a Texas limited
partnership, its general partner
By: Mill Spring Holdings, Inc., its
general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, its general partner
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇, its general partner
27
HOTEL AND CONVENTION CENTER
PARTNERS I, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS II, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS III, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS IV, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS V, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS VI, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS VII, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS VIII, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS XI, LTD.
HOTEL AND CONVENTION CENTER
PARTICLENERS X, LTD.
HOTEL AND CONVENTION CENTER
PARTNERS XI, LTD.
By: CPS, Ltd., a Texas limited partnership, the
general partner for each of the eleven
California limited partnerships listed above
By: Palm Springs Co., a California
corporation, its general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
CONVENTION CENTER BOULEVARD HOTEL,
LIMITED, a Louisiana partnership in commendam
By: CFP-Riverfront Hotel Partners, L.P., a Texas
limited partnership, its general partner
By: Crow Family, Inc., its general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
28
WOOD ▇▇▇▇ GARDEN HOTEL PARTNERSHIP, a Texas
general partnership
By: TCF Hotels L.P., a Texas limited partnership,
its general partner
By: Mill Spring Holdings, Inc., its general
partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
By: CBP Wood ▇▇▇▇ Partnership, a Texas general
partnership, its general partner
By: TCF Hotels L.P., a Texas limited
partnership, its general partner
By: Mill Spring Holdings, Inc., its
general partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Title: Vice President
FRANKLIN PLAZA ASSOCIATES LIMITED
PARTNERSHIP, a Texas limited partnership
By: Franklin Plaza Hotel Corporation, its general
partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ASSOCIATES, a Pennsylvania limited
partnership
By: HRC No. 1, Inc., a Texas corporation, its
general partner
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: President
BRISTOL HOTEL ASSOCIATES, LTD.,
a Texas limited partnership
By: Bristol Hotel Partners, Ltd., a Texas limited
partnership, its general partner
By: Washington BHC, Inc., a Texas corporation,
its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
30