Exhibit 2
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
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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.
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8. Impact of Amendment. All provisions of the Securities Purchase
Agreement and the exhibits thereto not amended by this Amendment shall remain in
full force and effect.
[Remainder of Page Intentionally Left Blank]
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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:
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Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WYNDHAM INTERNATIONAL, INC.
By:
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Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By:
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Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its
General Partner
By:
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Name:
Title:
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:
---------------------------------
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:
Address: 1301 Avenue of the
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇ EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
-----------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
-----------------------------
Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇ CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
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Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
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THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
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Name:
Title:
Address: ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
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BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its
General Partner
By:
---------------------------------
Name:
Title:
Address: ▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
By:
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Name:
Title:
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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