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EXHIBIT 10.37
RATIFICATION AGREEMENT
This RATIFICATION AGREEMENT (this "Agreement"), is made and entered
into as of July 24, 1997 between Patriot American Hospitality Operating
Company, a Delaware corporation and formerly known as Bay Meadows Operating
Company ("Patriot Operating Company"), Patriot American Hospitality, Inc., a
Delaware corporation which operates as a real estate investment trust ("New
Patriot"), Wyndham Hotel Corporation, a Delaware corporation ("Wyndham") and CF
Securities, L.P., a Texas limited partnership (the "Principal Stockholder").
RECITALS
WHEREAS, Patriot American Hospitality, Inc., a Virginia corporation
and the predecessor by merger to New Patriot ("Patriot"), and Wyndham entered
into an Agreement and Plan of Merger, dated as of April 14, 1997 (the "Merger
Agreement"), pursuant to which Wyndham agreed to merge with and into Patriot
(the "Merger");
WHEREAS, Patriot and the Principal Stockholder entered into a Stock
Purchase Agreement dated as of April 14, 1997 (the "Stock Purchase Agreement"),
pursuant to which Patriot agreed to purchase and Principal Stockholder agreed
to sell all of the Principal Stockholder's shares of Wyndham Common Stock (as
defined below) upon the terms and conditions stated therein immediately prior
to the consummation of the Merger (the "Stock Purchase");
WHEREAS, New Patriot (the successor by merger to Patriot and formerly
named "California Jockey Club"), Patriot and Patriot Operating Company entered
into an Agreement and Plan of Merger, dated as of February 24, 1997 (the
"Business Combination Agreement"), pursuant to which Patriot, New Patriot and
Patriot Operating Company agreed to effect a business combination among
Patriot, New Patriot and Patriot Operating Company (the "Business
Combination");
WHEREAS, the Business Combination has been consummated, and as a
result thereof Patriot has merged with and into New Patriot, with New Patriot
being the surviving company in the Merger;
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WHEREAS, as a result of the Business Combination, New Patriot has
succeeded to the rights and obligations of Patriot under the Merger Agreement
and the Stock Purchase Agreement;
WHEREAS, New Patriot and Wyndham have executed and delivered a
Ratification Agreement of even date herewith (the "Patriot Ratification
Agreement") pursuant to which New Patriot has expressly agreed with Wyndham to
ratify and approve the Merger, the Merger Agreement and certain Ancillary
Agreements, and to perform the covenants and agreements of Patriot thereunder;
WHEREAS, the shares of common stock, par value $.01 per share, of New
Patriot (the "New Patriot Stock") and the shares of common stock, par value
$.01 per share, of Patriot Operating Company (the "Patriot Operating Company
Stock") are paired and transferrable and traded only in combination as a single
unit (the "Paired Shares") on the New York Stock Exchange pursuant to the
Pairing Agreement dated as of February 17, 1983 between New Patriot and Patriot
Operating Company, as amended (the "Pairing Agreement");
WHEREAS, the Merger Agreement contemplates that the shares of common
stock, par value $.01 per share, of Wyndham (the "Wyndham Common Stock") will
be converted into cash and/or Paired Shares pursuant to the terms of the Merger
Agreement and the Stock Purchase Agreement contemplates that the Principal
Stockholder will receive cash, Paired Shares and/or unpaired shares of a series
of preferred stock of Patriot (the "Patriot Unpaired Stock") pursuant to the
terms of the Stock Purchase;
WHEREAS, the Merger Agreement and the Stock Purchase Agreement also
contemplate that Patriot Operating Company will execute and deliver this
Agreement, pursuant to which Patriot Operating Company will make certain
representations and warranties to Wyndham and the Principal Stockholder and
enter into certain covenants and agreements with New Patriot, Wyndham and the
Principal Stockholder in order to effectuate the Merger and the Stock Purchase
and to carry out the terms of the Merger Agreement and the Stock Purchase
Agreement and transactions contemplated thereby;
WHEREAS, pursuant to the Merger Agreement, Patriot Operating Company
will enter into the Wyndham/Patriot Operating Company Subscription Agreement
with Wyndham immediately prior to the closing of the Merger, pursuant to which
Wyndham will agree to pay for, and Patriot Operating Company will issue
directly to the holders of Wyndham Common Stock, a number of shares of Patriot
Operating Company Stock equal to the number of shares of Patriot Stock to be
issued to such holders pursuant to the Merger;
WHEREAS, the boards of directors of New Patriot, Wyndham and Patriot
Operating Company have each determined that the Merger between New Patriot and
Wyndham, in which
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the outstanding shares of Wyndham Stock will be converted into Paired Shares
and/or cash, is in the best interests of their respective companies and
stockholders and presents an opportunity for their respective companies to
achieve long-term strategic and financial benefits, and accordingly have agreed
to effect the transactions provided for in the Merger Agreement and herein upon
the terms and subject to the conditions set forth herein, and the board of
directors of Patriot Operating Company has made a similar determination with
respect to the Stock Purchase;
WHEREAS, it is intended that the Stock Purchase by Patriot and the
Merger provided for herein be treated as an integrated transaction that, for
federal income tax purposes, qualifies as a reorganization within the meaning
of Section 368(a) of the Internal Revenue Code of 1986, as amended (the "Code")
and pursuant to which the consideration received by all of the stockholders of
Wyndham shall be tax-free to such stockholders to the extent such consideration
consists of Patriot Unpaired Stock and, to the extent consisting of Patriot
Stock, Paired Shares of Purchase Stock and Patriot Operating Company Stock),
and for financial accounting purposes shall be accounted for as a "purchase";
WHEREAS, the boards of directors of New Patriot and Wyndham have
received fairness opinions from their financial advisors, and the Special
Committee of the Board of Directors of Wyndham has received a fairness opinion
from its financial advisor, relating to the transactions contemplated hereby
and by the Merger Agreement as more fully described herein and therein; and
WHEREAS, Patriot Operating Company desires to make certain
representations, warranties, covenants and agreements in connection with the
Merger and the Stock Purchase.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, and in
order to induce New Patriot and Wyndham to proceed with the Merger and the
other transactions contemplated by the Merger Agreement, and to induce Patriot
Operating Company and the Principal Stockholder to proceed with the Stock
Purchase and the other transactions contemplated by the Stock Purchase
Agreement, the parties hereto hereby agree as follows:
ARTICLE 1. REPRESENTATIONS AND WARRANTIES OF PATRIOT OPERATING
COMPANY
Patriot Operating Company represents and warrants to Wyndham and the
Principal Stockholder as follows:
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1.1 Existence, Good Standing, Authority. Patriot Operating Company is
a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has all requisite corporate power and
authority to own, operate, lease and encumber its properties and to carry on
its business as now conducted.
1.2 Authorization, Validity and Effect of Agreement. Patriot Operating
Company has the requisite power and authority to enter into the transactions
contemplated hereby and to execute and deliver this Agreement and the other
Ancillary Agreements to which it is or will be a party. The Board of Directors
of Patriot Operating Company has approved this Agreement, the Merger, the
Merger Agreement, the Patriot Operating Company Stock Issuance, the Pairing
Agreement Amendment, the Patriot Operating Company Charter Amendment, the Stock
Purchase Agreement (including the issuance of Patriot Operating Company Stock
in connection with the Paired Shares issuable by Patriot and Patriot Operating
Company upon conversion of Unpaired Patriot Stock upon the terms described in
Exhibit B thereto), the Voting Agreements, the Registration Rights Agreement
and the other Ancillary Agreements to which it is a party and the transactions
contemplated hereby and thereby, and has agreed to recommend that the holders
of Patriot Operating Company Stock authorize and approve the Patriot Operating
Company Stock Issuance, the Patriot Operating Company Charter Amendment, the
Pairing Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE, the Stock
Purchase Agreement, at the Patriot Operating Company stockholders' meeting
which will be held in accordance with the provisions of Section 8.3 of the
Merger Agreement. As of the date hereof, all of the directors and executive
officers of Patriot Operating Company have indicated that they presently intend
to vote all shares of Patriot Operating Company Stock which they own to approve
the Patriot Operating Company Stock Issuance, the Patriot Operating Company
Charter Amendment, the Pairing Agreement Amendment and, if stockholder approval
of the Stock Purchase Agreement is required under applicable law or the rules
of the NYSE, the Stock Purchase Agreement, at the Patriot Operating Company
stockholders' meeting. Subject to the approval of the Patriot Operating Company
Stock Issuance, the Patriot Operating Company Charter Amendment, the Pairing
Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE , the Stock
Purchase Agreement, by the requisite vote of the stockholders of Patriot
Operating Company, the execution by Patriot Operating Company of this
Agreement, and the other Ancillary Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, have been
duly authorized by all requisite corporate action on the part of Patriot
Operating Company. This Agreement constitutes, and the other Ancillary
Agreements to which it will become a party (when executed and delivered) will
constitute, the valid and legally binding obligations of Patriot Operating
Company, enforceable against Patriot Operating Company in accordance with their
respective terms, subject to applicable bankruptcy, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
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1.3 Patriot Operating Company Stock.
(a) The Patriot Operating Company Stock to be issued in connection
with the Merger and the Merger Agreement, when issued in accordance with the
terms of the Merger Agreement, will have been duly and validly authorized by
all necessary corporate action on the part of Patriot Operating Company. The
Patriot Operating Company Stock to be issued in connection with the Merger and
the Merger Agreement, when issued in accordance with the terms of the Merger
Agreement, will be validly issued, fully paid, nonassessable and free of
preemptive rights.
(b) The Patriot Operating Company Stock to be issued in connection
with the Stock Purchase and the Stock Purchase Agreement (including the Patriot
Operating Company Stock issuable in connection with the Paired Shares issuable
by Patriot and Patriot Operating Company upon conversion of Unpaired Patriot
Stock upon the terms described in Exhibit B thereto), when issued in accordance
with the terms of the Stock Purchase Agreement, will have been duly and validly
authorized by all necessary corporate action on the part of Patriot Operating
Company. The Patriot Operating Company Stock to be issued in connection with
the Stock Purchase and the Stock Purchase Agreement (including the Patriot
Operating Company Stock issuable in connection with Paired Shares issuable by
Patriot and Patriot Operating Company upon conversion of Unpaired Patriot Stock
upon the terms described in Exhibit B thereto), when issued in accordance with
the terms of the Stock Purchase Agreement (including Exhibit B thereto) will be
validly issued, fully paid, nonassessable and free of preemptive rights.
ARTICLE 2. REPRESENTATIONS AND WARRANTIES OF NEW PATRIOT
New Patriot represents and warrants to Patriot Operating Company,
Wyndham and the Principal Stockholder as follows:
2.1 Existence, Good Standing, Authority. New Patriot is a corporation
duly organized, validly existing and in good standing under the laws of the
State of Delaware and has all requisite corporate power and authority to own,
operate, lease and encumber its properties and to carry on its business as now
conducted.
2.2 Authorization, Validity and Effect of Agreement. New Patriot has
the requisite power and authority to enter into the transactions contemplated
hereby and to execute and deliver this Agreement and the other Ancillary
Agreements to which it is or will be a party. The Board of Directors of New
Patriot has approved this Agreement and the Merger, and has ratified, confirmed
and adopted the Merger Agreement, the Pairing Agreement Amendment, the Stock
Purchase Agreement, the Ancillary Agreements to which it is a party and the
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transactions contemplated hereby and thereby, and has recommended that the
holders of New Patriot Stock authorize and approve the Merger Agreement, the
Patriot Ratification Agreement, the Pairing Agreement Amendment and, if
stockholder approval of the Stock Purchase Agreement is required under
applicable law or the rules of the NYSE, the Stock Purchase Agreement, at the
Patriot stockholders' meeting which will be held in accordance with the
provisions of Section 8.3 of the Merger Agreement. As of the date hereof, all
of the directors and executive officers of New Patriot have indicated that they
presently intend to vote all shares of New Patriot Stock which they own to
approve the Merger Agreement, the Patriot Ratification Agreement, the Pairing
Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE, the Stock
Purchase Agreement, at the Patriot stockholders' meeting. Subject to the
approval of the Merger Agreement, the Patriot Ratification Agreement, the
Pairing Agreement Amendment and, if stockholder approval of the Stock Purchase
Agreement is required under applicable law or the rules of the NYSE, the Stock
Purchase Agreement, by the requisite vote of the stockholders of New Patriot,
the execution by New Patriot of this Agreement, the Merger Agreement and the
other Ancillary Agreements to which it is a party, and the consummation of the
transactions contemplated hereby and thereby have been duly authorized by all
requisite corporate action on the part of New Patriot. This Agreement and the
Merger Agreement constitute, and the other Ancillary Agreements to which it is
or will become a party (when executed and delivered) will constitute, the valid
and legally binding obligations of New Patriot, enforceable against New Patriot
in accordance with their respective terms, subject to applicable bankruptcy,
moratorium or other similar laws relating to creditors' rights and general
principles of equity.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF WYNDHAM
Wyndham represents and warrants to Patriot Operating Company, New
Patriot and the Principal Stockholder as follows:
3.1 Existence, Good Standing, Authority. Wyndham is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power and authority to own, operate,
lease and encumber its properties and to carry on its business as now
conducted.
3.2 Authorization, Validity and Effect of Agreement. Wyndham has the
requisite power and authority to enter into the transactions contemplated
hereby and to execute and deliver this Agreement and the other Ancillary
Agreements to which it is or will be a party. The Board of Directors of Wyndham
has approved this Agreement, the Merger, the other Ancillary Agreements to
which it is a party and the transactions contemplated hereby and thereby, and
has agreed to recommend that the holders of Wyndham Stock authorize and
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approve the Merger Agreement and the Patriot Ratification Agreement at the
Wyndham stockholders' meeting which will be held in accordance with the
provisions of Section 8.3 of the Merger Agreement. In connection with the
foregoing, the Board of Directors of Wyndham has taken such action and votes as
are necessary on its part to render the provisions of Section 203 of the
Delaware General Corporation Law (the "DGCL") and all other applicable takeover
statutes inapplicable to this Agreement, the Merger Agreement, the Merger, the
Stock Purchase Agreement, the Stock Purchase and the transactions contemplated
hereby and thereby and by the other Ancillary Agreements. As of the date
hereof, all of the directors and executive officers of Wyndham have indicated
that they presently intend to vote all shares of Wyndham Common Stock which
they own to approve the Merger Agreement and the Patriot Ratification Agreement
at the Wyndham stockholders' meeting. Subject to the approval of the Merger
Agreement and the Patriot Ratification Agreement by the requisite vote of the
stockholders of Wyndham, the execution by Wyndham of this Agreement, the Merger
Agreement and the other Ancillary Agreements to which it is a party, and the
consummation of the transactions contemplated hereby and thereby have been duly
authorized by all requisite corporate action on the part of Wyndham. This
Agreement and the Merger Agreement constitute, and the other Ancillary
Agreements to which it is or will become a party (when executed and delivered)
will constitute, the valid and legally binding obligations of Wyndham,
enforceable against Wyndham in accordance with their respective terms, subject
to applicable bankruptcy, moratorium or other similar laws relating to
creditors' rights and general principles of equity.
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL
STOCKHOLDER
The Principal Stockholder represents and warrants to Patriot Operating
Company, New Patriot and Wyndham as follows:
4.1 Organization and Good Standing. The Principal Stockholder is duly
organized, validly existing and in good standing under the laws of the State of
Texas.
4.2 Power and Authorization. The Principal Stockholder has full legal
right, power and authority to enter into and perform its obligations under this
Agreement and the other agreements and documents required to be delivered by it
hereunder. The execution, delivery and performance by the Principal Stockholder
of this Agreement have been duly authorized by all necessary action on the part
of the Principal Stockholder. This Agreement constitutes the legal, valid and
binding obligation of the Principal Stockholder, enforceable against it in
accordance with its terms.
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ARTICLE 5. COVENANTS AND AGREEMENTS OF PATRIOT OPERATING
COMPANY
5.1 Covenants and Agreements under Merger Agreement. Patriot Operating
Company hereby covenants and agrees with Wyndham and New Patriot that Patriot
Operating Company will be bound by and will perform each covenant and agreement
set forth in the Merger Agreement (including those relating to the assumption
by New Patriot or Patriot Operating Company of Wyndham Stock Options in
accordance with Section 5.2(e) of the Merger Agreement) that by its terms is to
be agreed to, or performed by, Patriot Operating Company to the same extent as
if each such covenant and agreement were set forth herein. Each such covenant
and agreement shall be deemed to be incorporated by reference herein as if set
forth in full in this Agreement.
5.2 Ancillary Agreements. At or prior to the Closing, Patriot
Operating Company shall execute and deliver each of the Ancillary Agreements to
which it is a party that, pursuant to Section 1.4 of the Merger Agreement, is
to be executed and delivered by it at or prior to the Closing.
Contemporaneously with the execution and delivery of this Agreement, Patriot
Operating Company shall execute and deliver the Standstill Agreement, the
Registration Rights Agreement and the Voting Agreements.
5.3 Patriot Operating Company Shares Issuable in Connection with the
Merger. Patriot Operating Company acknowledges and agrees that the shares of
Patriot Operating Company Stock to be issued pursuant to the Wyndham/Patriot
Operating Company Subscription Agreement will be issued in accordance with
Section 5.2(a) of the Merger Agreement to the stockholders of Wyndham in
connection with the Merger and will be paired with the Patriot Stock issued in
the Merger in accordance with the Pairing Agreement and the Wyndham/Patriot
Operating Company Subscription Agreement, and will be transferable and traded
only as a single unit, and that Wyndham shall not at any time become a
stockholder of Patriot Operating Company. The provisions of this Section 5.3
and the Wyndham/Patriot Operating Company Subscription Agreement are intended
to comply with Sections 2(a) and 2(b) of the Pairing Agreement.
5.4 Patriot Operating Company Shares Issuable in Connection with the
Stock Purchase. Patriot Operating Company acknowledges and agrees with the
Principal Stockholder that on the closing date of the Stock Purchase, Patriot
Operating Company shall issue to the Principal Stockholder the shares of
Patriot Operating Company Stock that are issuable in connection with the
issuance of Paired Shares to the Principal Stockholder pursuant to the Stock
Purchase Agreement, that upon conversion of the Unpaired Patriot Stock in
accordance with the terms thereof (as described in Exhibit B thereto) Patriot
Operating Company shall issue to the Principal Stockholder the shares of
Patriot Operating Company Stock that are issuable to the Principal Stockholder
upon such conversion, and that such shares
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of Patriot Operating Company Stock will be paired with the Patriot Stock issued
in the Stock Purchase or upon conversion of the Unpaired Patriot Stock in
accordance with the Pairing Agreement. The provisions of this Section 5.4 and
the Stock Purchase Agreement are intended to comply with Sections 2(a) and 2(b)
of the Pairing Agreement.
5.5 Patriot Operating Company Bylaws. Patriot Operating Company shall
cause its Bylaws as in effect immediately prior to the Effective Time to
contain terms required by and consistent with the Merger Agreement, the Stock
Purchase Agreement and the Cooperation Agreement and terms not otherwise
prohibited from being contained in such bylaws by such agreements.
5.6 Directors and Officers of Patriot Operating Company. Patriot
Operating Company shall take such actions as are necessary such that the Board
of Directors of Patriot Operating Company shall be constituted as provided in
Sections 4.3 and 4.4 of the Merger Agreement, subject to any required approvals
by the stockholders of Patriot Operating Company.
5.7 Further Action. Patriot Operating Company shall, subject to the
fulfillment at or before the Effective Time of each of the conditions set forth
in the Merger Agreement to the obligation of New Patriot to effect the Merger
or the waiver thereof, perform such further acts and execute such documents as
may reasonably be required to effect the Merger, the Patriot Operating Company
Stock Issuance, the Patriot Operating Company Charter Amendment, the Pairing
Agreement Amendment and the transactions contemplated by the Merger Agreement,
the Stock Purchase Agreement, this Agreement and by the other Ancillary
Agreements.
5.8 Expenses. All costs and expenses incurred by Patriot Operating
Company in connection with this Agreement, the Merger Agreement, the Stock
Purchase Agreement and the transactions contemplated hereby and thereby shall
be paid by Patriot Operating Company except to the extent otherwise provided in
Section 8.11 of the Merger Agreement or as otherwise may be agreed to by the
parties. All costs and expenses for professional services rendered in
connection with the transactions contemplated by this Agreement, the Merger
Agreement and the transactions contemplated thereby, including, but not limited
to, investment banking and legal services, will be paid by each party incurring
such costs and expenses.
ARTICLE 6. COVENANTS AND AGREEMENTS OF NEW PATRIOT
New Patriot covenants and agrees with Wyndham, Patriot Operating
Company and the Principal Stockholder that New Patriot will be bound by the
provisions of the Merger Agreement and the Stock Purchase Agreement under which
it is required to render performance to or for the benefit of Patriot Operating
Company, and that New Patriot will
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perform all such obligations in accordance with the terms of the Merger
Agreement and the Stock Purchase Agreement.
ARTICLE 7. COVENANTS AND AGREEMENTS OF WYNDHAM
Wyndham covenants and agrees with Patriot Operating Company, New
Patriot and the Principal Stockholder that Wyndham will be bound by the
provisions of the Merger Agreement under which it is required to render
performance to or for the benefit of Patriot Operating Company, and that
Wyndham will perform all such obligations in accordance with the terms of the
Merger Agreement.
ARTICLE 8. COVENANTS AND AGREEMENTS OF THE PRINCIPAL STOCKHOLDER
The Principal Stockholder covenants and agrees with Patriot Operating
Company, New Patriot and Wyndham that the Principal Stockholder will be bound
by the provisions of the Stock Purchase Agreement under which it is required to
render performance to or for the benefit of Patriot Operating Company, and that
the Principal Shareholder will perform all such obligations in accordance with
the terms of the Stock Purchase Agreement.
ARTICLE 9. TERMINATION; AMENDMENT; WAIVER
9.1 Termination. If the Merger Agreement has been terminated, this
Agreement may be terminated and abandoned, at any time prior to the Effective
Time, whether before or after approval of the matters contemplated hereby by
the stockholders of Patriot Operating Company, New Patriot and Wyndham, by the
party terminating the Merger Agreement in accordance with its terms.
9.2 Effect of Termination. In the event of termination of this
Agreement as provided in Section 9.1, this Agreement shall forthwith become
void and have no effect, without any liability or obligation on the part of
Patriot Operating Company, New Patriot, Wyndham or Principal Stockholder other
than the provisions of this Section 9.2, Section 5.7, the last sentence of
Section 10.3 and Section 10.4. Nothing contained in this Section 9.2 shall
relieve any party for any breach of the representations, warranties, covenants,
or agreements set forth in this Agreement.
9.3 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations
or other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this agreement or
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in any document delivered pursuant to this Agreement or (c) subject to the
first sentence of Section 10.5, waive compliance with any of the agreements or
conditions contained in this Agreement. Any Agreement on the part of a party to
any such extension or waiver shall be valid only if set forth in an instrument
in writing signed on behalf of such party. The failure of any party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
ARTICLE 10. GENERAL PROVISIONS
10.1 Non-Survival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument pursuant to this Agreement shall not survive the Merger, provided,
however, that the agreements contained in Section 5.1, Article 6, Article 7 and
Article 8 (to the extent that any such agreements in Section 5.1, or Articles
6, 7 and 8 relate to any covenants in the Merger Agreement that survive the
Merger) and this Article 10 shall survive the Merger; and provided, further,
that all representations, warranties and covenants of Patriot Operating Company
herein made to or with the Principal Stockholder and of the Principal
Stockholder herein made to or with Patriot Operating Company shall survive the
Closing of the Stock Purchase.
10.2 Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) and addressed as follows:
If to Patriot Operating Company: Patriot American Hospitality
Operating Company
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
Attn: Paul A. Nussbaum
With copies to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
Attn: Gilbert G. Menna, P.C.
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If to New Patriot: Patriot American Hospitality, Inc.
Tri-West Plaza
3030 LBJ Freeway
Suite 1500
Dallas, TX 75234
Attn: Paul A. Nussbaum
With copies to: Goodwin, Procter & Hoar LLP
Exchange Place
Boston, MA 02109-2881
Attn: Gilbert G. Menna, P.C.
If to Wyndham: Wyndham Hotel Corporation
2001 Bryan Street
Suite 2300
Dallas, TX 75201
Attn: James D. Carreker
With copies to: Locke Purnell Rain Harrell
2200 Ross Avenue
Suite 220
Dallas, TX 75201-6776
Attn: M. Charles Jennings
If to Principal Stockholder: CF Securities, L.P.
2001 Ross Avenue
Suite 3200
Dallas, Texas 75201
Attn: Ms. Susan T. Groenteman
Crow Family Holdings
2001 Ross Avenue
Suite 3200
Dallas, Texas 75201
Attn: M. Kevin Bryant
and:
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With copies to: Vinson & Elkins L.L.P.
2001 Ross Avenue
Suite 3700
Dallas, TX 75201
Attn: Derek R. McClain
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
delivered.
10.3 Assignment; Binding Effect; Benefit. Neither this Agreement nor
any of the rights, interests or obligations hereunder shall be assigned prior
to the Closing by any of the parties hereto (whether by operation of law or
otherwise) without the prior written consent of the other parties. Subject to
the preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and assigns.
Notwithstanding anything contained in this Agreement to the contrary, except
for the provisions of Section 5.1 and Articles 6 and 7 (to the extent Section
5.1 and Articles 6 and 7 relate to Sections 8.12 and 8.13 of the Merger
Agreement), nothing in this Agreement, expressed or implied, is intended to
confer on any person other than the parties hereto or their respective heirs,
successors, executors, administrators and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
10.4 Entire Agreement. This Agreement, the Exhibits and the Patriot
Disclosure Letter and all provisions of the Merger Agreement incorporated
herein by reference and any documents delivered by the parties in connection
herewith constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings
among the parties with respect thereto. No addition to or modification of any
provision of this Agreement shall be binding upon any party hereto unless made
in writing and signed by all parties hereto.
10.5 Amendment. This Agreement may be amended by the parties hereto,
by action taken by their respective boards of directors or general partner, at
any time before or after approval of matters presented in connection herewith
to the stockholders of Patriot Operating Company, but after any such
stockholder approval, no amendment shall be made which by law requires the
further approval of stockholders without obtaining such further approval. This
Agreement may not be amended except by an instrument in writing signed on
behalf of each of the parties hereto.
10.6 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to its
rules of conflict of laws. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the courts
of the State of Delaware and of the United States of
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America located in the State of Delaware (the "Delaware Courts") for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agrees not to commence any litigation relating thereto
except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum.
10.7 Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which so executed and delivered shall
be an original, but all such counterparts shall together constitute one and the
same instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
10.8 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretive effect whatsoever.
10.9 Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and
vice versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
10.10 Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties,
covenants or agreements contained in this Agreement. The waiver by any party
hereto of a breach of any provision hereunder shall not operate or be construed
as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
10.11 Incorporation. The Patriot Disclosure Letter and the provisions
of the Merger Agreement are hereby incorporated herein and made a part hereof
for all purposes as if fully set forth herein.
10.12 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
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10.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
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
thereof if any Delaware 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.
10.14 Certain Definitions. Capitalized terms used in this Agreement
and not otherwise defined herein shall have the meanings ascribed to them in
the Merger Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
ATTEST PATRIOT AMERICAN HOSPITALITY
OPERATING COMPANY
By: /s/ WILLIAM W. EVANS III By: /s/ PAUL A. NUSSBAUM
--------------------------------- --------------------------------
Name William W. Evans III Name Paul A. Nussbaum
Title Office of the Chairman, Title Chairman and CEO
Patriot American Hospitality, Inc.
ATTEST WYNDHAM HOTEL CORPORATION
By: /s/ CARLA S. MORELAND By: /s/ ANNE L. RAYMOND
--------------------------------- --------------------------------
Name Carla S. Moreland Name Anne L. Raymond
Title Vice President, General Title Executive Vice President
Counsel and Secretary
ATTEST PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ WILLIAM W. EVANS III By: /s/ PAUL A. NUSSBAUM
--------------------------------- --------------------------------
Name William W. Evans III Name Paul A. Nussbaum
Title Office of the Chairman, Title Chairman, CEO and
Patriot American Hospitality, Inc. President
ATTEST CF SECURITIES, L.P.
By: /s/ MICHAEL BRYANT By: Mill Springs Holdings, Inc.
--------------------------------- its General Partner
Name Michael Bryant
Title Secretary
By: /s/ S. T. GROENTEMAN
--------------------------------
Name S. T. Groenteman
Title Executive Vice President
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