EXHIBIT 10.35
AMENDMENT OF
STOCK PURCHASE AGREEMENT
AND
SECURITY AND PLEDGE AGREEMENT
This Amendment of Stock Purchase Agreement and Security
and Pledge Agreement (this "Amendment") is dated as of the 15th
day of June, 1998 by and among (i) Carnival Corporation ("CCL")
and (ii) Xxxxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxxx X. Xxxxxx
("Xxxxxx"), Xxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxx Xxxxxx
("Xxxxxx"), W. Xxxxx Xxxxxxx ("Temling") and Xxxxxx X. Xxxxxxx
("Xxxxxxx") (Weiser, Lefton, Hewitt, Sibley, Temling and Xxxxxxx
are sometime collectively referred to herein a the "Buyers" and
individually as a "Buyer").
R E C I T A L S:
A. CCL and the Buyers entered into that certain Stock
Purchase Agreement dated as of November 30, 1994 (the "Purchase
Agreement") pursuant to which the Buyers acquired an aggregate of
2,610,000 (as adjusted for 2-for-1 stock split) shares of CHC
International, Inc. ("CHC") Common Stock.
B. The purchase price for such shares of CHC Common
Stock was paid by each Buyer's delivery to CCL of (a) such
Buyer's promissory note in the amount set forth in the Agreement
(collectively, the "Original Notes") and (b) a Security and
Pledge Agreement dated as of November 30, 1994, pursuant to which
each Buyer granted to CCL a security interest in and to the CHC
Common Stock it acquired pursuant to the Agreement (each, a
"Pledge Agreement").
C. The entire principal balance and all interest
accrued under the Original Notes remains outstanding on the date
hereof.
D. The Buyers desire to exchange the shares of CHC
Common Stock for shares of Wyndham International, Inc.
("Wyndham") Series A Redeemable Convertible Preferred Stock and
Series B Redeemable Convertible Preferred Stock pursuant to that
certain Agreement and Plan of Merger by and among Patriot
American Hospitality Operating Company (n/k/a Wyndham
International, Inc.), Patriot American Hospitality, Inc. and CHC
dated as of September 30, 1997 and other documents contemplated
thereby (collectively, the "Merger Documents").
E. Certain shares of CHC Common Stock are currently
pledged as collateral for the Original Notes. The Buyers desire
to substitute such collateral with shares of (i) CSMC-Management
Services Inc. (which name may be later changed to CCR
International, Inc.) Common Stock (the "CSMC Shares") and (ii)
Wyndham Series A Redeemable Convertible Preferred Stock and
Series B Redeemable Convertible Preferred Stock, in the amounts
set forth on Exhibit A hereto (the "WYNDHAM Shares", which
together with the CSMC Shares shall be referred to herein as the
"WYNDHAM/CSMC Shares").
F. CCL has agreed to accept the Wyndham/CSMC Shares as
substitute collateral as for the loans evidenced by the Original
Notes further provided herein.
G. The principal balance of the loans evidenced by the
Original Notes, will be renewed and evidenced by Renewal
Promissory Notes dated the date hereof from each of the Buyers
(the "Renewal Notes").
In consideration of these recitals and the covenants
contained in this Amendment, the parties agree as follows:
1. Definitions. Capitalized terms used but not
otherwise defined herein shall have the meanings ascribed to such
terms in the Purchase Agreement.
2. Recitals. The parties hereto acknowledge and agree
that the foregoing recitals are true and correct and constitute a
part of this Amendment.
3. Amendments of the Purchase Agreement.
(a) Section 4.1 of the Purchase Agreement shall be
deleted and replaced in its entirety with the following:
"4.1 Sale and Purchase. Subject to Article V, at
any time between May 30, 1996 and June 30, 1999, upon
written notice from Xxxxxx (the "Put Notice"), CCL
shall purchase from Buyers, on the date and in the
manner set forth in this Article IV, all (but not
less than all) of the CSMC Management Services, Inc.
Common Stock, par value $.01 per share, (the "CSMC
Shares") and the Wyndham International, Inc. Series A
Redeemable Convertible Preferred Stock, par value
$.01 per share, and Series B Redeemable Convertible
Preferred Stock, par value $.01 per share, (the
"WYNDHAM Shares", which collectively with the CSMC
Shares shall be referred to as the "WYNDHAM/CSMC
Shares"), described on Exhibit A to the Amendment of
Stock Purchase Agreement and Security and Pledge
Agreement dated June 15, 1998 then held by Buyers, at
the Purchase Price paid by Buyers hereunder, together
with an amount necessary so that the aggregate
purchase price to be paid by CCL pursuant to this
Article IV returns to each Buyer his original
investment of $6.25 per share of CHC International,
Inc. Common Stock (as adjusted for the 2-for-1 stock
split) purchased from CCL on the date of CCL's sale
of the Purchased Shares hereunder (the "Closing
Date") and also provides such Buyer with a rate of
return thereon of 6.10% per annum, in each case from
the Closing Date until the date the Wyndham/CSMC
Shares are acquired by CCL pursuant to this Article
IV. Each of the Buyers agrees that Xxxxxx shall have
the sole right to deliver the Put Notice. For the
sake of clarity, the parties acknowledge that this
Section 4.1 has been amended in order to permit the
Buyers to exchange the Purchased Shares. In order to
put CCL in the same position as it was prior to such
sale, the 'put' provided for under this Section 4.1
shall apply to the Wyndham/CSMC Shares, which were
acquired by the Buyers at the time of and in
connection with the exchange of the Purchased
Shares."
(b) All references contained in the Sections 4.2
and 4.4 of the Purchase Agreement to "Purchased Shares" are
hereby deleted and replaced in their entirety with "WYNDHAM/CSMC
Shares".
(c) All references contained in Article V of the
Purchase Agreement to "fourth anniversary" are hereby deleted and
replaced in their entirety with "June 30, 1999".
4. Amendments of Each Pledge Agreement.
(a) Subsection (a) of Section 1 of each Pledge
Agreement is hereby deleted and replaced in its entirety with the
following:
"(a) the number of shares of Common Stock, par value
$.005 per share, of CSMC Management Services Inc.,
and the number of shares of Series A Redeemable
Convertible Preferred Stock, par value $.01 per
share, and Series B Redeemable Convertible Preferred
Stock, par value $.01 per share, of Wyndham
International, Inc. set forth opposite such Debtor's
name on Exhibit A to the Amendment of Stock Purchase
Agreement and Security and Pledge Agreement dated as
of June 15, 1998 (the "Amendment")(collectively the
"WYNDHAM/CSMC Shares");";
(b) Section 2 of each Pledge Agreement is hereby
deleted and replaced in its entirety with the following:
"2. Stock Purchase Agreement. This Agreement was
executed and delivered pursuant to the terms,
conditions and requirements of the Stock Purchase
Agreement dated as of November 30, 1994, as amended
(the "Purchase Agreement") pursuant to which Secured
Party sold certain shares of common stock of CHC
International, Inc. to Debtor. As of the date of the
Amendment, Debtor exchanged of all of such shares of
CHC International, Inc. for the Wyndham/CSMC Shares
and substituted such shares as Collateral hereunder.
The security interests herein granted ("Security
Interests") shall secure full payment and performance
of: (a) that certain Promissory Note dated November
30, 1994 made by Debtor and payable to Secured Party
(the "Original Note"), which obligation has been
renewed pursuant to that certain Renewal Promissory
Note dated June 15, 1998 made by Debtor and payable
to Secured Party (the "Note"); and (b) the due and
punctual observance and performance of each and every
agreement, covenant and condition on Debtor's part to
be observed or performed under this Agreement and the
Note (all of which debts, duties, liabilities and
obligations hereinbefore described and covered by
this Agreement and the Note are hereinafter referred
to as the "Obligation")."
5. Representations and Warranties. Each Buyer hereby
represents and warrants to CCL and covenants for the benefit of
CCL as follows:
(a) Each Buyer is the sole legal and equitable
owner of the Wyndham/CSMC Shares described on Exhibit A hereto
free from any adverse claim, lien, security interest, encumbrance
or other rights, title or interest of any person, except for (i)
the security interest created by the Pledge Agreement, as
amendment hereby; (ii) as described in Section 5(d) hereof; and
(iii) claims arising under the Merger Documents.
(b) Except for the Wyndham Shares described in
Section 5(d) below, each Buyer has delivered to CCL all stock
certificates evidencing the Wyndham/CSMC Shares pledged and
assigned as contemplated under this Amendment, together with duly
executed stock powers in blank.
(c) The amount outstanding under the Renewal Note
is intended by the Buyers to be and remain fully secured by the
Pledge Agreement and each Buyer hereby expressly reaffirms the
representations and warranties set forth in the Pledge Agreement.
(d) Immediately upon the release of the Wyndham
Shares withheld from delivery by Wyndham pursuant to Section 8 of
that certain Stockholder Indemnification Agreement by and among
Wyndham and each of the Buyers and the other stockholders of CHC,
each Buyer agrees to deliver to CCL all stock certificates
actually released by Wyndham, which shares evidenced thereby have
been pledged and assigned as contemplated under this Amendment,
together with duly executed stock powers in blank.
6. Agreement. All parties agree that, except as
provided in this Amendment, all other terms and conditions of the
Purchase Agreement and Pledge Agreement remain in full force and
effect.
7. Counterparts. This Amendment may be executed in any
number of counterparts and by the separate parties to this
Amendment in separate counterparts, all of which shall be deemed
to be an original and one and the same instrument.
8. Effective Date. Notwithstanding the date of this
Amendment, this Amendment shall not become effective until, and
shall become effective simultaneously with, the closing of the
transaction contemplated by the Merger Documents.
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be made, executed and delivered as of the day and
year first above written.
CARNIVAL CORPORATION
By:/s/ Xxxxxx X. Xxxxxx
Print Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and CFO
/s/ Xxxxxxxx X. Xxxxxx
XXXXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
XXXXXX X. XXXXXX
/s/ Xxxxx Xxxxxx
XXXXX XXXXXX
/s/ W. Xxxxx Xxxxxxx
W. XXXXX XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
XXXXXX X. XXXXXXX
EXHIBIT A
WYNDHAM/CSMC SHARES
CSMC Wyndham Wyndham
Management Series A Series B
Name of Buyer Shares Shares Shares
Xxxxxx 859,248 138,088 138,088
Lefton 859,248 138,088 138,088
Xxxxxx 318,394 51,169 51,169
Xxxxxx 318,394 51,169 51,169
Xxxxxxx 127,358 20,467 20,467
Temling 127,358 20,467 20,467
TOTAL 2,610,000 419,448 419,448
