<PAGE>
EXHIBIT 10.1
AMENDED AND RESTATED TRANSACTION AGREEMENT
BY AND AMONG
JOHN Q. HAMMONS,
REVOCABLE TRUST OF JOHN Q. HAMMONS, DATED DECEMBER 28, 1989,
AS AMENDED AND RESTATED,
HAMMONS, INC.,
JD HOLDINGS, LLC,
AND
JQH ACQUISITION LLC
Dated as of June 14, 2005
<PAGE>
AMENDED AND RESTATED TRANSACTION AGREEMENT
THIS
AMENDED AND RESTATED TRANSACTION AGREEMENT (this "Agreement") is
made
as of June 14, 2005, by and among JD
Holdings, LLC, a Delaware limited liability
company ("JDH"), JQH Acquisition LLC, a
Delaware limited liability company
("JQHA," together with JDH, collectively,
the "JDH Entities"), John Q. Hammons
("JQH"), John Q. Hammons, as Trustee of the
Revocable Trust of John Q. Hammons,
dated December 28, 1989, as amended and
restated ("JQH Trust"), and Hammons,
Inc., a Missouri corporation ("Hammons,
Inc.," together with JQH and JQH Trust,
collectively, the "Stockholders"). This
Agreement amends and restates in its
entirety the Transaction Agreement, dated
as of May 24, 2005, by and among the
parties hereto (the "Original Agreement").
Capitalized terms used but not
otherwise defined herein shall have the
meanings accorded to them in Article I.
WHEREAS,
the Stockholders own (i) common stock with a majority of the
voting power of JQH Inc., the sole general
partner of John Q. Hammons Hotels,
L.P., a Delaware limited partnership ("JQH
LP"), and (ii) limited partner
interests in JQH LP representing
approximately 76% of the direct equity
interests in JQH LP;
WHEREAS,
John Q. Hammons Hotels, Inc., a Delaware corporation ("JQH
Inc."), JQHA, and JQH Merger Corporation, a
Delaware corporation and a
wholly-owned subsidiary of JQH Acquisition
("Merger Sub"), are parties to the
Agreement and Plan of Merger, dated as of
the date hereof (the "Merger
Agreement"), pursuant to which Merger Sub
will, subject to the terms and
conditions of the Merger Agreement, merge
with and into JQH Inc. (the "Merger"),
with JQH Inc. continuing as the surviving
corporation;
WHEREAS,
JQH desires to obtain certain assets of JQH LP and financing
for
hotel development activities;
WHEREAS,
the Stockholders and the JDH Entities, after the Merger, desire
to recapitalize JQH LP to reflect the
respective economic and other rights and
obligations of the partners with respect to
JQH LP subject to the terms and
conditions set forth herein;
WHEREAS,
the Stockholders are willing, on the terms and conditions set
forth herein, to vote all of their equity
interests in JQH Inc. and JQH LP in
favor of, and otherwise support the JDH
Entities in connection with, the
proposed Merger and the transactions
contemplated hereby; and
WHEREAS,
the parties hereto desire to amend and restate the Original
Agreement in its entirety as set forth
herein.
NOW,
THEREFORE, in consideration of the mutual covenants herein
contained
and for other good and valuable
consideration given and received by each party,
receipt of which is hereby acknowledged,
the parties hereto agree as follows:
1
<PAGE>
ARTICLE I
DEFINITIONS
1.1
Certain Defined Terms. For purposes of this Agreement, the
following
capitalized terms shall have the meanings
set forth below:
"Affiliate" means, as to any specified Person, (i) any trust,
shareholder,
equity owner, officer or director of such
Person and their family members or
(ii) any other Person which, directly or
indirectly, through one or more
intermediaries, controls, is controlled by,
employed by or is under common
control with, the specified Person. For the
purposes of this definition,
"control" means the possession of the power
to direct or cause the direction of
the management and policies of such Person,
whether through the ownership of
voting securities, by contract or
otherwise. The term "Affiliates" shall include
all Subsidiaries of such Person. For
purposes of this Agreement, JQH Inc., JQH
LP, and their respective Subsidiaries shall
not be deemed to be "Affiliates" of
any Stockholder.
"Alternative Transaction" means any (i) reorganization,
dissolution,
liquidation or recapitalization of JQH
Inc., JQH LP or any of their respective
Subsidiaries or involving JQH Inc., JQH LP
or any of their respective
Subsidiaries, (ii) merger, consolidation,
share exchange or acquisition of JQH
Inc., JQH LP or any of their respective
Subsidiaries, (iii) sale of any material
amount of assets of JQH Inc., JQH LP or any
of their respective Subsidiaries,
(iv) direct or indirect acquisition or
purchase of any of the Equity Interests,
(v) any similar transaction or business
combination involving JQH Inc., JQH LP
or any of their respective Subsidiaries or
their respective businesses, capital
stock, partnership interests, other equity
interests or assets or (vi) other
transaction the consummation of which would
prevent, impede or delay the
consummation of the Transaction that, in
each of the cases outlined in items (i)
through (vi) above, does not involve JDH or
JQHA on terms acceptable to JDH and
JQHA in their sole discretion.
"Business
Day" means any day other than a Saturday, Sunday or other day
which is a legal holiday in the State of
Delaware.
"Closing"
means the closing of the Transactions, as effected immediately
after the Effective Time in the order set
forth in Section 2.1.
"Consent"
means any approval, consent, ratification, permission, waiver
or
authorization (including any Governmental
Authorization).
"Debt"
means, as to any Person, at a particular time, (i) indebtedness
for
borrowed money or for the deferred purchase
price of property (which shall not
include accounts payable incurred in the
ordinary course of business) in respect
of which such Person is liable,
contingently or otherwise, as obligor, guarantor
or otherwise, or in respect of which such
Person otherwise assures a creditor
against loss, (ii) obligations under leases
which shall have been or should be,
in accordance with generally accepted
accounting principles, recorded as capital
leases in respect of which obligations such
Person is liable, contingently or
otherwise, as obligor, guarantor or
otherwise, or in respect of which
obligations such Person assures a creditor
against loss, (iii) obligations of
such Person to purchase or repurchase
accounts receivable, chattel paper or
other payment rights sold or assigned by
such Person, (iv) indebtedness or
obligations of such Person under or with
respect to letters of credit, notes,
bonds or other debt instruments and (v)
all
2
<PAGE>
obligations of such Person under any
interest rate swap, cap or collar agreement
or other similar agreement or arrangement
designed to alter the risks of that
Person arising from fluctuations in
interest rates, in each case whether
contingent or matured.
"Effective
Date" means the date during which the Effective Time occurs.
"Effective
Time" means such time as the Merger is declared effective by
the Secretary of State of the State of
Delaware in accordance with the
provisions of Section 251 of the General
Corporation Law of the State of
Delaware.
"Equity
Interests" has the meaning set forth in Section 4.2.
"Fourth
Amended and Restated LPA" has the meaning set forth in Section
2.1(i).
"Funding
Agreement" has the meaning set forth in Section 2.1(p).
"Governmental Authorization" means any: (a) permit, license,
certificate,
franchise, permission, variance, clearance,
registration, qualification or
authorization issued, granted, given or
otherwise made available by or under the
authority of any Governmental Body or
pursuant to any Legal Requirement; or (b)
right under any contract with any
Governmental Body.
"Governmental Body" means any: (a) nation, state, commonwealth,
province,
territory, county, municipality, district
or other jurisdiction of any nature;
(b) federal, state, local, municipal,
foreign or other government; or (c)
governmental or quasi-governmental
authority of any nature (including any
governmental division, department, agency,
commission, instrumentality,
official, organization, unit, body or other
Person and any court or other
tribunal).
"Hammons,
Inc." has the meaning set forth in the Preamble.
"HSR Act"
means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations
promulgated thereunder.
"Indenture" means the Indenture, dated as of May 21, 2002, by and
among
JQH LP, John Q. Hammons Hotels Finance
Corporation III, a Missouri corporation,
and Wachovia Bank, National Association, as
trustee, relating to the First
Mortgage Notes due 2012, as amended to the
date hereof.
"Incapacity" means (a) death, (b) total physical or mental
disability that
has a reasonable likelihood of preventing
JQH from developing hospitality
properties for more than one (1) year, or
(c) entry of an order by a court of
competent jurisdiction adjudicating JQH
incompetent to manage his own person
and/or his estate. The determination to be
made under subsection (b) above shall
be based on the written opinion of a
majority of a three-physician panel (the
"Panel") consisting of the following: one
physician shall be the physician
regularly attending JQH; one physician
shall be selected by the JDH Entities;
and the third shall be a physician selected
by the aforesaid two physicians, who
shall not have had any prior relationship
(whether personally or professionally)
with JQH. In conjunction with a
determination to be made under subsection (b),
JQH hereby consents to examination by the
three physicians, to furnish any
medical information requested by any
examining physician, and to waive any
applicable physician-patient privilege that
may arise because of such
examination. Specifically, JQH hereby
intends for his attorney-
3
<PAGE>
in-fact to be treated as he would be with
respect to his rights regarding the
use and disclosure of JQH's individually
identifiable health information or
other medical records. This release
authority applies to any information
governed by the Health Insurance
Portability and Accountability Act of 1996
("HIPAA"), 42 USC 1320d and 45 CFR 160-164.
For the purposes described herein,
JQH hereby expressly designates his
attorney-in-fact as his "Personal
Representative" under the HIPAA laws and
regulations.
"Interim
LPA" has the meaning set forth in Section 2.1(a).
"iStar"
means iStar Financial, Inc., a Maryland corporation.
"JDH" has
the meaning set forth in the Preamble.
"JQH" has
the meaning set forth in the Preamble.
"JQH
Hotels Two" has the meaning set forth in Section 2.1(j)(iii).
"JQH Inc."
has the meaning set forth in the Recitals.
"JQH Inc.
Common" has the meaning set forth in Section 2.1(b)(i).
"JQH Inc.
Options" has the meaning set forth in Section 2.1(b)(i).
"JQH LP"
has the meaning set forth in the Recitals.
"JQH Management
Company" means John Q. Hammons Hotels Management Company,
LLC, a new limited liability company to be
formed by the Stockholders prior to
the Effective Time.
"JQH
Trust" has the meaning set forth in the Preamble.
"Legal
Requirement" means any federal, state, local, municipal, foreign
or
other law, statute, constitution, principle
of common law, resolution,
ordinance, code, edict, decree, rule,
regulation, ruling or requirement issued,
enacted, adopted, promulgated, implemented
or otherwise put into effect by or
under the authority of any Governmental
Body (or under the authority of The
American Stock Exchange or any other stock
exchange, if applicable).
"Long-Term
Line of Credit Agreement" has the meaning set forth in Section
2.1(q).
"Merger"
has the meaning set forth in the Recitals.
"Merger
Agreement" has the meaning set forth in the Recitals.
"Merger
Sub" has the meaning set forth in the Recitals.
"Newco
LLC" means a new limited liability company to be formed by JQHA
prior to the Effective Time.
"Options"
has the meaning set forth in Section 4.2.
4
<PAGE>
"Original
Agreement" has the meaning set forth in the Preamble.
"Person"
means any individual, corporation (including any non-profit
corporation), general or limited
partnership, limited liability company, estate,
trust, association, organization or other
entity or Governmental Body.
"Prior LP
Agreement" means the Second Amended and Restated Agreement of
Limited Partnership of JQH LP, dated as of
November 23, 1994, by and among JQH
Inc., as general partner, and JQH, Trustee
of the Revocable Trust of John Q.
Hammons Dated December 28, 1989, as Amended
and Restated, and Hammons, Inc., as
limited partners, as previously amended by
Amendment No. 1 dated February 24,
1995, Amendment No. 2 dated October 12,
1995 and Amendment No. 3 dated May 17,
2002.
"Representatives" has the meaning set forth in Section 3.3(a).
"Short-Term Line of Credit Agreement" means the Loan Agreement,
dated as
of the date hereof, by and among JQH, JQH
Trust and iStar.
"Stockholder Debt" has the meaning set forth in Section 4.7.
"Stockholders" has the meaning set forth in the Preamble.
"Subsidiary" means, with respect to any Person, any corporation,
limited
liability company, partnership, association
or other business entity of which
(i) if a corporation, a majority of the
total voting power of shares of stock
entitled (without regard to the occurrence
of any contingency) to vote in the
election of directors, managers or trustees
thereof is at the time owned or
controlled, directly or indirectly, by that
Person or one or more of the other
Subsidiaries of that Person or a
combination thereof or (ii) if a limited
liability company, partnership, association
or other business entity (other than
a corporation), (x) a majority of the
partnership or other similar ownership
interests thereof is at the time owned or
controlled, directly or indirectly, by
that Person or one or more Subsidiaries of
that Person or a combination thereof,
and for this purpose, a Person or Persons
own a majority ownership interest in
such a business entity (other than a
corporation) if such Person or Persons
shall be allocated a majority of such
business entity's gains or losses or (y)
that Person shall be or control any
managing director or general partner
controlling such business entity (other
than a corporation).
"Third
Amended and Restated LPA" has the meaning set forth in Section
2.1(f).
"Transaction Agreements" means, collectively, all of the
agreements
referenced in Section 2.1 hereof.
"Transactions" has the meaning set forth in Section 2.1.
"TRS" has
the meaning set forth in Section 2.1(l).
1.2 Other
Definitional Provisions. References to "Sections," "Exhibits"
or
"Schedules" shall be to sections of, or
exhibits or schedules attached to, this
Agreement unless otherwise specifically
provided. Any of the terms defined in
this Agreement may, unless the context
otherwise requires, be used in the
singular or the plural, depending on the
reference.
5
<PAGE>
Any reference herein to any agreement,
document or instrument, including,
without limitation, this Agreement and any
exhibits, unless expressly noted
otherwise, shall be a reference to each
such agreement, document or instrument
as the same may be amended, restated,
supplemented or otherwise modified from
time to time to the extent permitted
hereunder.
ARTICLE II
TRANSACTIONS
2.1
Closing Transactions. Upon the terms and subject to the conditions
of
this Agreement, each of the parties hereto
agrees to and shall consummate, or
shall cause to be consummated, immediately
after the Effective Time, the
following transactions, in the order set
forth below (collectively, the
"Transactions"), and, subject to the second
sentence of Section 2.1(d), each
Transaction shall be conditioned upon the
occurrence of the other Transactions.
(a) Amendment of Prior LP Agreement. JQH Inc, as general
partner,
and JQH Trust and Hammons, Inc., as limited
partners, shall cause the Prior LP
Agreement to be amended in the form
attached hereto as Exhibit 2.1(a) (as so
amended, the "Interim LPA").
(b) JQH Inc. Options. JQHA shall contribute to JQH Inc. an amount
of
cash equal to (A) the product of (1) the
aggregate number of shares of Class A
common stock, par value $.01 per share, of
JQH Inc. (the "JQH Inc. Common")
issuable upon exercise of all of the
options outstanding as of the Effective
Time (collectively, the "JQH Inc. Options")
to purchase shares of JQH Inc.
Common issued under, and in accordance
with, the John Q. Hammons Hotels, Inc.
1994 Employee Stock Option Plan and the
John Q. Hammons Hotels, Inc. 1999
Non-Employee Director Stock and Stock
Option Plan, multiplied by (2) $24.00,
less (B) the aggregate amount of the
exercise price of all of the JQH Inc.
Options.
(c) Real Estate Sale and Noncompete. JQH Trust and JQH shall,
and
the JDH Entities shall cause JQH Inc. to
cause John Q. Hammons Hotels Two, L.P.
to, enter into the Real Estate Sale and
Non-compete Agreement, in the form of
Exhibit 2.1(c) attached hereto, and such
agreement shall be in full force and
effect. The transactions contemplated by
such agreement to be consummated on the
Effective Date shall be consummated subject
to the terms and conditions therein.
(d) Chateau Distribution. The Stockholders and the JDH Entities,
as
applicable, shall enter into, and shall
cause their respective Affiliates (as
applicable) to enter into, the Chateau
Distribution Agreement, in the form of
Exhibit 2.1(d) attached hereto, and such
agreement shall be in full force and
effect. The transactions contemplated by
such agreement to be consummated on the
Effective Date shall be consummated subject
to the terms and conditions therein,
it being understood and agreed that,
notwithstanding anything herein to the
contrary, in the event that all of the
conditions to the closing of the
transactions contemplated by such agreement
are not satisfied, the consummation
of the transactions contemplated by such
agreement to be consummated on the
Effective Date shall not in any respect
serve as a condition to the occurrence
of the other Transactions set forth in this
Section 2.1.
(e) Management Assets. The Stockholders and the JDH Entities,
as
applicable, shall enter into, and shall
cause their respective Affiliates (as
applicable) to enter into, the Management
Assets and Obligations Distribution
Agreement, in the form of Exhibit
2.1(e)
6
<PAGE>
attached hereto, and such agreement shall
be in full force and effect. The
transactions contemplated by such agreement
to be consummated on the Effective
Date shall be consummated subject to the
terms and conditions therein.
(f) Amendment and Restatement of Interim LPA. JQH Inc, as
general
partner, and JQH Trust and Hammons, Inc.,
as limited partners, shall cause the
Interim LPA to be amended and restated in
the form attached hereto as Exhibit
2.1(f) (as so amended and restated, the
"Third Amended and Restated LPA"), and
the Third Amended and Restated LPA shall be
in full force and effect.
(g) Redemption Agreement. JQH Trust and JQH Inc. shall enter
into
the Redemption Agreement in the form of
Exhibit 2.1(g) attached hereto, and such
agreement shall be in full force and
effect. The transactions contemplated by
such agreement to be consummated on the
Effective Date shall be consummated
subject to the terms and conditions
therein.
(h) Exchange of Certain Interests. JQH Inc. shall contribute all
of
its general partner interest in JQH LP to
Newco LLC, and in exchange therefor,
Newco LLC shall issue to JQH Inc. a
preferred equity interest (or such other
interest as determined by Newco LLC in its
sole discretion) in Newco LLC.
(i) Amendment and Restatement of Third Amended and Restated LPA.
JQH
Inc. shall cause Newco to be admitted as a
general partner to JQH LP, and Newco
LLC, as general partner, and JQH Trust and
Hammons, Inc., as limited partners,
shall cause the Third Amended and Restated
LPA to be amended and restated in the
form attached hereto as Exhibit 2.1(i) (as
so amended and restated, the "Fourth
Amended and Restated LPA"), and the Fourth
Amended and Restated LPA shall be in
full force and effect.
(j) Name Changes. Subject to the terms and conditions of the
Indenture and the related security
agreements, JQHA shall cause the following
name changes to be effected:
(i) the name of John Q. Hammons Hotels, Inc., a Delaware
corporation, shall be changed to "Atrium Hotels, Inc.";
(ii) the name of John Q. Hammons Hotels Finance Corporation
III, a
Missouri corporation, shall be changed to "Atrium Hotels
Finance
Corporation III";
(iii) the name of John Q. Hammons Hotels Two, L.P., a Delaware
corporation ("JQH Hotels Two"),
shall be changed to "Atrium Hotels Two,
L.P.";
(iv) the name of J.Q.H., Inc., a Missouri corporation, shall
be changed
to "A.H., Inc."; and
(v) the name of John Q. Hammons Food and Beverage Holding
Company
Inc., a Missouri corporation, shall be changed to "Atrium
Hotels
Food and
Beverage Holding Company Inc.."
In the event that the Indenture or any of
the related security agreements
prohibit the name changes contemplated by
this Section 2.1(j), such name changes
shall be effected no later than 30 days
after such time as all such
prohibitions, if any, cease to be
effective.
7
<PAGE>
(k) Execution of Certain Agreements. JQH Inc., the Stockholders
and
JQHA, as applicable, shall enter into, and
shall cause their respective
Affiliates (as applicable) to enter into,
each of the following agreements, and
each such agreement shall be in full force
and effect:
(i) the Tax Indemnity Agreement, in the form attached hereto
as Exhibit
2.1(k)(i);
(ii) the Sponsor Right of First Refusal, in the form attached
hereto as
Exhibit 2.1(k)(ii);
(iii) the JQH Right of First Refusal, in the form attached
hereto as
Exhibit 2.1(k)(iii);
(iv) the Non-Solicitation Agreement, in the form attached
hereto as
Exhibit 2.1(k)(iv);
(v) the Corporate Overhead Agreement, in the form attached
hereto as
Exhibit 2.1(k)(v); and
(vi) the Development Restriction Agreement, in the form
attached
hereto as Exhibit 2.1(k)(vi).
(l) Formation of TRS. JQHA shall cause Newco LLC to cause JQH LP
to
form a new wholly-owned subsidiary ("TRS")
for purposes of, inter alia,
consummating the transactions contemplated
by Sections 2.1(m), 2.1(n) and
2.1(o).
(m) TRS Leases. JQHA shall cause Newco LLC to cause JQH LP, JQH
Hotels Two and TRS to enter into the TRS
Leases, in the form attached hereto as
Exhibit 2.1(m), with respect to each of the
hotels owned by JQH LP and JQH
Hotels Two.
(n) Revenue Sharing Agreement. The Stockholders and the JDH
Entities
shall cause their respective Affiliates (as
applicable) to enter into the
Revenue Sharing Agreement, in the form
attached hereto as Exhibit 2.1(n), and
such agreement shall be in full force and
effect.
(o) Management Services Agreement. The Stockholders shall cause
JQH
Management Company, and JQHA shall cause
Newco LLC to cause TRS, to enter into
the Management Services Agreement, in the
form attached hereto as Exhibit
2.1(o), and such agreement shall be in full
force and effect.
(p) Funding Agreement. iStar shall execute the funding Agreement,
in
the form of Exhibit 2.1(p) attached hereto,
and such agreement shall be in full
force and effect (the "Funding
Agreement").
(q) Long-Term Line of Credit Agreement. Atrium Lendco LLC, a
Delaware limited liability company to be
formed by JQHA prior to the Effective
Time ("Atrium Lendco"), and a new limited
liability company to be formed by JQH
Trust prior to the Effective Time shall
execute the Loan Agreement, in the form
of Exhibit 2.1(q) attached hereto, and such
agreement shall be in full force and
effect (the "Long Term Line of Credit
Agreement").
8
<PAGE>
ARTICLE III
COVENANTS
3.1
Support of the Merger. The Stockholders, jointly and severally,
agree,
to the extent permitted by law, prior to
the termination of this Agreement in
accordance with its terms, (i) to attend
all meetings of the stockholders of JQH
Inc., (ii) to retain all voting rights with
respect to the Equity Interests (as
defined in Section 4.2), and (iii) at every
meeting of the stockholders of JQH
Inc., however called, or every adjournment
thereof, or in connection with any
action by written consent by the
stockholders of JQH Inc. or limited partners of
JQH LP, to vote all of the shares of Class
A common stock and Class B common
stock of JQH Inc. owned by the Stockholders
and all limited partner interests in
JQH LP that they own:
(a) in favor of the Merger, the Transaction and the Transaction
Agreements for which stockholder or limited
partner approval may be required;
and
(b) without regard to any recommendation from the Board of
Directors
of JQH Inc. to stockholders or limited
partners, against any Competing Proposal
(as defined in Section 3.3(a)) and any
other action or agreement that would
reasonably be expected to prevent, impede,
adversely affect, compete with,
interfere with, delay, postpone or
discourage the Merger or the Transaction (or
attempt to do any of the foregoing),
including without limitation: (A) any
extraordinary corporate transaction, such
as a merger, rights offering,
reorganization, recapitalization or
liquidation involving JQH Inc., JQH LP or
any of their respective Subsidiaries, (B) a
sale or transfer of a material
amount of assets of JQH Inc., JQH LP or any
of their respective Subsidiaries, or
the issuance of any securities of JQH Inc.,
JQH LP or any of their respective
Subsidiaries, (C) any change in the
executive officers or the Board of Directors
of JQH Inc., (D) any change in the present
corporate or partnership structure or
business of JQH Inc. or JQH LP or (E)
except to the extent contemplated by any
of the Transaction Agreements, any
amendment to the constit
