SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1 AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
Wyndham International, Inc.
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(Name of Issuer)
Class A Common Stock, $0.01 par value per share
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(Title of Class of Securities)
983101 10 6
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(CUSIP Number)
William Bonn, Esq.
Senior Vice President and General Counsel
Beacon Capital Partners, Inc.
1 Federal Street
26th Floor
Boston, Massachusetts 02110
(617) 457-0400
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
With a copy to:
Randall H. Doud, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
919 Third Avenue
New York, New York 10022
(212) 735-3000
June 30, 1999
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check
the following box: [__]
CUSIP NO. 983101 10 6 13D PAGE 2 OF 16 PAGES
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1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Beacon Capital Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS* OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 5,238,650 (see Item 5)
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
5,238,650 (see Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,238,650 (see Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.1%
14 TYPE OF REPORTING PERSON*
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 983101 10 6 13D PAGE 3 OF 16 PAGES
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1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
BCP Voting, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS* N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 12,223,516 (see Item 5)
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
12,223,516 (see Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
12,223,516 (see Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.9%
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
CUSIP NO. 983101 10 6 13D PAGE 4 OF 16 PAGES
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1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Beacon Capital Partners, Inc.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS* N/A
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Maryland
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY
OWNED BY 8 SHARED VOTING POWER
EACH 17,462,166 (see Item 5)
REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 0
10 SHARED DISPOSITIVE POWER
17,462,166 (see Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,462,166 (see Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |X|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.5%
14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is
the Class A Common Stock, $0.01 par value per share (the "Shares"), of
Wyndham International, Inc., a Delaware corporation ("Wyndham"). The
principal executive offices of Wyndham are located at 1950 Stemmons
Freeway, Suite 6001, Dallas Texas 75207.
Item 2. Identity and Background.
(a)-(c), (f). This statement is being filed jointly on behalf of
the following persons (collectively, the "Reporting Persons"): (i) Beacon
Capital Partners, L.P., a Delaware limited partnership ("Beacon LP"); (ii)
BCP Voting Inc., as voting trustee for the Beacon Capital Partners Voting
Trust ("BCP Voting"); and (iii) Beacon Capital Partners, Inc., a Maryland
corporation ("Beacon").
Beacon LP and Beacon are principally engaged in the business of
making investments in securities or assets of real estate properties or
companies. Beacon is a real estate investment trust and is the general
partner of Beacon LP. BCP Voting is a wholly owned subsidiary of Beacon and
is principally engaged in the business of serving as voting trustee for the
Beacon Capital Partners Voting Trust.
The address of the Reporting Persons is c/o Beacon Capital
Partners, Inc., 1 Federal Street, 26th Floor, Boston, Massachusetts 02110.
Schedule A hereto sets forth information concerning the Reporting
Persons and other persons and entities as to which such information is
required to be disclosed in response to Item 2 and General Instruction C to
Schedule 13D.
(d) and (e). None of the Reporting Persons or any of their
officers or directors has been convicted in a criminal proceeding during
the past five years (excluding traffic violations and similar
misdemeanors).
None of the Reporting Persons or any of their officers or
directors has been party to a civil proceeding of a judicial or
administrative body of competent jurisdiction during the past five years as
a result of which it was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities
subject to, federal or state securities laws or finding any violation with
respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a Securities Purchase Agreement, dated as of February
18, 1999 and amended as of June 28, 1999 (the "Securities Purchase
Agreement"), by and among Wyndham, Patriot American Hospitality, Inc.
("Patriot"), Patriot American Hospitality L.P. ("Patriot OP"), Wyndham
International Operating Partnership, L.P. ("Wyndham OP, and together with
Patriot OP, the "Operating Partnerships") and certain investors named
therein (the "Original Investors"), the Original Investors were entitled,
subject to compliance with the terms and conditions set forth therein, to
purchase 10,000,000 shares of Series B Convertible Preferred Stock, $0.01
par value per share (the "Series B Preferred Stock"), of Wyndham for
aggregate consideration of $1,000,000,000. Certain of the Original
Investors subsequently entered into Assignment and Assumption Agreements
(the "Assignments") with BCP Voting and others who are parties to the
Stockholders' Agreement described below (collectively, the "Co-Investors"
and, together with the Original Investors, the "Investors"), pursuant to
which the Original Investors assigned to the Co-Investors their right to
purchase certain of the shares of Series B Preferred Stock that the
Original Investors were entitled to purchase under the Securities Purchase
Agreement.
Pursuant to the Securities Purchase Agreement and, in the case of
BCP Voting, an Assignment, the Reporting Persons purchased an aggregate of
1,500,000 shares of Series B Preferred Stock for an aggregate purchase
price of $150,000,000, including 1,050,000 shares of Series B Preferred
Stock purchased on June 30, 1999 for cash and 450,000 shares of Series B
Preferred Stock purchased on July 1, 1999 in exchange for the cancellation
of $45,000,000 of indebtedness owed by Wyndham to Beacon LP. Immediately
following the purchase of 1,050,000 shares of Series B Preferred Stock on
June 30, 1999, Beacon LP contributed 1,050,000 shares of Series B Preferred
Stock to BCP Voting pursuant to a Voting Trust Agreement dated as of June
8, 1999 by and among BCP Voting, Beacon and Beacon LP, as amended (the
"Voting Trust Agreement"), and distributed beneficial interests in the
voting trust to the stockholders of Beacon who are accredited investors.
Under the terms of the Voting Trust Agreement, BCP Voting has exclusive
voting power in all matters with respect to the shares of Series B
Preferred Stock held by it.
Item 4. Purpose of Transactions.
The Reporting Persons have purchased the Series B Preferred Stock
for general investment purposes and retain the right to change their
investment intent. Subject to market conditions and other factors,
including the restrictive provisions of the Securities Purchase Agreement
and the Stockholders' Agreement (as defined below), the Reporting Persons
may acquire or dispose of securities of Wyndham from time to time in future
open-market, privately negotiated or other transactions. Such acquisitions
could include purchases pursuant to the Rights Offering (as defined below)
or pursuant to the exercise of preemptive rights as described below. In
addition, the Reporting Persons may maintain various credit facilities and
arrangements, including customary margin arrangements, with banks and other
financial institutions in the ordinary course of business and in connection
therewith provide to the lenders as collateral thereunder the shares of
Series B Preferred Stock purchased by them or other securities of Wyndham
held by them.
The Series B Preferred Stock is convertible, at the option of the
holder, into shares of Wyndham Class B Common Stock, par value $0.01 per
share (the "Class B Common Stock"), which in turn is convertible on a one
for one basis into the Shares. For each share of Series B Preferred Stock
converted into Class B Common Stock, the holder is entitled to receive that
number of shares of Class B Common Stock equal to $100.00 divided by the
conversion price of the Series B Preferred Stock, which is currently $8.59
per share, subject to adjustment, in addition to accrued but unpaid
dividends. Each share of the Series B Preferred Stock may also be converted
into one share of Series A Convertible Preferred Stock, $0.01 par value per
share (the "Series A Preferred Stock"), of Wyndham and, other than certain
permitted transfers under the Securities Purchase Agreement, is mandatorily
converted into one share of Series A Preferred Stock if it is transferred
to unaffiliated transferees. The Series A Preferred Stock will be
convertible into Shares at the same conversion rate from time to time in
effect at which the Series B Preferred Stock is convertible into shares of
Class B Common Stock.
Both the Series A Preferred Stock and the Series B Preferred Stock
will pay quarterly dividends at the rate per annum of 9.75% of the stated
amount thereof, with a portion paid in cash and a portion paid in
additional shares of Series A Preferred Stock or Series B Preferred Stock,
respectively. The Series A Preferred Stock will vote on an as converted
basis with the Shares on matters submitted to the holders of the Shares and
the Series B Preferred Stock will vote as a separate class on certain
specified matters, including specified "change of control" events occurring
prior to June 30, 2005. The terms of the Series A Preferred Stock are
otherwise identical to the terms of the Series B Preferred Stock, except
that the Series A Preferred Stock will not have voting rights, except as
required by law or as necessary to permit its listing.
Under the terms of the Securities Purchase Agreement and the
Certificate of Designation for the Series B Preferred Stock (the
"Certificate of Designation"), during the 170-day period following the
closing of the transactions contemplated by the Securities Purchase
Agreement, which occurred on June 30, 1999, Wyndham has the right to redeem
on a pro rata basis up to 3,000,000 of the 10,000,000 shares of Series B
Preferred Stock currently held by the Investors with the proceeds of (i) a
rights offering in which the holders of Wyndham's common stock and
Operating Partnership limited partnership interests may purchase for cash
up to 3,000,000 shares of Series A Preferred Stock (the "Rights Offering")
and/or (ii) the sale of specified assets of Wyndham in excess of a fixed
price at or prior to the closing of the Rights Offering, in each case at a
redemption price of 102% of the stated amount of $100 per share, plus
accrued but unpaid dividends to the redemption date.
Under the terms of the restated certificate of incorporation of
Wyndham (the "Restated Certificate"), on June 30, 1999, the Board of
Directors of Wyndham (the "Board") was reconstituted to consist of 19
directors, including eight Class A directors designated by the Board as it
existed prior to being reconstituted (the "Prior Board"), eight Class B
directors designated by the Investors and three Class C directors mutually
designated by the existing Board of Directors and the Investors. The Board
is further classified by term of office into three classes of directors,
each serving a staggered term of three years, until the annual meeting of
Wyndham's stockholders in 2002. Alan Leventhal, Chairman and Chief
Executive Officer of Beacon, is a Class B director.
The number of Class B directors that the Investors are entitled to
designate will decrease from seven to zero based on certain specified
beneficial ownership percentages of Wyndham common stock as more fully set
forth in the Restated Certificate.
The Securities Purchase Agreement provides that until June 30,
2004, for so long as the Investors collectively own more than 15% of the
fully diluted Wyndham common stock, in the event that Wyndham proposes to
sell Wyndham common stock or securities convertible into Wyndham common
stock (other than in the Rights Offering or during the six month period
following June 30, 1999), each of the Investors will have the right to
purchase a portion of the securities proposed to be sold equal to its
percentage ownership of Wyndham's outstanding securities. To the extent
that one or more of the Investors does not exercise its purchase rights in
full, the unexercised portion of the Investor's purchase rights will be
allocated pro rata to the other Investors.
The Securities Purchase Agreement also provides that, during the
six year period following June 30, 1999, the Investors will not (i) acquire
any shares of Wyndham common stock or securities convertible for Wyndham
common stock, unless the securities are acquired (a) directly from Wyndham
in a transaction approved by a majority of the Class A and Class C
directors, (b) as a dividend on the Series B Preferred Stock or upon
conversion of the Series B Preferred Stock, (c) as part of Wyndham's sale
of Series A Preferred Stock or upon conversion of the Series A Preferred
Stock, (d) by an affiliate of any Investor over whom the Investor does not
control voting decisions or hold over 50% of the outstanding voting
securities, (e) as non-voting preferred stock of Wyndham, (f) in the
ordinary course of the Investor's market-making activities or as investment
adviser or broker-dealer or (g) by an employee, partner or stockholder of
an Investor for his individual account if the individual does not acquire
beneficial ownership of over 100,000 shares of Wyndham common stock; or
(ii) make any public announcement or proposal or solicitation of proxies
concerning any business combination, extraordinary transaction,
restructuring or recapitalization involving Wyndham or any affiliate of
Wyndham or propose to seek representation on the Board or seek to control
or influence management, the Board or policies of Wyndham or an affiliate
of Wyndham.
As contemplated by the Securities Purchase Agreement, the Board
has adopted a shareholder rights plan (the "Rights Plan") under which
preferred stock purchase rights distributed to Wyndham's stockholders will
become exercisable in the event a third party (other than a "Grandfathered
Person") acquires beneficial ownership of at least 10% of the outstanding
shares of Wyndham common stock. Each Investor will be a "Grandfathered
Person" for so long as it complies with the standstill provisions of the
Securities Purchase Agreement described above.
On June 29, 1999, the Investors entered into a Stockholders'
Agreement (the "Stockholders' Agreement"), pursuant to which each of (i)
Apollo Management IV, L.P. and Apollo Real Estate Management IV, L.P.
(collectively, the "Apollo Stockholder") and (ii) THL Equity Advisors IV,
LLC (the "Lee Stockholder" and together with the Apollo Stockholder, the
"Lead Stockholders") will have the right, for so long as the Investors are
entitled to designate eight Class B directors to the Board, to designate
four directors to the Board. At such time as the Investors are entitled to
designate fewer than eight Class B directors, the right to designate will
be allocated as between the Apollo Stockholder and the Lee Stockholder
based on a specified formula. For so long as the Stockholders' Agreement is
in effect, each of the Investors has agreed to vote its Shares and Series B
Preferred Stock in favor of each of the director nominees of the Lead
Stockholders.
The Stockholders' Agreement provides that, for a five year period
from June 29, 1999, no Investor may offer, sell or otherwise dispose of its
shares of Series B Preferred Stock without the consent of each of the Lead
Stockholders, except for (i) transfers to affiliated transferees, (ii)
transfers of shares pursuant to the registration rights, tag along rights
or drag along provisions described below, (iii) bona fide pledges of shares
to a bank, financial institution or other lender and (iv) certain other
permitted transfers, subject in the case of certain of these transfers to
the transferee agreeing to be bound by the provisions of the Stockholders'
Agreement. The Stockholders' Agreement does provide, however, for certain
"tag-along rights" and "drag-along rights" in favor of non-transferring
stockholders with respect to proposed transfers of securities.
Pursuant to the Stockholders' Agreement, Beacon LP is permitted to
transfer shares of Series B Preferred Stock to one or more voting trusts.
In addition, the voting trusts that receive such shares may transfer shares
of Series B Preferred Stock upon the termination of the voting trust
agreement at the request of the beneficiaries of the voting trust
(excluding the Reporting Persons or any of their affiliates) on or after
the second anniversary of the Stockholders' Agreement, provided that such
termination is not at the request or solicitation of the Reporting Persons.
Once such transfer is made by the voting trust, the shares of Series B
Preferred Stock which are transferred will be converted into shares of
Series A Preferred Stock and, with the exception of shares of Series A
Preferred Stock held by the Reporting Persons and their affiliates, will
not be subject to the transfer or voting restrictions contained in the
Stockholders' Agreement. In addition, Beacon LP may from time to time
acquire interests in a voting trust from beneficiaries of the voting trust.
On February 18, 1999, the Original Investors entered into a
Registration Rights Agreement (the "Registration Rights Agreement") with
Wyndham, pursuant to which the Investors have the right to require Wyndham
to register shares of Wyndham preferred stock or shares of Wyndham common
stock into which the Wyndham preferred stock converts in one or more
registrations and/or pursuant to a shelf registration statement. The
Stockholders' Agreement provides, however, that (i) any request for a
registration by Wyndham on or prior to the third anniversary of the date of
the Stockholders' Agreement shall only be made by or with the consent of
both Lead Stockholders, (ii) any request for a registration by Wyndham
between the third and fifth anniversaries of the date of the Stockholders'
Agreement may only be made by the Apollo Stockholder, the Lee Stockholder
or Beacon LP and its affiliates and (iii) any request for a shelf
registration statement on or prior to the fifth anniversary of the date of
the Stockholders' Agreement may be made only by or with the consent of the
Lead Stockholders.
Beacon LP and the Lee Stockholder have further agreed that the Lee
Stockholder, in its capacity as a Lead Stockholder, will consult in advance
with Beacon prior to consenting to a required registration under the
Stockholders' Agreement or taking certain other actions relating to, among
other things, the designation of directors and amendments to the
Stockholders' Agreement.
The Securities Purchase Agreement, the Assignments to which any of
the Reporting Persons is a party, the Stockholders' Agreement and the
Registration Rights Agreement described above are filed as exhibits to this
Schedule 13D and are incorporated herein by reference. The Certificate of
Designation, the Restated Certificate and the Rights Plan have been filed
as exhibits to filings by Wyndham with the Securities and Exchange
Commission. The foregoing descriptions of such agreements are not intended
to be complete and are qualified in their entirety by reference to such
exhibits.
Item 5. Interest in Securities of the Issuer.
(a) and (b). By virtue of the Stockholders' Agreement and the
relationships described herein, the Investors may be deemed to constitute a
"group" within the meaning of Rule 13d-5(b) under the Exchange Act. As a
member of a group, each Reporting Person may be deemed to share voting and
dispositive power with respect to, and therefore beneficially own, the
Shares beneficially owned by the members of the group as a whole. As of the
date hereof, to the knowledge of the Reporting Persons, the Investors
collectively beneficially own an aggregate of 116,414,435 shares of Class A
Common Stock, or 41.2% of the Outstanding Shares (as defined below). For
purposes of calculating ownership percentages in this Schedule 13D, the
number of "Outstanding Shares" includes (i) the 165,886,524 Shares
outstanding on July 9, 1999 based on information provided to the Investors
by Wyndham and (ii) the Shares issuable upon conversion of the Series B
Preferred Stock held by the Investor or Investors whose ownership is being
measured, excluding for such purpose the Shares issuable upon conversion of
any other shares of Series B Preferred Stock or other convertible
securities. Each of the Reporting Persons expressly disclaims beneficial
ownership of those Investors' Shares held by any other members of such
group or of Shares held individually by certain directors or executive
officers of certain of the Investors.
Including the shares of Series B Preferred Stock currently held by
BCP Voting and Beacon LP, Beacon has obtained beneficial ownership of
17,462,166 Shares pursuant to the Securities Purchase Agreement,
representing approximately 9.5% of the Outstanding Shares. Beacon has
shared voting and shared dispositive power with respect to such Shares.
Beacon LP has obtained direct beneficial ownership of 5,238,650 Shares
pursuant to the Securities Purchase Agreement, representing 3.1% of the
Outstanding Shares. Beacon LP has shared voting and shared dispositive
power with respect to such Shares. BCP Voting has obtained direct
beneficial ownership of 12,223,516 Shares pursuant to the Voting Trust
Agreement, representing 6.9% of the Outstanding Shares. BCP Voting has
shared voting and shared dispositive power with respect to such Shares.
All of the foregoing information as to number of Shares and
percentage of the Outstanding Share beneficially owned is set forth without
giving effect to the accrual of dividends payable in additional shares of
Series B Preferred Stock. In addition, as discussed above, the numbers of
Shares listed above are each subject to reduction of up to 30% if the
Series B Preferred Stock is redeemed by Wyndham with the proceeds of the
Rights Offering, depending upon the participation in the Rights Offering.
Neither the filing of this Schedule 13D nor any of its contents
shall be deemed to constitute an admission that a Reporting Person is the
beneficial owner of any of the Shares other than those which such Reporting
Person has acquired pursuant to the Securities Purchase Agreement or an
Assignment.
(c) The responses to Items 3 and 4 of this Schedule 13D are
incorporated herein by reference.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships
with Respect to Securities of the Issuer.
The responses to Items 3, 4, and 5 of this Schedule 13D and the
Exhibits to this Schedule 13D are incorporated herein by reference.
Except for the agreements described in Items 3 and 4, to the best
knowledge of the Reporting Persons, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the persons
named in Item 2, and any other person, with respect to any securities of
Wyndham including but not limited to transfer or voting of any of the
securities, finder's fees, joint ventures, loan or option arrangements,
puts or calls, guarantees of profits, division of profits or loss, or the
giving or withholding of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1:* Joint Filing Agreement dated as of July 12,
1999 by and among the Reporting Persons.
Exhibit 2: Securities Purchase Agreement dated as of February
18, 1999 by and among Wyndham, Patriot, Patriot
American Hospitality Partnership, L.P., Wyndham
International Operating Partnership, L.P. and the
investors set forth on the signature pages thereto
(incorporated herein by reference to Exhibit 99.1
to Wyndham's Current Report on Form 8-K filed with
the Securities and Exchange Commission on March 2,
1999).
Exhibit 3:* Amendment dated as of June 28, 1999 to Securities
Purchase Agreement dated as of February 18, 1999 by
and among Wyndham, Patriot, Patriot American
Hospitality Partnership, L.P., Wyndham
International Operating Partnership, L.P. and the
Investors set forth on the signature pages thereto.
Exhibit 4:* Stockholders' Agreement dated as of June 29,
1999 by and among the Stockholders named therein.
Exhibit 5:* Registration Rights Agreement dated as of
February 18, 1999 by and among Wyndham and the
persons listed on the signature pages thereto.
Exhibit 6:* Assignment and Assumption Agreement dated as of
June 30, 1999 by and among Beacon Capital Partners,
L.P., as Assignor, and BCP Voting Inc., as
Assignee.
* Filed herewith.
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of
each of the undersigned, each of the undersigned certifies that the
information set forth in this Statement with respect to it is true,
complete and correct.
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc.,
as general partner
By: /s/ Alan M. Leventhal
--------------------------------
Name: Alan M. Leventhal
Title: Chairman and Chief Executive
Officer
BCP VOTING, INC.
By: /s/ Lionel P. Fortin
--------------------------------
Name: Lionel P. Fortin
Title: President
BEACON CAPITAL PARTNERS, INC.
By: /s/ Alan M. Leventhal
--------------------------------
Name: Alan M. Leventhal
Title: Chairman and Chief Executive
Officer
SCHEDULE A
The name, business address, present principal occupation or
employment, and the name, principal business and address of any corporation
or other organization in which such employment is conducted, of each of the
directors and executive officers of Beacon is set forth below. If no
business address is given, the director's or officer's address is c/o
Beacon Capital Partners, Inc., One Federal Street, 26th Floor, Boston,
Massachusetts 02110. Unless otherwise indicated, each occupation set forth
opposite an executive officer's name refers to employment with Beacon.
Directors of Beacon are indicated with an asterisk.
Present Principal Occupation
or Employment and
Name and Principal Business of Corporation
Business Address in Which Employment is Conducted
---------------- ---------------------------------
Alan M. Leventhal* Chairman of the Board of Directors and
Chief Executive Officer of Beacon
Lionel P. Fortin* President, Chief Operating Officer and
Director of Beacon
William A. Bonn Senior Vice President and General Counsel
of Beacon
Jeremy B. Fletcher Senior Vice President of Beacon and Chief
Executive Officer of Beacon Capital
Partners West, a division of Beacon
John Halsted Senior Vice President of BCP and Chief
Investment Officer of Beacon Venture
Partners, Inc.
Douglas S. Mitchell Senior Vice President-Development of Beacon
Erin R. O'Boyle Senior Vice President and Chief Investment
Officer of Beacon
Randy J. Parker Senior Vice President and Chief Financial
Officer of Beacon
E. Valjean Wheeler Senior Vice President of Beacon and Chief
Executive Beacon Capital Partners Central,
a division of Beacon
Thomas Ragno Senior Vice President-Management and
Leasing of Beacon
Stephen T. Clark* President of Cypress Realty, Inc.; Director
of Beacon
Steven Shulman* Principal of The Hampton Group; Managing
Director of Latona Associates, Inc.;
Director of Beacon
Scott M. Sperling* Managing Director of Thomas H. Lee Company;
c/o Thomas H. Lee Company Director of Beacon
Boston, Massachusetts 02109
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the
Securities Exchange Act of 1934, as amended, the undersigned hereby agree
to the joint filing with all other Reporting Persons listed below on behalf
of each of them of a Statement on Schedule 13D (including any amendments
thereto) with respect to the common stock, par value $0.01 per share, of
Wyndham International, Inc., a Delaware corporation. The undersigned
further consent and agree to the inclusion of this Agreement as an Exhibit
to such Schedule 13D. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned have executed this
agreement as of the 12th day of July, 1999.
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc.,
as general partner
By: /s/ Alan M. Leventhal
--------------------------------
Name: Alan M. Leventhal
Title: Chairman and Chief Executive
Officer
BCP VOTING, INC.
By: /s/ Lionel P. Fortin
--------------------------------
Name: Lionel P. Fortin
Title: President
BEACON CAPITAL PARTNERS, INC.
By: /s/ Alan M. Leventhal
--------------------------------
Name: Alan M. Leventhal
Title: Chairman and Chief Executive
Officer
Exhibit 3
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
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, 1999, Wyndham 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
Thomas H. Lee Equity Fund IV, L.P., Thomas H. Lee Foreign Fund
IV, L.P., Thomas H. Lee 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.
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.
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: /s/ Anne Raymond
------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL, INC.
By: /s/ Anne Raymond
------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/ Anne Raymond
------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General
Partner
By: /s/ Anne Raymond
------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
[Remainder of page intentionally left blank]
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: /s/ Ricardo Koenigsberger
--------------------------------------------
Name: Ricardo Koenigsberger
Title: Vice President
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: /s/ Eric Press
--------------------------------------------
Name: Eric Press
Title: Vice President
Address: 1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M.Abbrecht
--------------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/ John C. Halsted
--------------------------------------------
Name: John C. Halsted
Title: Senior Vice President
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I,
L.L.C.
By: /s/ Kenneth T. Rosen
--------------------------------------------
Name: Kenneth T. Rosen
Title: Manager
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
Exhibit 4
- ------------------------------------------------------------------------------
-------------------------------
WYNDHAM INTERNATIONAL, INC.
-------------------------------
STOCKHOLDERS' AGREEMENT
BY AND AMONG
THE STOCKHOLDERS NAMED
ON THE SIGNATURE PAGES HERETO
-------------------------------
Dated as of June 29, 1999
-------------------------------
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
Section Heading Page
Article 1. Certain Definitions...........................................1
Article 2. Board of Directors............................................7
Section 2.1.Board of Directors......................................7
Article 3. Restrictions on Transfer......................................7
Section 3.1.Restrictions on Transfer................................8
Section 3.2.Exceptions to Restrictions..............................8
Section 3.3.Binding Effect on Transferees...........................9
Section 3.4.Notifications Regarding Transfers.......................9
Section 3.5.Restrictions on Conversion..............................9
Article 4. Tag-Along Rights; Drag-Along Rights..........................10
Section 4.1.Tag-Along Rights.......................................11
Section 4.2.Drag-Along Rights......................................11
Article 5. Registration Rights..........................................12
Section 5.1.Registration Rights....................................12
Article 6. Miscellaneous................................................13
Section 6.1.Further Actions; Cooperation...........................13
Section 6.2.Successors and Assigns.................................13
Section 6.3.Representatives........................................14
Section 6.4.Amendment; Modification; Waiver........................14
Section 6.5.Notices................................................14
Section 6.6.Entire Agreement: Governing Law........................14
Section 6.7.Injunctive Relief......................................15
Section 6.8 Headings...............................................15
Section 6.9.Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances.........................15
Section 6.10.Counterparts..........................................15
Section 6.11.Jurisdiction; Forum...................................16
Section 6.12.Termination...........................................16
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June 29,
1999, by and among the parties named on the signature pages hereto
(collectively, the "Stockholders") and such other persons that become
parties to this Agreement as described herein.
W I T N E S S E T H:
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as of
February 18, 1999, as amended, by and among Wyndham International, Inc.
(the "Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partnership, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the
"Original Investors") and (ii) Assignment and Assumption Agreements by and
among the Company, Patriot and the Stockholders, the Stockholders will
purchase shares of Series B Convertible Preferred Stock (the "Shares") of
the Company; and
WHEREAS, the parties hereto deem it in their best interests to enter
into this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of their securities
of the Company and to provide for certain rights and obligations with
respect thereto as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as
follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" means, as to any Person, (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of
such Person or of any Person which directly or indirectly controls, is
controlled by, or is under common control with such Person, and (c) any
individual who is a member of the immediate family of any Person described
in clause (a) or clause (b) above. For purposes of this definition,
"control" of a Person shall mean the power, direct or indirect, (i) to vote
or direct the voting of 5% or more of the Voting Stock of such Person or
(ii) to direct or cause the direction of the management and policies of
such Person whether by ownership of Capital Stock, by contract or
otherwise.
"Agreement" means this Agreement as in effect on the date hereof and
as hereafter from time to time amended, modified or supplemented in
accordance with the terms hereof.
"Apollo Investors" means Apollo Real Estate Investment Fund IV, L.P.,
Apollo Investment Fund IV, L.P., Strategic Real Estate Investments I, LLC
and their respective Permitted Assignees and Permitted Third Party
Transferees.
"Apollo Stockholder" means, collectively, Apollo Management IV, L.P.
and Apollo Real Estate Management IV, L.P.
"Beacon Affiliate" means any director or officer, or member of the
immediate family of a director or officer, of any entity that is included
within the definition of "Beacon Stockholder" in office at the time of the
relevant determination, and any corporation, partnership, limited liability
company, trust or other entity that is controlled by, or the equity
interests of which are owned by, any of the foregoing individuals.
"Beacon Stockholder" means, collectively, Beacon Capital Partners,
L.P., Beacon Capital Partners, Inc., BCP Voting, Inc., as voting trustee of
the First Beacon Voting Trust, and any other entity that is an Affiliate of
Beacon Capital Partners, L.P. that becomes a trustee of the First Beacon
Voting Trust or the Second Beacon Voting Trust, if formed, and any
successors thereto.
"Beacon Voting Trust" means, collectively, the First Beacon Voting
Trust and the Second Beacon Voting Trust.
"Beacon Voting Trust Agreement" means, collectively, (i) the Voting
Trust Agreement, dated as of June 8, 1999, as amended, by and between
Beacon Capital Partners, L.P., as the initial beneficiary of the First
Beacon Voting Trust, and BCP Voting, Inc, as trustee of the First Beacon
Voting Trust, an accurate copy of which has been provided to the Lead
Stockholders, and (ii) if the Second Beacon Voting Trust is formed, the
Voting Trust Agreement to be entered into by and between Beacon Capital
Partners, L.P., as the initial beneficiary of the Second Beacon Voting
Trust, and the trustee of the Second Beacon Voting Trust; provided, that
(x) the proposed form of the Voting Trust Agreement for the Second Beacon
Voting Trust and the proposed form of any amendment to the Voting Trust
Agreement for the First Beacon Voting Trust or the Second Beacon Voting
Trust shall be provided to the Lead Stockholders for their review at least
ten days in advance of the earlier of its execution or distribution and (y)
the Lead Stockholders shall have approved in advance of the earlier of its
execution or distribution any provision of the Second Beacon Voting Trust
or any amendment to the Voting Trust Agreement for the First Beacon Voting
Trust or the Second Beacon Voting Trust that alters or is otherwise
inconsistent with the definition of "Permitted Voting Trust Transfer"
contained in this Agreement or any other provision affecting those matters
addressed in this Agreement.
"Board of Directors" means the Board of Directors of the Company as
from time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date
hereof and as hereafter further amended.
"Capital Stock" means and includes (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock of any Person, including, without limitation, shares of
preferred or preference stock, (ii) all partnership interests (whether
general or limited) in any Person which is a partnership, (iii) all
membership interests or limited liability company interests in any limited
liability company and (iv) all equity or ownership interests in any Person
of any other type.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as in effect on the date hereof and as hereafter amended,
modified, supplemented or restated.
"Class A Common Stock" means the Class A common stock, par value
$0.01 per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value
$0.01 per share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common
Stock or, if the Company's common stock ceases to be so designated, the
common stock, par value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation,
and any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and
any other securities convertible into, exercisable for or exchangeable with
Common Stock or Preferred Stock and other equity security issued by the
Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P.
Voting Trust.
"Lead Stockholders" means the Apollo Stockholder and the Lee
Stockholder; provided that if either of the Lead Stockholders and its
respective Affiliates cease to collectively beneficially own at least 10%
of the shares of Common Stock (including shares of Common Stock issuable
upon conversion of securities convertible, exchangeable or exercisable for
shares of Common Stock) beneficially owned by such Lead Stockholder and its
Affiliates immediately following the closing of the transactions
contemplated by the Securities Purchase Agreement, then such Lead
Stockholder shall cease to be a Lead Stockholder.
"Lee Director Percentage" means (i) the total number of shares of
Common Stock (including, without duplication, shares of Common Stock
issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) beneficially owned by the Lee
Investors (excluding open market purchases) divided by (ii) the total
number of shares of Common Stock (including, without duplication, shares of
Common Stock issuable upon conversion of securities convertible,
exchangeable or exercisable for shares of Common Stock) beneficially owned
by the Apollo Investors and the Lee Investors (excluding open market
purchases).
"Lee Investors" means Thomas H. Lee Equity Fund IV, L.P., Thomas H.
Lee Foreign Fund IV, L.P., Thomas H. Lee Charitable Investment L.P.,
THL-CCI Limited Partnership, the Beacon Stockholder and their respective
Permitted Assignees and Permitted Third Party Transferees.
"Lee Stockholder" means THL Equity Advisors IV, LLC, in its capacity
as general partner of Thomas H. Lee Equity Fund IV, L.P.
"Permitted Assignee" shall have the same meaning as set forth in the
Securities Purchase Agreement.
"Permitted Beacon Voting Trust Transfer" means a transfer of Shares
through a termination of the Beacon Voting Trust on or after the second
anniversary of the date of this Agreement that complies with each of the
following requirements: (i) the termination shall be made pursuant to
Section 15(a)(iv) of the Beacon Voting Trust Agreement at the request of
beneficiaries of the Beacon Voting Trust that shall not include the Beacon
Stockholder or any Beacon Affiliate, such termination shall not have been
directly or indirectly proposed, solicited or encouraged by the Beacon
Stockholder (other than the required action as trustee under such Section
15(a)(iv)) or by any Beacon Affiliate and the Beacon Stockholder and the
Beacon Affiliates shall have used their reasonable efforts to discourage
such termination; (ii) the Shares so transferred shall be converted into
shares of Series A Preferred Stock; (iii) any shares of Series A Preferred
Stock to be received in connection with such termination by the Beacon
Stockholder or by any Beacon Affiliate shall remain subject to the
transfer, conversion and other restrictions of this Agreement and the
Beacon Stockholder and any such Beacon Affiliate shall execute any
agreement required under Section 3.3 of this Agreement to evidence the
foregoing; (iv) each of the transferees of such Shares shall have
acknowledged in form and substance satisfactory to the Lead Stockholders
such transferee's agreement to be bound by Section 5.1(b) of this
Agreement; and (v) such termination and the transfer of Shares made in
connection therewith shall be made in compliance with all applicable law.
"Permitted Third Party Transferee" shall have the same meaning as set
forth in the Securities Purchase Agreement.
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization,
business, trust or any other entity or organization, including a government
or any subdivision or agency thereof.
"Preferred Stock" means the Series A Preferred Stock and the Series B
Preferred Stock.
"Pro Rata Portion" means, with reference to any Stockholder at any
time, a fraction, the numerator of which is the number of votes represented
by the Shares and the Class B Common Stock then issued and outstanding and
held by such Stockholder, and the denominator of which is the aggregate
number of votes represented by the Shares and the Class B Common Stock then
issued and outstanding and held by the Stockholders taken together.
"Registrable Securities" means (i) any shares of Class B Common Stock
issued or issuable upon conversion of any of the Shares, (ii) any shares of
Series A Preferred Stock issued or issuable upon conversion of the Shares,
(iii) any shares of Class A Common Stock issued or issuable upon conversion
of the Series A Preferred Stock described in clause (ii) above, and (iv)
any securities issued or issuable with respect to any Series A Preferred
Stock, Series B Preferred Stock, Class A Common Stock or Class B Common
Stock described in clauses (i), (ii) and (iii) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 18, 1999, by and among the Company and the
persons listed on the signature pages thereof.
"Restated Certificate of Incorporation" means the Restated
Certificate of Incorporation of the Company, as proposed to be filed with
the Secretary of State of the State of Delaware on the date of the Closing
under the Securities Purchase Agreement.
"Required Investor Director Percentage" means 1.0 divided by the
total number of Class B directors of the Company that may be elected
pursuant to Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L.P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
"Securities Act" means, as of any date, the Securities Act of 1933,
as amended, or any similar Federal statute then in effect and superseding
such act, and any reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar Federal
statute, and the rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
references in this Agreement to the "Shares" shall be deemed to include
additional shares of Series B Preferred Stock that are issued pursuant to
the Certificate of Designation for such Preferred Stock.
"Stockholders" shall mean (i) the Stockholders named on the signature
page hereto and (ii) each Third Party Transferee who becomes a party to or
bound by the provisions of this Agreement in accordance with the terms
hereof, in each case for so long as such person continues to hold Equity
Securities in the Company.
"Third Party Transferee" has the meaning specified in Section 3.2.
"Voting Stock" means Capital Stock of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote in the election of directors (or Persons performing similar
functions).
Article 2. Board of Directors
Section 2.1.Board of Directors. (a) For so long as this Agreement is
in effect, each of the Stockholders shall vote all of the Voting Stock
owned or held of record by such Stockholder so as to elect, and to continue
in office, each of the directors of the Company designated by the Lead
Stockholders. So long as the Stockholders are entitled to elect eight Class
B directors pursuant to the Restated Certificate of Incorporation, the
Apollo Stockholder shall have the right to designate four Class B directors
of the Company and the Lee Stockholder shall have the right to designate
four Class B directors of the Company. In the event that the number of
Class B directors of the Company that the Stockholders are entitled to
elect is reduced to below eight pursuant to Section V(D) of the Restated
Certificate of Incorporation, (i) the number of Class B directors that the
Lee Stockholder shall be entitled to designate shall be equal to the Lee
Director Percentage divided by the Required Investor Director Percentage
(rounded up or down to the nearest integer) and (ii) the number of Class B
directors that the Apollo Stockholder shall be entitled to designate shall
be equal to the total number of Class B directors of the Company that the
Stockholders are entitled to elect pursuant to Section V(D) of the Restated
Certificate of Incorporation minus the number of Class B directors that the
Lee Stockholder is entitled to designate pursuant to this Section 2.1(a).
(b) If either of the Lead Stockholders shall notify the other
Stockholders of its desire to remove, with or without cause, any director
of the Company previously designated by it, each Stockholder shall vote all
of the shares of Voting Stock owned or held by such Stockholder and take
all other necessary actions to cause the removal of any director designated
by such Lead Stockholder pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead Stockholder
shall for any reason cease to serve as a member of the Board of Directors
during his term of office, the resulting vacancy on the Board of Directors
will be filled by a representative designated by such Lead Stockholder.
Article 3. Restrictions on Transfer
Section 3.1.Restrictions on Transfer.
(a) Each Stockholder agrees that for a period of five years following
the date of this Agreement, such Stockholder will not, directly or
indirectly, offer, sell, transfer, assign or otherwise dispose of (or make
any exchange, gift, assignment or pledge of) (collectively, for purposes of
Articles 3 and 4 only, a "transfer") any of its Shares, any shares of
Common Stock or Preferred Stock issuable upon conversion of Shares, or
options, warrants or rights to subscribe for or purchase Shares, Preferred
Stock or Common Stock that may be issued hereafter to such Stockholder,
except as provided in this Article 3. In addition to the other restrictions
contained in this Article 3, each Stockholder agrees that it will not,
directly or indirectly, transfer any of its Shares or any shares of Common
Stock or Preferred Stock issuable upon conversion of Shares except as
permitted under the Securities Act and other applicable securities laws.
(b) Any attempt by any Stockholder to transfer any Shares and any
Common Stock or Preferred Stock issuable upon conversion of the Shares not
in compliance with this Agreement shall be null and void. Without limiting
the foregoing, it is expressly understood and agreed that any transfer of
Shares by the Beacon Voting Trust that is not the Permitted Beacon Voting
Trust Transfer or a transfer otherwise expressly permitted under this
Agreement shall be null and void and not be recorded on the transfer books
of the Company.
Section 3.2.Exceptions to Restrictions. The provisions of Section 3.1
shall not apply to any of the following transfers:
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its
respective Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, in accordance with Article 4 or 5
hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or Preferred
Stock issuable upon conversion of such Shares, to a bank, financial
institution or other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third
Party Transferee") execute (or, in the case of clause (d) above, that the
pledging Stockholder use its reasonable efforts to cause the pledgee
referred to therein to execute prior to any foreclosure of the shares so
pledged) the agreement referred to in Section 3.3 hereof. The provisions of
this Agreement shall be applied to the Shares, including the shares of
Common Stock or Preferred Stock issuable upon conversion of Shares,
acquired by any Third Party Transferee of a Stockholder in the same manner
and to the same extent as such provisions were applicable to such Shares,
or Common Stock or Preferred Stock issuable upon conversion of Shares, in
the hands of such Stockholder. Any reference in this Agreement to the
Stockholders shall be deemed to include each Stockholder and its respective
Third Party Transferees.
No transfer of any Shares, or shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, to a Third Party Transferee shall
be effective unless such transfer is made (i) pursuant to an effective
registration statement under the Securities Act and is qualified under
applicable state securities or blue sky laws or (ii) without registration
under the Securities Act and qualification under applicable state
securities or blue sky laws, as a result of the availability of an
exemption from registration and qualification under such laws, and such
Stockholder shall have furnished to the Lead Stockholders a certificate to
that effect; provided, however, that no such certificate or opinion of
counsel shall be required in connection with a transfer of shares of Common
Stock pursuant to Sections 4.1 or 4.2 hereof.
Section 3.3.Binding Effect on Transferees. The obligations of a party
hereto shall be binding upon any transferee to whom Shares or Common Stock
or Preferred Stock issuable upon conversion of such Shares are transferred
by such party, whether or not such transfer is permitted under the terms of
this Agreement; provided, that the foregoing shall not apply to (a)
transferees (other than the Beacon Affiliates) pursuant to the Permitted
Beacon Voting Trust Transfer, (b) transferees pursuant to transfers
permitted under Section 3.2(c) or (c) transferees for which the transfer
occurs following the fifth anniversary of the date of this Agreement
(transferees permitted under clause (a), (b) or (c), collectively, the
"Exempted Transferees") . Prior to consummation of any such transfer other
than to an Exempted Transferee, such party shall cause the transferee to
execute an agreement in form and substance reasonably satisfactory to the
Lead Stockholders, providing that such transferee shall be bound by and
shall fully comply with the terms of this Agreement.
Section 3.4.Notifications Regarding Transfers. To the extent that any
Stockholder proposes a transfer pursuant to Section 3.2, such Stockholder
shall provide notice to the Lead Stockholders at least ten Business Days
prior to the proposed transfer date of the number of Shares proposed to be
transferred. Not less that two Business Days prior to a proposed transfer
date requiring the approval of the Lead Stockholders, the Lead Stockholders
shall notify such Stockholder of whether the transfer has been approved, it
being agreed and understood that the Permitted Beacon Voting Trust Transfer
shall not require such approval.
Section 3.5.Restrictions on Conversion. Each Stockholder understands
and agrees that, for a period of five years following the date of this
Agreement, such Stockholder will not convert any Shares into shares of
Common Stock or Series A Preferred Stock without the consent of each of the
Lead Stockholders, except in connection with (i) an exercise of such
Stockholder's rights under Section 4.1 in connection with a sale of Shares
by one of the Lead Stockholders, (ii) a sale of Registrable Securities
pursuant to Section 5.1 or (iii) the Permitted Beacon Voting Trust Transfer
or a subsequent conversion of shares of Series A Preferred Stock received
thereunder (other than by a Beacon Affiliate).
Article 4. Tag-Along Rights; Drag-Along Rights
Section 4.1. Tag-Along Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
except in the case of (i) transfers by the Stockholders to a Third Party
Transferee referred to in Section 3.2(b), (c), (d) and (e) hereof, (ii)
transactions where rights are exercised pursuant to Section 4.2 hereof and
(iii) sales pursuant to Article 5 hereof or in connection with a sale
pursuant to Rule 144 under the Securities Act of 1933, each Stockholder
shall refrain from effecting any transfer of Shares, Series A Preferred
Stock or Class B Common Stock unless, prior to the consummation thereof,
the other Stockholders shall have been afforded the opportunity to join in
such transfer on a pro rata basis, as provided in this Section 4.1 (each
such Stockholder, a "Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the Stockholder
proposing a transfer shall cause the person or group that proposes to
acquire such shares (the "Proposed Purchaser") to offer in writing (the
"Tag-Along Offer") to purchase Shares, Series A Preferred Stock or Class B
Common Stock owned by the Tag-Along Person, such that the number of Shares,
Series A Preferred Stock or Class B Common Stock so offered to be purchased
from the Tag-Along Person shall be equal to the product obtained by
multiplying the aggregate number of Shares, Series A Preferred Stock or
Class B Common Stock proposed to be purchased by the Proposed Purchaser by
such Tag-Along Person's Pro Rata Portion. If the Purchase Offer is accepted
by any Tag-Along Person, then the number of Shares, Series A Preferred
Stock or Class B Common Stock to be sold to the Proposed Purchaser by the
Stockholder proposing the transfer, shall be reduced by the aggregate
number of Shares, Series A Preferred Stock or Class B Common Stock to be
purchased by the Proposed Purchaser from such Tag-Along Person pursuant
thereto. Such purchase shall be made on the same terms and conditions
(including timing of receipt of consideration) as the Proposed Purchaser
shall have offered to purchase Shares, Series A Preferred Stock or Class B
Common Stock to be sold by the Stockholder who proposed the transfer (net,
in the case of any options, warrants or rights, of any amounts required to
be paid by the holder upon exercise thereof). The Tag-Along Person shall
have 20 days from the date of receipt of the Purchase Offer during which to
accept such Purchase Offer, and the closing of such purchase shall occur
within 30 days after such acceptance or at such other time as the Tag-
Along Person and the Proposed Purchaser may agree.
Section 4.2. Drag-Along Rights.
(a) If both of the Lead Stockholders propose a transfer in connection
with a sale or exchange, whether directly or pursuant to a merger,
consolidation or otherwise (a "Drag- Along Sale"), the Lead Stockholders
may require all other Stockholders to sell all Shares proposed to be sold
therein ("Drag-Along Rights") then held by every Stockholder, for the same
consideration and otherwise on the same terms and conditions (including
timing of receipt of consideration) as the sale by Lead Stockholders;
provided, however, that if either of the Lead Stockholders and its
respective Affiliates cease to collectively beneficially own at least 20%
of the shares of Common Stock (including shares of Common Stock issuable
upon conversion of securities convertible, exchangeable or exercisable for
shares of Common Stock) beneficially owned by them immediately following
the closing of the transactions contemplated by the Securities Purchase
Agreement, Stockholders collectively holding more than 50% of the voting
power represented by the outstanding Shares and shares of Class B Common
Stock (the "Majority Stockholders") shall have the ability to exercise the
Drag-Along Rights described in this Section 4.2.
(b) The Lead Stockholders or the Majority Stockholders, as
applicable, shall provide written notice of such Drag-Along Sale to the
other Stockholders (a "Drag-Along Notice") not later than the 15th day
prior to the proposed Drag-Along Sale. The Drag-Along Notice shall identify
the transferee, the number of Shares and/or shares of Class B Common Stock
to be transferred, the consideration for which a transfer is proposed to be
made (the "Drag-Along Sale Price(s)") and all other material terms and
conditions of the Drag-Along Sale. Subject to Section 4.2(d), each
Stockholder shall be required to participate in the Drag-Along Sale on the
terms and conditions set forth in the Drag-Along Notice and to tender all
its Shares and shares of Class B Common Stock as set forth below. The
price(s) payable in such transfer shall be the Drag-Along Sale Price(s).
Not later than the 10th day following the date of the Drag-Along Notice
(the "Drag-Along Notice Period"), each of the Stockholders shall deliver to
a representative of Lead Stockholders or the Majority Stockholders, as
applicable, designated in the Drag-Along Notice certificates representing
all the Shares and shares of Class B Common Stock beneficially owned and
held by such Stockholder, duly endorsed, together with all other documents
required to be executed in connection with such Drag-Along Sale, or if such
delivery is not permitted by applicable law, an unconditional agreement to
deliver such shares pursuant to this Section 4.2 at the closing for such
Drag-Along Sale against delivery to such Stockholder of the consideration
therefor.
(c) The Lead Stockholders or the Majority Stockholders, as
applicable, shall have a period of 90 days from the date of receipt of the
Drag-Along Notice to consummate the Drag-Along Sale on the terms and
conditions set forth in such Drag-Along Sale Notice. If the Drag-Along Sale
shall not have been consummated during such period, the Lead Stockholders
or the Majority Stockholders, as applicable, shall return to each of the
Stockholders all certificates or other evidence of title and ownership
representing shares that such Stockholders delivered for transfer pursuant
hereto, together with any documents in the possession of the Lead
Stockholders or the Majority Stockholders, as applicable, executed by the
other Stockholders in connection with such proposed transfer, and all the
restrictions on transfer contained in this Agreement or otherwise
applicable at such time with respect to shares owned by the Stockholders
shall again be in effect.
(d) Concurrently with the consummation of the transfer of shares
pursuant to this Section 4.2, the Lead Stockholders or the Majority
Stockholders, as applicable, shall give notice thereof to all Stockholders,
shall remit to each of the Stockholders who have surrendered their
certificates or other evidence of title and ownership the total
consideration (by bank or certified check) for the shares transferred
pursuant hereto and shall furnish such other evidence of the completion and
time of completion of such transfer and the terms thereof as may be
reasonably requested by such Stockholders.
Article 5. Registration Rights
Section 5.1.Registration Rights.
(a) Each of the Stockholders shall be entitled to the benefits of,
and shall be bound by the obligations of, the Registration Rights Agreement
with respect to any Registrable Securities held by such Stockholder as if
the Stockholder were a party to the Registration Rights Agreement;
provided, however, that (i) any request for a Required Registration (as
such term is defined in the Registration Rights Agreement) pursuant to
Section 2.1(a) of the Registration Rights Agreement made on or prior to the
third anniversary of the date of this Agreement shall only be made by or
with the consent of both of the Lead Stockholders, (ii) any request for a
Required Registration pursuant to Section 2.1(a) of the Registration Rights
Agreement made during the period following the third anniversary of the
date of this Agreement through the fifth anniversary of the date of this
Agreement shall only be made by the Apollo Stockholder, the Lee Stockholder
or the Beacon Stockholder and (iii) any request for a Shelf (as such term
is defined in the Registration Rights Agreement) pursuant to Section 2.1(a)
of the Registration Rights Agreement made on or prior to the fifth
anniversary of the date of this Agreement shall only be made by or with the
consent of both of the Lead Stockholders. Notwithstanding the foregoing,
each of the Stockholders shall be entitled to exercise its rights to
include its Registrable Securities in a registration effected by the
Company pursuant to Section 2.1(b) of the Registration Rights Agreement if
such registration is a Required Registration made in accordance with the
immediately preceding sentence or if either Lead Stockholder is including
Registrable Securities in such registration. Each of the Lead Stockholders
agrees for the benefit of the other Lead Stockholder that it will not,
without the approval of the other Lead Stockholder, include its Registrable
Securities in a registration effected by the Company pursuant to Section
2.1(b) of the Registration Rights Agreement during the three year period
following the date of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the
Registration Rights Agreement to the contrary, in the event that the
Permitted Beacon Voting Trust Transfer occurs, none of the shares of
Preferred Stock or Common Stock that are received by the beneficiaries of
the Beacon Voting Trust in connection therewith or are issued or issuable
upon conversion of such shares or shares received upon such conversion
shall be Registrable Securities, other than those shares that are held by
the Beacon Stockholder or by a Beacon Affiliate and remain subject to the
transfer, conversion and other restrictions of this Agreement. The Beacon
Stockholder, in its capacities as the trustee and initial beneficiary of
the First Beacon Voting Trust and the Second Beacon Voting Trust, hereby
consents and agrees to be bound by the provisions of this Section 5.1(b) on
behalf of itself and all future beneficiaries of the Beacon Voting Trust
and acknowledges and agrees that it has the sole responsibility to notify
all such beneficiaries or transferees of Shares owned by the Beacon Voting
Trust of the terms of this Section 5.1(b) and the fact that they are bound
thereby.
Article 6. Miscellaneous
Section 6.1.Further Actions; Cooperation. Each of the Stockholders
agrees to use its reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, and to assist and cooperate with
the other parties in doing, all things necessary, proper or advisable in
connection with the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, each of the Stockholders (i)
acknowledges that the Stockholders will prepare and file with the
Securities and Exchange Commission filings under the Securities Exchange
Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "Exchange Act"), including under Section 13(d) of the
Exchange Act, relating to their beneficial ownership of the Securities and
(ii) agrees to use its reasonable efforts to assist and cooperate with the
other parties in promptly preparing, reviewing and executing any such
filings under the Exchange Act, including any amendments thereto.
Section 6.2.Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the
respective successors and assigns of the parties hereto. No Stockholder may
assign any of its rights hereunder to any Person other than a transferee
that has complied in all respects with the requirements of this Agreement
(including, without limitation, Section 3.4 hereof). If any transferee of
any Stockholder shall acquire any Shares or Common Stock issuable upon
conversion of such Shares, in any manner, whether by operation of law or
otherwise, such shares shall be held subject to all of the terms of this
Agreement, and by taking and holding such shares such Person shall be
entitled to receive the benefits of and be conclusively deemed to have
agreed to be bound by and to comply with all of the terms and provisions of
this Agreement.
Section 6.3.Representatives. Each of the Stockholders hereby
designates and appoints (and each Third Party Transferee of each such
Stockholders is hereby deemed to have so designated and appointed) the Lead
Stockholders to serve as the representatives of each such Stockholder to
administer and make determinations as to matters arising or contemplated by
the Securities Purchase Agreement and related documentation, including
without limitation indemnification obligations, disputes and other rights
and obligations. Each of the Stockholders hereby agrees and acknowledges
that the Lead Stockholders shall be the only persons authorized to take any
action so required, authorized or contemplated by the Securities Purchase
Agreement by each such person. Each such person hereby authorizes (and each
such Third Party Transferee shall be deemed to have authorized) the other
parties hereto to disregard any notice or other action taken by such person
pursuant to the Securities Purchase Agreement except for the Lead
Stockholders. The other parties hereto are and will be entitled to rely on
any action so taken by the Lead Stockholders.
Section 6.4.Amendment; Modification; Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in
writing executed by the Majority Stockholders at the time of such proposed
amendment, modification or waiver; provided, however, that, so long as
either of the Lead Stockholders and their respective Affiliates
beneficially own at least 20% of the shares of Common Stock (including
shares of Common Stock issuable upon conversion of securities convertible,
exchangeable or exercisable for shares of Common Stock) initially owned by
such Stockholders at the closing of the transactions contemplated by the
Securities Purchase Agreement, this Agreement may not be amended or
modified without such Lead Stockholder's consent.
Section 6.5.Notices. All notices and other communications provided
for hereunder shall be in writing by hand delivery, telex, telecopier, or
any courier guaranteeing overnight delivery (i) if to the Stockholders as
of the date hereof, the address set forth next to the Stockholder's name on
the signature pages hereof, with a copy to Randall H. Doud, Esq.,
telecopier number (212) 735-2000, and (ii) with respect to each Stockholder
who becomes such after the date hereof, the address of such Stockholder in
the stock records of the Company. All such communications shall be deemed
to have been given or made when so delivered by hand or sent by telecopy,
or three business days after being so mailed.
Section 6.6.Entire Agreement: Governing Law.
(a) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties hereto with respect to the subject transactions
contemplated hereby and supersede all prior oral and written agreements and
memoranda and undertakings among the parties hereto with regard to this
subject matter.
(B) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE
OF LAW PRINCIPLES
THEREOF).
Section 6.7.Injunctive Relief. The Stockholders acknowledge and agree
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief
from any court of competent jurisdiction, restraining any Stockholder from
committing any violations of the provisions of this Agreement.
Section 6.8.Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 6.9.Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances. The provisions of this Agreement shall
apply, to the full extent set forth herein with respect to the Shares and
Common Stock and Preferred Stock issuable upon conversion of such Shares
and to any and all equity or debt securities of the Company or any
successor or assign of the Company (whether by merger, consolidation, sale
of assets, or otherwise) which may be issued in respect of, in exchange
for, or in substitution of, such equity or debt securities and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, reclassifications, recapitalizations, reorganizations and the
like occurring after the date hereof.
Section 6.10 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
Section 6.11Jurisdiction; Forum. With respect to any suit, action or
proceeding ("Proceeding") arising out of or relating to this Agreement,
each of the parties hereto hereby irrevocably:
(a) submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York, the United States
District Court for the District of Delaware, or any state court located in
the State of Delaware, County of Newcastle (the "Selected Courts") and
waives any objection to venue being laid in the Selected Courts whether
based on the grounds of forum non conveniens or otherwise;
(b) consents to service of process in any Proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or by
recognized international express carrier or delivery service, to such party
at its respective address referred to in Section 6.4 hereof; provided,
however, that nothing herein shall affect the right of any party hereto to
serve process in any other manner permitted by law; and
(c) waives, to the fullest extent permitted by law, any right it may
have to a trial by jury in any Proceeding.
Section 6.12 Termination. Upon the mutual consent of all of the
parties hereto or at such earlier time as each of the Lead Stockholders and
its respective Affiliates ceases to collectively beneficially own at least
10% of the shares of Common Stock (including shares of Common Stock
issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) beneficially owned by such Lead
Stockholder and its Affiliates immediately following the closing of the
transactions contemplated by the Securities Purchase Agreement, this
Agreement shall terminate and be of no further force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
APOLLO REAL ESTATE
INVESTMENT FUND IV, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc.,
its General Partner
By: /s/ Ricardo Koenigsberger
-------------------------------------------
Name: Ricardo Koenigsberger
Title: Vice President
Address: c/o Apollo Real Estate Management
IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
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: /s/ Ricardo Koenigsberger
-------------------------------------------
Name: Eric Press
Title: Vice President
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Scott Sperling
-------------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Scott Sperling
-------------------------------------------
Name: Scott Sperling
Title: Managing Director
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Thomas H. Lee
-------------------------------------------
Name: Thomas H. Lee
Title: Manager
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Scott Sperling
-------------------------------------------
Name: Scott Sperling
Title: Managing Director
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/ John C. Halsted
-------------------------------------------
Name: John C. Halsted
Title: Senior Vice President
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners, L.P. Voting Trust
By: /s/ John C. Halsted
-------------------------------------------
Name: John C. Halsted
Title: Vice President
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/ Kenneth T. Rosen
-------------------------------------------
Name: Kenneth T. Rosen
Title: Manager
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
AIF/THL PAH, LLC
By: /s/ Michael D. Weiner
-------------------------------------------
Name: Michael D. Weiner
Title: Vice President
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
New York, NY 10019
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By: /s/ David Gilbert
-------------------------------------------
Name: David Gilbert
Title: Vice President
Address: 380 Madison Avenue
12th Floor
New York, New York 10017
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P., a general partner
By: MSPS/DP, Inc., its general partner
By: /s/ Marian E. Cohen
----------------------------------------
Name: Marion E. Cohen
Title: Vice President
Address: Two Bala Plaza
Suite 300
Bala Cynwyd, PA 19004
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By: /s/ Marian E. Cohen
----------------------------------------
Name: Marion E. Cohen
Title: Vice President
Address: Two Bala Plaza
Suite 300
Bala Cynwyd, PA 19004
CMS CO-INVESTMENT
SUBPARTNERSHIP, a Delaware general partnership
By: CMS Co-Investment Partners, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates,
L.P., a Delaware limited partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By: /s/ Marian E. Cohen
----------------------------------------
Name: Marion E. Cohen
Title: Vice President
Address: Two Bala Plaza
Suite 300
Bala Cynwyd, PA 19004
By: CMS 1997 Investment Partners,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware
corporation
By: /s/ Marian E. Cohen
----------------------------------------
Name: Marion E. Cohen
Title: Vice President
Address: Two Bala Plaza
Suite 300
Bala Cynwyd, PA 19004
By: CMS Co-Investment Partners I-Q, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment Associates,
Inc., a Delaware corporation
By: /s/ Marian E. Cohen
----------------------------------------
Name: Marion E. Cohen
Title: Vice President
Address: Two Bala Plaza
Suite 300
Bala Cynwyd, PA 19004
By: CMS 1997 Investment Partners, L.P.
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/ Marian E. Cohen
----------------------------------------
Name: Marion E. Cohen
Title: Vice President
Address: Two Bala Plaza
Suite 300
Bala Cynwyd, PA 19004
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By: /s/ Cyril Meduna
-------------------------------------------
Name: Cyril Meduna
Title:
Address: 206 Tetuan Street
San Juan, Puerto Rico 00902
CKE ASSOCIATES LLC
By: /s/ Michael S. Dreyer
-------------------------------------------
Name: Michael S. Dreyer
Title: Vice President
Address: 9465 Wilshire Boulevard
Suite 519
Beverly Hills, CA 90212
PW HOTEL I, LLC
By: /s/ Dhananjay M. Pai
-------------------------------------------
Name: Dhananjay M. Pai
Title: Vice President
Address: 1285 Avenue of the Americas
New York, NY 10019
THE DARTMOUTH TRUST
By: /s/ Alan M. Leventhal
-------------------------------------------
Name: Alan M. Leventhal
Title: Trustee
Address: One Federal Street
Boston, Massachusetts 02110-2003
By: /s/ Norman B. Leventhal
-------------------------------------------
Name: Norman B. Leventhal
Title: Trustee
Address: One Federal Street
Boston, Massachusetts 02110-2003
THE BONNYBROOK TRUST
By: /s/ Alan M. Leventhal
-------------------------------------------
Name: Alan M. Leventhal
Title: Trustee
Address: One Federal Street
Boston, Massachusetts 02110-2003
By: /s/ J. Robert Casey
-------------------------------------------
Name: J. Robert Casey
Title: Trustee
Address: 400 Atlantic Avenue
Boston, Massachusetts 02110-3333
THE FRANKLIN TRUST
By: /s/ Alan M. Leventhal
-------------------------------------------
Name: Alan M. Leventhal
Title: Trustee
Address: One Federal Street
Boston, Massachusetts 02110-2003
By: /s/ J. Robert Casey
-------------------------------------------
Name: J. Robert Casey
Title: Trustee
Address: 400 Atlantic Avenue
Boston, Massachusetts 02110-3333
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/ Eric Press
-------------------------------------------
Name: Eric Press
Title: Vice President
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
-------------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
Pursuant to the power of attorney executed by
the persons listed on Schedule I hereto in
favor of, and delivered to, the undersigned
/s/ Todd M. Abbrecht
-------------------------------------------
Todd M. Abbrecht
Attorney-in-fact
Schedule I
State Street Bank & Trust Company as Trustee
of the 1997 Thomas H. Lee Nominee Trust
David V. Harkins
The 1995 Harkins Gift Trust
Scott A. Schoen
C. Hunter Boll
Sperling Family Limited Partnership
Anthony J. DiNovi
Thomas M. Hagerty
Warren C. Smith, Jr.
Smith Family Limited Partnership
Seth W. Lawry
Kent R. Weldon
Terrence M. Mullen
Todd M. Abbrecht
Charles A. Brizius
Scott Jaeckel
Soren Oberg
Thomas R. Shepherd
Joseph J. Incandela
Wendy L. Masler
Andrew D. Flaster
Robert Schiff Lee 1988 Irrevocable Trust
Stephen Zachary Lee
Charles W. Robins as Custodian for Jesse Lee
Charles W. Robins
James Westra
Adam A. Abramson
Joanne M. Ramos
WM. Matthew Kelly
Exhibit 5
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
------------------
Dated as of February 18, 1999
- ------------------------------------------------------------------------------
- ------------------------------------------------------------------------------
TABLE OF CONTENTS
Page
Section 1. Definitions...................................................2
Section 2. Registration Under the Securities Act.........................5
(a) Required Registration...................................6
(b) Incidental Registration.................................9
(c) Expenses...............................................11
(d) Effective Registration Statement Suspension............11
(e) Selection of Underwriters..............................12
Section 3. Restrictions on Public Sale by Wyndham.......................12
Section 4. Registration Procedures......................................12
Section 5. Indemnification; Contribution................................19
(a) Indemnification by Wyndham.............................19
(b) Indemnification by Holders.............................20
(c) Conduct of Indemnification Proceedings.................20
(d) Contribution...........................................21
Section 6. Miscellaneous................................................23
(a) Inconsistent Agreements................................23
(b) Amendments and Waivers.................................23
(c) Notices................................................23
(d) Successors and Assigns.................................24
(e) Recapitalizations, Exchanges, etc., Affecting
Registrable Securities.................................25
(f) Counterparts...........................................25
(g) Descriptive Headings, Etc..............................25
(h) Severability...........................................25
(i) Governing Law..........................................26
(j) Specific Performance...................................26
(k) Entire Agreement.......................................26
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 18, 1999, by and among Wyndham International, Inc., a Delaware
corporation ("Wyndham"), the other Persons (as hereinafter defined) listed
on the signature pages hereof (herein referred to collectively, along with
their respective affiliates and successors who from and after the date
hereof acquire or are otherwise the transferee of any Registrable
Securities (as hereinafter defined), as the "Initial Holders" and
individually, as an "Initial Holder") and any other Person that shall from
and after the date hereof acquire or otherwise be the transferee of any
Registrable Securities and who shall be a Permitted Transferee (as
hereinafter defined) of any Initial Holder (herein referred to collectively
as the "Holders" and individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc.
("Patriot" and, together with Wyndham, the "Companies"), Wyndham
International Operating Partnership, L.P. and Patriot American Hospitality
Partnership, L.P. have entered into a Securities Purchase Agreement, dated
as of February 18, 1999 (the "Securities Purchase Agreement"), with the
Initial Holders, which provides, upon the terms and subject to the
conditions thereof, for the purchase by the Initial Holders of shares of
Wyndham's Series B Convertible Preferred Stock, par value $0.01 per share
(the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible, upon
the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class B Common Stock, par
value $0.01 per share (the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of Series B
Preferred Stock to any Person other than an Initial Holder, such shares of
Series B Preferred Stock will automatically convert, upon the terms and
subject to the conditions set forth in the Certificate of Designation
relating thereto, into shares of Series A Convertible Preferred Stock, par
value $0.01 per share (the "Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible, upon
the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class A Common Stock, par
value $0.01 per share (the "Class A Common Stock"), of Wyndham;
WHEREAS, in the event of any transfer of any shares of Class B
Common Stock to any Person other than an Initial Holder, such shares of
Class B Common Stock will automatically convert, upon the terms and subject
to the conditions set forth in the Restated Certificate of Incorporation of
Wyndham; and
WHEREAS, in order to induce the Initial Holders to complete the
transactions contemplated by the Securities Purchase Agreement, Wyndham has
agreed to provide registration rights on the terms and subject to the
conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Definitions.
(m) As used in this Agreement, the following terms shall have
the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section
2(a)(i).
"Class A Common Stock" shall have the meaning set forth in the
preamble; provided, that if there shall be only one authorized class of
Wyndham's common stock at the time, Class A Common Stock shall be deemed to
refer to such common stock.
"Class B Common Stock" shall have the meaning set forth in the
preamble.
"Closing" shall mean the date upon which the purchase and sale
of the Preferred Stock pursuant to the Securities Purchase Agreement
occurs.
"Companies" shall have the meaning set forth in the preamble
and shall also include Patriot's and Wyndham's successors.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required to
be effected by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
statement of Wyndham, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the
Securities Act and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Initial Holder(s)" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean Holders of the Registrable
Securities as to which registration has been requested representing in the
aggregate a majority of such shares
beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A
Preferred Stock or the Class A Common Stock, the average, rounded to the
nearest cent ($0.01), of the closing price per share of the Series A
Preferred Stock or the Class A Common Stock, respectively, on the New York
Stock Exchange for twenty consecutive calendar days ending on the trading
day immediately preceding the date in question.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities
Act.
"Person" shall mean any individual, limited or general
partnership, corporation, trust, joint venture, association, joint stock
company or unincorporated organization.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities and by all other amendments and supplements to such Prospectus,
including post-effective amendments, and in each case including all
material incorporated by reference therein.
"Registrable Securities" shall mean (i) any shares of Class B
Common Stock issued or issuable upon conversion of any shares of Series B
Preferred Stock, (ii) any shares of Series A Preferred Stock issued or
issuable upon conversion of the shares of Series B Preferred Stock, (iii)
any shares of Class A Common Stock issued or issuable upon conversion of
any shares of Series A Preferred Stock described in clause (ii) above, and
(iv) any securities issued or issuable with respect to any Series A
Preferred Stock, Series B Preferred Stock, Class A Common Stock or Class B
Common Stock described in clauses (i), (ii) and (iii) above by way of stock
dividend or stock split or in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise.
"Registration Expenses" shall mean (i) all registration,
listing, qualification and filing fees (including NASD filing fees), (ii)
fees and disbursements of counsel for Wyndham, (iii) accounting fees
incident to any such registration, (iv) blue sky fees and expenses
(including counsel fees in connection with the preparation of a Blue Sky
Memorandum and legal investment survey), (v) all expenses of any Persons in
preparing or assisting in preparing, printing, distributing, mailing and
delivering any Registration Statement, any Prospectus, any underwriting
agreements, transmittal letters, securities sales agreements, securities
certificates and other documents relating to the performance of and
compliance with this Agreement, (vi) the expenses incurred in connection
with making road show presentations and holding meetings with potential
investors to facilitate the distribution and sale of Registrable Securities
which are customarily borne by the issuer, and (v) all internal expenses of
Wyndham (including all salaries and expenses of officers and employees
performing legal or accounting duties), provided, however, that
Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement
of Wyndham which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
"Required Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(i).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Securities Purchase Agreement" shall have the meaning set
forth in the preamble.
"Selling Expenses" shall mean underwriting discounts, selling
commissions and stock transfer taxes applicable to the shares registered by
the Holders, fees and disbursements of counsel for the Holders retained by
them (other than with respect to the fees and disbursements made in
connection with the preparation of a Blue Sky Memorandum and legal
investment survey).
"Series A Preferred Stock" shall have the meaning set forth in
the preamble.
"Series B Preferred Stock" shall have the meaning set forth in
the preamble.
"Shelf Registration" shall mean a registration required to be
effected pursuant to Section 2(a)(ii).
"Shelf Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(ii).
"Underwriter" shall have the meaning set forth in Section 5(a).
"Underwritten Offering" shall mean a sale of securities of
Wyndham to an Underwriter or Underwriters for reoffering to the public.
(n) Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Securities Purchase
Agreement.
Section 2. Registration Under the Securities Act.
(a) Required Registration.
(i) Right to Require Registration. One or more Holders of
Registrable Securities shall have the right from time to time to request in
writing (a "Request") which Request shall specify the Registrable
Securities intended to be disposed of by such Holders and the intended
method of distribution thereof) that Wyndham register such Holders'
Registrable Securities by filing with the SEC a Required Registration
Statement. Upon the receipt of such a Request, Wyndham will, by the fifth
business day thereafter, give written notice of such requested registration
to all Initial Holders of Registrable Securities, and, not later than the
45th calendar day after the receipt of such a Request by Wyndham, Wyndham
will use all reasonable efforts to cause to be filed with the SEC a
Required Registration Statement covering the Registrable Securities which
Wyndham has been so requested to register by Holders thereof other than the
Initial Holder(s) initiating the Request by written request given to
Wyndham within 9 business days after the giving of such written notice by
Wyndham, providing for the registration under the Securities Act of the
Registrable Securities which Wyndham has been so requested to register by
all such Holders, to the extent necessary to permit the disposition of such
Registrable Securities so to be registered in accordance with the intended
methods of distribution thereof specified in such Request or further
requests, and shall use all reasonable efforts to have such Required
Registration Statement declared effective by the SEC as soon as practicable
thereafter and to keep such Required Registration Statement continuously
effective for a period of at least 60 calendar days (or, in the case of an
Underwritten Offering, such period as the Underwriters shall reasonably
require) following the date on which such Required Registration Statement
is declared effective (or such shorter period which will terminate when all
of the Registrable Securities covered by such Required Registration
Statement have been sold pursuant thereto), including, if necessary, by
filing with the SEC a post-effective amendment or a supplement to the
Required Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document
or otherwise supplementing or amending the Required Registration Statement,
if required by the rules, regulations or instructions applicable to the
registration form used by Wyndham for such Required Registration Statement
or by the Securities Act, the Exchange Act, any state securities or blue
sky laws, or any rules and regulations thereunder.
Wyndham shall not be required to effect, pursuant to this
Section 2(a)(i), (i) a Required Registration hereunder unless Holders
beneficially owning Registrable Securities with an aggregate Market Value
of $50 million have initiated or joined in such Request and (ii) more than
eight registrations in the aggregate requested by the Holders, provided
that so long as the Holders collectively beneficially own Registrable
Securities with a Market Value of at least $100 million, the Holders shall
have the right to require Wyndham to effect additional Required
Registrations provided that the Registrable Securities included therein
have an aggregate Market Value of at least $50 million and provided further
that any Investor proposing to distribute its Registrable Securities to its
partners or shareholders shall have the right to require Wyndham to effect
an additional Required Registrations to facilitate such distribution.
A Request may be withdrawn prior to the filing of the Required
Registration Statement by the Holder(s) which made such Request (a
"Withdrawn Request") and a Required Registration Statement may be withdrawn
prior to the effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required
Registration"), and, in either such event, such withdrawal shall be treated
as a Required Registration which shall have been effected pursuant to
clause (ii) of the immediately preceding paragraph, except that the Holders
may require Wyndham to disregard one Withdrawn Request for purposes of such
clause (ii).
The Holders shall not, without Wyndham's consent, be entitled
to deliver a Request for a Required Registration after the completion of
the Required Registration if less than 90 calendar days have elapsed since
(A) the effective date of a prior Required Registration Statement, (B) in
the case of a Required Registration which is effected other than by means
of an Underwritten Offering, the date of sale by the Holders of their
Registrable Securities pursuant thereto or (C) the date of withdrawal of a
Withdrawn Required Registration.
Notwithstanding the foregoing, from and after the Closing,
Wyndham may delay the filing of a Required Registration Statement if the
Board of Directors of Wyndham determines that such action is in the best
interests of Wyndham's stockholders, and only for an aggregate number of
days, taken together with any Blackout Period invoked pursuant to Section
2(a)(ii), not to exceed 60 days in any twelve month period (a "Blackout
Period").
The registration rights granted pursuant to the provisions of
this Section 2(a)(i) shall be in addition to the registration rights
granted pursuant to the other provisions of this Section 2.
(ii) Shelf Registration. Promptly upon the Request of the
Holders (but in no event later than the 75th calendar day after the receipt
of such a Request), the Company shall use its reasonable best efforts to
promptly process, file and cause to become effective a Registration
Statement on Form S-3 (the "Shelf") for an offering of Registrable
Securities to be made on a delayed or continuous basis pursuant to Rule 415
under the Securities Act (or any similar rule that may be adopted by the
SEC) and permitting sales in ordinary course brokerage or dealer
transactions not involving an Underwritten Offering. Each Holder which
owns, on the date of the initial filing of the Shelf (the "Initial Filing
Date"), Registrable Securities (each such Holder, an "Eligible Holder")
shall have the right to resell such Registrable Securities under the Shelf
until the date that such Eligible Holder sells all of such Registrable
Securities, whether or not under the Shelf (such Eligible Holder's
"Termination Date"). The Company agrees to use its reasonable best efforts
to keep the Shelf continuously effective and usable for resale of
Registrable Securities until all Eligible Holders lose their rights to
resell Registrable Securities under the Shelf .
Notwithstanding the foregoing, (A) from the Closing and until
the effectiveness of a Shelf Registration Statement, Wyndham may delay the
filing of a Shelf Registration Statement, or (B) from and after the
effectiveness of a Shelf Registration Statement, each Holder agrees that it
will not effect any sales of the Registrable Securities
pursuant to the Shelf Registration, in either case, if the Board of
Directors of Wyndham determines that such action is in the best interests
of Wyndham's stockholders, and only for a Blackout Period, taken together
with any Blackout Period invoked pursuant to Section 2(a)(i), not to exceed
60 days.
The registration rights granted pursuant to the provisions of
this Section 2(a)(ii) shall be in addition to the registration rights
granted pursuant to the other provisions
of this Section 2.
(iii) Priority in Required and Shelf Registrations. If a
Required or Shelf Registration pursuant to this Section 2(a) involves an
Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise
Wyndham in writing (with a copy to each Holder requesting registration) on
or before the date 5 days prior to the date then scheduled for such
offering that, in its opinion, the amount of Registrable Securities
requested to be included in such Required or Shelf Registration exceeds the
amount which can be sold in such offering without adversely affecting the
distribution of the Registrable Securities being offered, Wyndham will
include in such Required or Shelf Registration only the amount of
Registrable Securities that Wyndham is so advised can be sold in such
offering; provided, however, that Wyndham shall be required to include in
such Required or Shelf Registration: first, all Registrable Securities
requested to be included in the Required or Shelf Registration by the
Holders and, to the extent not all such Registrable Securities can be
included in such Required Registration, the number of Registrable
Securities to be included shall be allocated pro rata on the basis of the
number of shares of Preferred Stock or Common Stock (whichever is
applicable) beneficially owned at that time by all the Holders requesting
to participate in the Required or Shelf Registration or on such other basis
as shall be agreed among the Holders, by agreement of the Majority Holders;
and second, if all Registrable Securities requested to be included in the
Required or Shelf Registration by the Holders can be so included, all other
securities requesting, in accordance with any registration rights which are
granted in compliance with Section 6(a), to be included in such Required
Registration which are of the same class as the Registrable Securities and,
to the extent not all such securities can be included in such Required or
Shelf Registration, the number of securities to be included shall be
allocated pro rata among the holders thereof requesting inclusion in such
Required or Shelf Registration on the basis of the number of securities
requested to be included by all such holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time
Wyndham proposes to register any of their Preferred Stock or Common Stock
under the Securities Act (other than (A) any registration of public sales
or distributions solely by and for the account of Wyndham of securities
issued (x) pursuant to any employee benefit or similar plan or any dividend
reinvestment plan or (y) in any acquisition by Wyndham, or (B) pursuant to
Section 2(a) hereof), either in connection with a primary offering for cash
for the account of Wyndham or a secondary offering, Wyndham will, each time
it intends to effect such a registration, give written notice to all
Initial Holders of Registrable Securities at least 10 business days prior
to the initial filing of a Registration Statement with the SEC pertaining
thereto, informing such Initial Holders of its intent to file such
Registration Statement and of the Holders' rights to request the
registration of the Registrable Securities held by the Holders under this
Section 2(b) (the "Company Notice"). Upon the written request of any
Initial Holder made within 7 business days after any such Company Notice is
given (which request shall specify the Registrable Securities intended to
be disposed of by such Initial Holder and such Initial Holder's Permitted
Transferees and, unless the applicable registration is intended to effect a
primary offering of Preferred Stock or Common Stock for cash for the
account of Wyndham, the intended method of distribution thereof), Wyndham
will use all reasonable efforts to effect the registration under the
Securities Act of all Registrable Securities which Wyndham has been so
requested to register by such Initial Holders to the extent required to
permit the disposition (in accordance with the intended methods of
distribution thereof or, in the case of a registration which is intended to
effect a primary offering for cash for the account of Wyndham, in
accordance with Wyndham's intended method of distribution) of the
Registrable Securities so requested to be registered, including, if
necessary, by filing with the SEC a post-effective amendment or a
supplement to the Incidental Registration Statement or the related
Prospectus or any document incorporated therein by reference or by filing
any other required document or otherwise supplementing or amending the
Incidental Registration Statement, if required by the rules, regulations or
instructions applicable to the registration form used by Wyndham for such
Incidental Registration Statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder;
provided, however, that if, at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
Incidental Registration Statement filed in connection with such
registration, Wyndham shall determine for any reason not to register or to
delay registration of such securities, Wyndham may, at its election, give
written notice of such determination to each Initial Holder of Registrable
Securities and, thereupon, (A) in the case of a determination not to
register, Wyndham shall be relieved of their obligation to register any
Registrable Securities in connection with such registration (but not from
their obligation to pay the Registration Expenses incurred in connection
therewith), and (B) in the case of a determination to delay such
registration, Wyndham shall be permitted to delay registration of any
Registrable Securities requested to be included in such Incidental
Registration Statement for the same period as the delay in registering such
other securities.
The registration rights granted pursuant to the provisions of
this Section 2(b) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account of
Wyndham, and the sole Underwriter or the lead managing Underwriter, as the
case may be, of such Underwritten Offering shall advise Wyndham in writing
(with a copy to each Initial Holder of Registrable Securities requesting
registration) on or before the date 5 days prior to the date then scheduled
for such offering that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such registration
exceeds the amount which can be sold in (or during the time of) such
offering without adversely affecting the distribution of the securities
being offered, then Wyndham will include in such registration: first, all
the securities entitled to be sold pursuant to such Registration Statement
without reference to the incidental registration rights of any holder
(including the Holders), and second, the amount of other securities
(including Registrable Securities) requested to be included in such
registration that Wyndham is so advised can be sold in (or during the time
of) such offering, allocated, if necessary, pro rata among the holders
(including the Holders) thereof requesting such registration on the basis
of the number of the securities (including Registrable Securities)
beneficially owned at the time by the holders (including the Holders)
requesting inclusion of their securities; provided, however, that in the
event Wyndham will not, by virtue of this paragraph, include in any such
registration all of the Registrable Securities of any Holder requested to
be included in such registration, such Holder may, upon written notice to
Wyndham given within 3 days of the time such Holder first is notified of
such matter, reduce the amount of Registrable Securities it desires to have
included in such registration, whereupon only the Registrable Securities,
if any, it desires to have included will be so included and the Holders not
so reducing shall be entitled to a corresponding increase in the amount of
Registrable Securities to be included in such registration.
(c) Expenses. Wyndham agrees to pay all Registration Expenses
in connection with (i) each of the registrations requested pursuant to
Section 2(a) and (ii) each registration as to which Holders request
inclusion of Registrable Securities pursuant to Section 2(b). All Selling
Expenses relating to securities registered on behalf of the Holders shall
be borne by the Holders of shares included in such registration, other
selling stockholders and Wyndham pro rata on the basis of the number of
shares of Preferred Stock or Common Stock so registered.
(d) Effective Registration Statement; Suspension. Subject to
the third paragraph of Section 2(a)(i), a Registration Statement pursuant
to Section 2(a) will not be deemed to have become effective (and the
related registration will not be deemed to have been effected) unless it
has been declared effective by the SEC prior to a request by the Holders of
a majority of the Registrable Securities included in such registration that
such Registration Statement be withdrawn; provided, however, that if, after
it has been declared effective, the offering of any Registrable Securities
pursuant to such Registration Statement is interfered with by any stop
order, injunction or other order or requirement of the SEC or any other
governmental agency or court shall have been in effect for at least 30
days, such Registration Statement will be deemed not to have become
effective and the related registration will not be deemed to have been
effected.
(e) Selection of Underwriters. At any time or from time to
time, the Holders of a majority of the Registrable Securities covered by a
Required Registration Statement may elect to have such Registrable
Securities sold in an Underwritten Offering and may select the investment
banker or investment bankers and manager or managers that will serve as
lead and co-managing Underwriters with respect to the offering of such
Registrable Securities, subject to the consent of Wyndham which shall not
be unreasonably withheld. No Holder may participate in any Underwritten
Offering hereunder unless such Holder (a) agrees to sell such Holder's
securities on the basis provided in any underwriting arrangements approved
by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, custody
agreements, indemnities, underwriting agreements and other documents
required under the terms of such Underwritten Offering.
Section 3. Restrictions on Public Sale by Wyndham.
If requested by the sole Underwriter or lead managing
Underwriter(s) in such Underwritten Offering, Wyndham agrees not to effect
any public sale or distribution (other than public sales or distributions
solely by and for the account of Wyndham of securities issued pursuant to
any employee benefit or similar plan or any dividend reinvestment plan) of
any securities during the period commencing on the date Wyndham receives a
Request from any Initial Holder and continuing until (a) for a Registration
Statement relating to such Underwritten Offering other than a Shelf
Registration, 90 days after such Registration Statement is declared
effective by the SEC and (b) for a Shelf Registration Statement relating to
such Underwritten Offering, 90 days after the commencement of such
Underwritten Offering, (or for such shorter period as the sole or lead
managing Underwriter shall request) unless earlier terminated by the sole
Underwriter or lead managing Underwriter(s) in such Underwritten Offering.
Section 4. Registration Procedures.
In connection with the obligations of Wyndham pursuant to
Section 2, Wyndham shall use all reasonable efforts to effect or cause to
be effected the registration of the Registrable Securities under the
Securities Act to permit the sale of such Registrable Securities by the
Holders in accordance with their intended method or methods of
distribution, and Wyndham shall:
(a) (i) prepare and file a Registration Statement with the SEC
which (x) shall be on Form S-3 (or any successor to such form), if
available, (y) shall be available for the sale or exchange of the
Registrable Securities in accordance with the intended method or methods of
distribution by the selling Holders thereof and (z) shall comply as to form
with the requirements of the applicable form and include all financial
statements required by the SEC to be filed therewith and all other
information reasonably requested by the lead managing Underwriter or sole
Underwriter, if applicable, to be included therein, (ii) use all reasonable
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2, (iii) use all reasonable efforts to
not take any action that would cause a Registration Statement to contain a
material misstatement or omission or to be not effective and usable for
resale of Registrable Securities during the period that such Registration
Statement is required to be effective and usable and (iv) cause each
Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration
Statement, amendment or supplement (x) to comply in all material respects
with any requirements of the Securities Act and the rules and regulations
of the SEC and (y) not to contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and
file with the SEC such amendments and post-effective amendments to each
such Registration Statement, as may be necessary to keep such Registration
Statement effective for the applicable period; cause each such Prospectus
to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Securities Act; and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by each Registration Statement during
the applicable period in accordance with the intended method or methods of
distribution by the selling Holders thereof, as set forth in such
registration statement;
(o) furnish to each Holder of Registrable Securities and to
each Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such
other documents as such Holder or Underwriter may reasonably request in
order to facilitate the public sale or other disposition of any Registrable
Securities; Wyndham hereby consents to the use of the Prospectus, including
each preliminary Prospectus, by each Holder of Registrable Securities and
each Underwriter of an Underwritten Offering of Registrable Securities, if
any, in connection with the offering and sale of the Registrable Securities
covered by the Prospectus or the preliminary Prospectus (the Holders hereby
agreeing not to make a broad public dissemination of a form of preliminary
Prospectus which is designed to be a "quiet filing" without Wyndham's
consent, such consent to not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if
any, or any Holder of Registrable Securities covered by a Registration
Statement, shall reasonably request; (ii) use all reasonable efforts to
keep each such registration or qualification effective during the period
such Registration Statement is required to be kept effective; and (iii) do
any and all other acts and things which may be reasonably necessary or
advisable to enable each such Underwriter, if any, and Holder to consummate
the disposition in each such jurisdiction of such Registrable Securities
owned by such Holder; provided, however, that Wyndham shall not be
obligated to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to consent to be
subject to general service of process (other than service of process in
connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and,
if requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance
by the SEC or any state securities authority of any stop order, injunction
or other order or requirement suspending the effectiveness of a
Registration Statement or the initiation of any proceedings for that
purpose, (iii) if, between the effective date of a Registration Statement
and the closing of any sale of securities covered thereby pursuant to any
agreement to which Wyndham is a party, the representations and warranties
of Wyndham contained in such agreement cease to be true and correct in all
material respects or if Wyndham receives any notification with respect to
the suspension of the qualification of the Registrable Securities for sale
in any jurisdiction or the initiation of any proceeding for such purpose
and (iv) of the happening of any event during the period a Registration
Statement is effective as a result of which such Registration Statement or
the related Prospectus contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for
the Holders of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a
Registration Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the
earliest possible time;
(h) upon request, furnish to the sole Underwriter or lead
managing Underwriter of an Underwritten Offering of Registrable Securities,
if any, without charge, at least one signed copy of each Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, all documents incorporated therein by reference
and all exhibits; and furnish to each Holder of Registrable Securities,
without charge, at least one conformed copy of each Registration Statement
and any post-effective amendment thereto (without documents incorporated
therein by reference or exhibits thereto, unless requested);
(i) cooperate with the selling Holders of Registrable
Securities and the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable
such Registrable Securities to be in such denominations (consistent with
the provisions of the governing documents thereof) and registered in such
names as the selling Holders or the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
may reasonably request at least three business days prior to any sale of
Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use all reasonable efforts to prepare a supplement
or post-effective amendment to a Registration Statement or the related
Prospectus, or any document incorporated therein by reference, or file any
other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
(k) enter into customary agreements (including, in the case of
an Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to
indemnification and contribution contained herein) and take all other
customary and appropriate actions in order to expedite or facilitate the
disposition of such Registrable Securities and in connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the lead managing Underwriter, if any, and
the Majority Holders of the Registrable Securities being sold)
addressed to each selling Holder and the Underwriters, if any,
covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from
Wyndham's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary underwritten
offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders
and such representative of the selling Holders as the Majority
Holders of the Registrable Securities covered by any Registration
Statement relating to the Registration and providing for, among other
things, the appointment of such representative as agent for the
selling Holders for the purpose of soliciting purchases of
Registrable Securities, which agreement shall be customary in form,
substance and scope and shall contain customary representations,
warranties and covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable
Securities being
sold or by the managing Underwriters, if any.
The above shall be done (i) at be effectiveness of such Registration
Statement (and each post-effective amendment thereto) in connection with
any registration, and (ii) at each closing under any underwriting or
similar agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the
Initial Holders of the Registrable Securities and any Underwriters
participating in any disposition pursuant to a Registration Statement and
any counsel or accountant retained by such Holders or Underwriters, all
relevant financial and other records, pertinent corporate documents and
properties of Wyndham and cause the respective officers, directors and
employees of Wyndham to supply all information reasonably requested by any
such representative, Underwriter, counsel or accountant in connection with
a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of
such document to the Initial Holders of Registrable Securities and to
counsel to such Initial Holders and to the Underwriter or Underwriters of
an Underwritten Offering of Registrable Securities, if any; fairly consider
such reasonable changes in any such document prior to or after the filing
thereof as the counsel to the Holders or the Underwriter or the
Underwriters may request and not file any such document in a form to which
the Majority Holders of Registrable Securities being registered or any
Underwriter shall reasonably object; and make such of the representatives
of Wyndham as shall be reasonably requested by the Holders of Registrable
Securities being registered or any Underwriter available for discussion of
such document;
(ii) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus, provide copies of such document to counsel for
the Holders; fairly consider such reasonable changes in such document prior
to or after the filing thereof as counsel for such Holders or such
Underwriter shall request; and make such of the representatives of Wyndham
as shall be reasonably requested by such counsel available for discussion
of such document;
(n) cause all Registrable Securities to be qualified for
inclusion in or listed on the New York Stock Exchange or any securities
exchange on which securities of the same class issued by Wyndham is then so
qualified or listed if so requested by the Majority Holders of Registrable
Securities covered by a Registration Statement, or if so requested by the
Underwriter or Underwriters of an Underwritten Offering of Registrable
Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to
its security holders an earnings statement covering at least 12 months
which shall satisfy the provisions of Section 11 (a) of the Securities Act
and Rule 158 thereunder;
(p) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by
any Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution
and sale of any Registrable Securities to be offered pursuant to this
Agreement, including without limitation by making road show presentations,
holding meetings with potential investors and taking such other actions as
shall be requested by the Majority Holders of Registrable Securities
covered by a Registration Statement or the lead managing Underwriter of an
Underwritten Offering, in each case subject to the reasonable availability
of Wyndham's executives given their other duties.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a
condition to the registration obligations with respect to such Holder
provided herein, to furnish to Wyndham such information regarding such
Holder required to be included in the Registration Statement, the ownership
of Registrable Securities by such Holder and the proposed distribution by
such Holder of such Registrable Securities as Wyndham may from time to time
reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from
Wyndham of the happening of any event of the find described in paragraph
(e)(iv) of this Section, such Holder will forthwith discontinue disposition
of Registrable Securities pursuant to the affected Registration Statement
until such Holder's receipt of the copies of the supplemented or amended
Prospectus, contemplated by paragraph (j) of this Section, and, if so
directed by Wyndham, such Holder will deliver to Wyndham (at the expense of
Wyndham), all copies in its possession, other than permanent file copies
then in such Holder's possession, of the Prospectus covering such
Registrable Securities which was current at the time of receipt of such
notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by Wyndham. Wyndham agrees, jointly and
severally, to indemnify and hold harmless each Person who participates as
an underwriter (any such Person being an "Underwriter"), each Holder and
their respective partners, directors, officers and employees and each
Person, if any, who controls any Holder or Underwriter within the meaning
of Section 15 of the Securities Act or Section 20 of the Exchange Act as
follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus, including all documents
incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any other claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel), incurred in
investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not such Person is a
party, or any claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that this indemnity agreement does not apply to any
Holder or Underwriter with respect to any loss, liability, claim, damage,
judgment or expense to the extent arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus, or
the omission or alleged omission therefrom of a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, in any such case made in reliance upon and
in conformity with written information furnished to Wyndham by such Holder
or Underwriter expressly for use in a Registration Statement (or any
amendment thereto) or any Prospectus (or any amendment or supplement
thereto).
(b) Indemnification by Holders. (i) Each selling Holder
severally agrees to indemnify and hold harmless Wyndham, each Underwriter
and the other selling Holders, and each of their respective partners,
directors, officers and employees (including each officer of Wyndham who
signed the Registration Statement), and each Person, if any, who controls
Wyndham, any Underwriter or any other selling Holder within the meaning of
Section 15 of the Securities Act, against any and all losses, liabilities,
claims, damages, judgments and expenses described in the indemnity
contained in paragraph (a) of this Section (provided that any settlement of
the type described therein is effected with the written consent of such
selling Holder), as incurred, but only with respect to untrue statements or
alleged untrue statements of a material fact contained in any Prospectus or
the omissions, or alleged omissions therefrom of a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, in any such case made in reliance
upon and in conformity with written information furnished to Wyndham by
such selling Holder expressly for use in such Registration Statement (or
any amendment thereto) or such Prospectus (or any amendment or supplement
thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified
party or parties shall give reasonably prompt notice to each indemnifying
party or parties of any action or proceeding commenced against it in
respect of which indemnity may be sought hereunder, but failure so to
notify an indemnifying party or parties shall not relieve it or them from
any liability which it or they may have under this indemnity agreement,
except to the extent that the indemnifying party is materially prejudiced
by such failure to give notice. If the indemnifying party or parties so
elects within a reasonable time after receipt of such notice, the
indemnifying party or parties may assume the defense of such action or
proceeding at such indemnifying party's or parties' expense with counsel
chosen by the indemnifying party or parties and approved by the indemnified
party defendant in such action or proceeding, which approval shall not be
unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and
that therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may
be legal defenses available to it or them which are different from or in
addition to those available to the indemnifying party, then the
indemnifying party or parties shall not be entitled to assume such defense
and the indemnified party or parties shall be entitled to separate counsel
(limited in each jurisdiction to one counsel for all Underwriters and
another counsel for all other indemnified parties under this Agreement) at
the indemnifying party's or parties' expense. If an indemnifying party or
parties is not so entitled to assume the defense of such action or does not
assume such defense, after having received the notice referred to in the
first sentence of this paragraph, the indemnifying party or parties will
pay the reasonable fees and expenses of counsel for the indemnified party
or parties (limited in each jurisdiction to one counsel for all
Underwriters and another counsel for all other indemnified parties under
this Agreement). No indemnifying party or parties will be liable for any
settlement effected without the written consent of such indemnifying party
or parties, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying
party or parties shall not, except as otherwise provided in this subsection
(c), be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section is for any reason held to be unenforceable by
the indemnified parties although applicable in accordance with its terms in
respect of any losses, liabilities, claims, damages, judgments and expenses
suffered by an indemnified party referred to therein, each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, liabilities, claims, damages, judgments and expenses
in such proportion as is appropriate to reflect the relative fault of
Wyndham on the one hand and of the liable selling Holders (including, in
each case, that of their respective officers, directors, employees and
agents) on the other in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages, judgments or
expenses, as well as any other relevant equitable considerations. The
relative fault of Wyndham on the one hand and of the liable selling Holders
(including, in each case, that of their respective officers, directors,
employees and agents) on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by Wyndham, on the one hand, or by or on
behalf of the selling Holders, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party
as a result of the losses, liabilities, claims, damages, judgments and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in paragraph (c) of this Section, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(ii) Wyndham and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in sub-paragraph (i) above. Notwithstanding the provisions of
this paragraph (d), in the case of distributions to the public, an
indemnifying Holder shall not be required to contribute any amount in
excess of the amount by which (A) the total price at which the Registrable
Securities sold by such indemnifying Holder and its affiliated indemnifying
Holders and distributed to the public were offered to the public exceeds
(B) the amount of any damages which such indemnifying Holder has otherwise
been required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities
Act) shall be entitled to contribution from any Person who was not guilty
of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder or an Underwriter within the meaning of Section 15 of the
Securities Act (and their respective partners, directors, officers and
employees) shall have the same rights to contribution as such Holder or
Underwriter; and each director of Wyndham, each officer of Wyndham who
signed the Registration Statement, and each Person, if any, who controls
Wyndham within the meaning of Section 15 of the Securities Act, shall have
the same rights to contribution as Wyndham.
Section 6. Miscellaneous.
(a) Inconsistent Agreements. Wyndham is not a party to, and
will not on or after the date of this Agreement enter into, any agreement
which conflicts with the provisions of this Agreement nor has Wyndham
entered into any such agreement, and Wyndham will not on or after the date
of this Agreement modify in any manner adverse to the Holders any such
agreement; provided, however, that nothing in this sentence shall prohibit
Wyndham from granting registration rights, which become exercisable from
and after the Closing, to any Person (a "Third Party") who becomes an owner
of shares of any of Wyndham's capital stock after the date hereof
(including granting incidental registration rights with respect to any
Registration Statement required to be filed or maintained hereunder) if and
only if (i) the Third-Party's registration rights (including, without
limitation, demand registration rights) provide to the Holders of
Registrable Securities who seek to participate in such registration
(whether or not such registration is initiated hereunder) rights no less
favorable to such Holders than those rights provided to the Holders
hereunder as if such registration were a Required Registration (including,
without limitation, the priority provisions contained in Section
2(a)(iii)), provided, further, however, that if such registration is not
initiated by the Initial Holders such registration shall not be deemed one
of the eight Required Registrations for purposes of the limitations
contained in the second paragraph of Section 2(a)(i), and (ii) the Third
Party is required to enter into the agreements provided for in Section 3
hereof (as if it were Wyndham) on the terms and for the period applicable
to Wyndham (including preventing sales pursuant to Rule 144 under the
Securities Act) if requested by the sole Underwriter or lead managing
Underwriter in an Underwritten Offering initiated by Holders of Registrable
Securities pursuant to Section 2(a). The rights granted to the Holders
hereunder do not in any way conflict with and are not inconsistent with the
rights granted to the holders of Wyndham's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless Wyndham has obtained the written consent of
a majority of the Holders and, if any such amendment, modification,
supplement, waiver or consent would adversely affect the rights of any
Holder hereunder, the written consent of each Holder which is affected
shall be obtained; provided, however, that nothing herein shall prohibit
any amendment, modification, supplement, waiver or consent the effect of
which is limited only to those Holders who have agreed to such amendment,
modification, supplement, waiver or consent.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a
Holder, at the most current address given by such Holder to Wyndham by
means of a notice given in accordance with the provisions of this paragraph
(c), which address initially is, with respect to each Holder as of the date
hereof, the address set forth next to such Holder's name on the signature
pages hereof with a copy to Randall H. Doud, Esq., telecopier number (212)
735-2000, and with respect to each Holder who becomes such after the date
hereof, the address of such Holder in the stock records of Wyndham, (ii) if
to Wyndham, at 1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207,
telecopier number (214) 863-1527, Attention: General Counsel, with a copy
to Gilbert G. Menna, P.C., telecopier number (617) 523-1231, and thereafter
at such other address, notice of which is given in accordance with the
provisions of this paragraph. Notwithstanding the foregoing, Wyndham shall
not be obligated to provide any notice to any Holder which is not an
Initial Holder except with respect to a Required or Incidental Registration
Statement which has been filed and pursuant to which such Holder is
identified as a selling stockholder.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered;
when answered back, if telexed; when receipt is acknowledged, if
telecopied; and on the next business day if timely delivered to a courier
guaranteeing overnight delivery. Notwithstanding the foregoing, nothing in
this Section 6(c) is intended to enlarge the class of Persons which are
Holders, as defined in the preamble of this Agreement, and thus entitled to
the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to all
of the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement
and to receive the benefits hereof. Notwithstanding the foregoing, nothing
in this Section 6(d) is intended to enlarge the class of Persons which are
Holders, as defined in the preamble of this Agreement, and thus entitled to
the rights granted hereunder. For purposes of this Agreement, "successor"
for any entity other than a natural person shall mean a successor to such
entity as a result of such entity's merger, consolidation, liquidation,
dissolution, sale of substantially all of its assets, or similar
transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full
extent set forth herein with respect to the Registrable Securities, to any
and all securities or capital stock of Wyndham or any successor or assign
of Wyndham (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution of
such Registrable Securities, by reason of any dividend, split, issuance,
reverse split, combination, recapitalization, reclassification, merger,
consolidation or otherwise. Upon the occurrence of any of such events,
Preferred Stock and Common Stock amounts hereunder shall be appropriately
adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be
deemed to be an original, but all of which counterparts, taken together,
shall constitute one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise
affect the meaning of terms contained herein. Unless the context of this
Agreement otherwise requires: (1) words of any gender shall be deemed to
include each other gender; (2) words using the singular or plural number
shall also include the plural or singular number, respectively; (3) the
words "hereof", "herein" and "hereunder" and words of similar import when
used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement, and Article, Section, paragraph
and clause references are to the Articles, Sections, paragraphs and clauses
to this Agreement unless otherwise specified; (4) the word "including" and
words of similar import when used in this Agreement shall mean "including,
without limitation," unless otherwise specified; (5) "or" is not exclusive;
and (6) provisions apply to successive events and transactions.
(h) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision, paragraph, word, clause,
phrase or sentence in every other respect and of the other remaining
provisions, paragraphs, words, clauses, phrases or sentences hereof shall
not be in any way impaired, it being intended that all rights, powers and
privileges of the parties hereto shall be enforceable to the fullest extent
permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT
GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform in
any material respect any of its obligations hereunder, and accordingly
agree that each party, in addition to any other remedy to which it may be
entitled at law or in equity, shall be entitled to compel specific
performance of the obligations of any other party under this Agreement in
accordance with the terms and conditions of this Agreement in any court of
the United States or any State thereof having jurisdiction.
(k) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between Wyndham, on the
one hand, and the other parties to this Agreement, on the other, with
respect to such subject matter.
* * *
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
---------------------------------------
Name: James D. Carreker
Title: Chairman and Chief Executive
Officer
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
Address:
1301 Avenue of the Americas
38th Floor
New York, New York 10019 By: Ricardo Koenigsberger
Attention: ------------------------------
Telecopier Number: Name: Ricardo Koenigsberger
(212) 261-4060 Title: Vice President
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its
General Partner
By: Apollo Capital Management IV,
Inc., its General Partner
Address:
1301 Avenue of the Americas
38th Floor
New York, New York 10019 By: /s/ Eric Press
Attention: ---------------------------------------
Telecopier Number: Name: Eric Press
(212) 261-4060 Title: Vice President
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: --------------------------------------
(617) 227-3514 Name: Scott Sperling
Title: Managing Director
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: --------------------------------------
(617) 227-3514 Name: Scott Sperling
Title: Managing Director
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: --------------------------------------
(617) 227-3514 Name: Scott Sperling
Title: Managing Director
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: --------------------------------------
(617) 227-3514 Name: Scott Sperling
Title: Managing Director
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc.,
1 Federal Street, 26th Floor its General Partner
Boston, MA 02110
Attention: By: John C. Halsted
Telecopier Number: --------------------------------------
(617) 457-0499 Name: John C. Halsted
Title: Senior Vice President
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
Address:
1995 University Avenue
Suite 550
Berkeley, CA 94704 By: /s/ Kenneth T. Rosen
Attention: ----------------------------------------
Telecopier Number: Name: Kenneth T. Rosen
(510) 849-1209 Title: Manager
Exhibit 6
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as
of this 30th day of June, 1999, by and among (i) Beacon Capital Partners,
L.P. (the "Assignor"), (ii) BCP Voting, Inc., as trustee for Beacon Capital
Partners, L.P. (the "Assignee"), and (iii) Patriot American Hospitality,
Inc., Wyndham International, Inc., Patriot American Hospitality
Partnership, L.P. and Wyndham International Operating Partnership, L.P.
(collectively, the "Companies"). Capitalized terms used and not defined
herein shall have the meanings ascribed to such terms in the Securities
Purchase Agreement (as defined below).
W I T N E S S E T H:
WHEREAS, in accordance with Sections 1.1(b)(i) and 11.3 of the
Securities Purchase Agreement, dated as of February 18, 1999, as amended,
by and among the Companies and the Investors (the "Original Investors")
named on the signature pages thereto (the "Securities Purchase Agreement"),
the Original Investors have the right to assign their rights to purchase
some or all of the Shares to one or more of its directors, officers,
employees, affiliates and investment funds or customer accounts which are
under the management of the Investors or their affiliates or to one more
other Investors;
WHEREAS, the Assignor desires to assign to the Assignee its
right to purchase 1,050,000 Shares (the "Subject Shares") and the Assignees
desires to accept such assignment;
WHEREAS, the Assignor maintains its obligation to purchase the
Subject Shares in the event that Assignee fails to exercise its right
granted
hereunder.
NOW, THEREFORE, in consideration of the foregoing premises and
for other good and valuable consideration, the receipt and adequacy of
which is hereby
acknowledged:
1. Assignment and Assumption.
(a) The Assignor hereby assigns its right to purchase the
Subject Shares under the Securities Purchase Agreement to the Assignee.
(b) The Assignee hereby accepts the assignment of the
Assignor's right to purchase the Subject Shares under the Securities
Purchase Agreement and agrees to pay at the Closing all amounts due under
the Securities Purchase Agreement in respect of the Subject Shares. The
Assignee, for the benefit of the Companies, each of the Original Investors
and any other persons who become Investors under the Securities Purchase
Agreement, hereby makes the representations and warranties contained in
Article IV of the Securities Purchase Agreement and agrees to perform and
discharge all of the covenants, agreements, terms, provisions, conditions
and other obligations to be performed by an Investor under the Securities
Purchase Agreement as if the Assignee were an Investor originally named in
the Securities Purchase Agreement.
(c) The Assignee hereby represents and warrants to each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement that (i) the Assignee has received copies of
the Securities Purchase Agreement and in making its determination to
purchase the Subject Shares has relied solely on the representations and
warranties, covenants and other agreements of the Companies contained
therein and not on any representations, warranties or undertakings by the
Assignor or any of the other Original Investors, (ii) the Assignee
currently has, or prior to the Closing will have, sufficient funds to
purchase the Subject Shares as contemplated by the Securities Purchase
Agreement, and (iii) the Assignee's purchase of the Subject Shares will
qualify as a passive investment by the Assignee for purposes of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and accordingly the Assignee is not required to make any filings
under the HSR Act to purchase the Subject Shares.
(d) The Assignee agrees, for the benefit of each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement, (i) to fulfill its obligations under the
Securities Purchase Agreement assumed hereunder, including without
limitation those contained in Article VII, (ii) not to assign without the
prior written consent of the Original Investors any of its rights under
this Assignment and Assumption and (iii) to be a party to and fulfill its
obligations under the Stockholders' Agreement in the form delivered to the
Assignee by the Assignor.
(e) The Assignee agrees that Thomas H. Lee Equity Fund IV, L.P.
and Apollo Management IV, L.P. (collectively, the "Lead Investors") shall
have the sole authority to administer and make determinations as to matters
arising under the Securities Purchase Agreement and related documentation
and that any determination made by the Lead Investors under the Securities
Purchase Agreement and any related documentation shall be binding upon the
Assignee as if the Assignee had consented thereto, including without
limitation any determination as to whether closing conditions have been
satisfied or waived, any amendments or waivers of provisions of the
Securities Purchase Agreement and any determination or exercise of remedies
by the Investors under the Securities Purchase Agreement.
(f) The Companies acknowledge the assignment and assumption
effected hereby and agree that the Assignee shall be entitled to rely on
the Companies' representations and warranties, covenants and other
agreements under the Securities Purchase Agreement as if the Assignee were
an Investor originally named in the Securities Purchase Agreement.
(g) Notwithstanding anything to the contrary herein, the
Assignee agrees that, upon its payment for the Subject Shares in accordance
with the terms of this Assignment and Assumption and the Securities
Purchase Agreement, it shall only be entitled to receive the Subject Shares
from the Companies and shall not, under any circumstances, be entitled to
receive any fees or expenses pursuant to the Securities Purchase Agreement
or otherwise from the Companies, the Original Investors or any other
persons that may become Investors under the Securities Purchase Agreement.
The Companies acknowledge that this Assignment and Assumption shall in no
way affect the Companies' obligation to pay the fees payable under the
Securities Purchase Agreement to the Original Investors as if the Original
Investors had not assigned any portion of the right and obligation to
acquire the Shares.
2. Acknowledgment as to Advisors. (a) The Assignee acknowledges
that Skadden, Arps, Slate, Meagher & Flom LLP is representing the Original
Investors as to certain matters in connection with the transactions
contemplated by the Securities Purchase Agreement and is not acting as
counsel to the Assignee in connection therewith.
(b) The Assignee acknowledges that PricewaterhouseCoopers LLP
is advising the Original Investors as to certain matters in connection with
the transactions contemplated by the Securities Purchase Agreement and is
not acting as advisor to the Assignee in connection therewith.
3. Binding Effect. This Assignment and Assumption shall inure
to the benefit of and be binding on the Assignee, the Assignor, the
Companies, the Original Investors and their respective permitted successors
and assigns, effective immediately upon delivery.
4. Governing Law. This Assignment and Assumption shall be
governed and construed in accordance with the laws of the State of New
York, without regard to any applicable principles of conflicts of law.
IN WITNESS WHEREOF, parties hereto have caused this Assignment
and Assumption to be executed as of the date first above written.
ASSIGNOR:
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc.,
its General Partner
By: /s/ John C. Halsted
---------------------------------------
Name: John C. Halsted
Title: Senior Vice President
ASSIGNEE:
BCP VOTING, INC., as Trustee for Beacon
Capital
Partners, L.P. Voting Trust
By: /s/ John C. Halsted
---------------------------------------
Name: John C. Halsted
Title: Senior Vice President
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ Carla Moreland
-----------------------------------------
Name: Carla Moreland
Title: Senior Vice President
WYNDHAM INTERNATIONAL, INC.
By: /s/ Carla Moreland
-----------------------------------------
Name: Carla Moreland
Title: Senior Vice President
