UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
WYNDHAM INTERNATIONAL, INC.
- --------------------------------------------------------------------------------
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
- --------------------------------------------------------------------------------
(Title of Class of Securities)
983101106
- --------------------------------------------------------------------------------
(CUSIP Number)
RICHARD A. MITCHELL, CMS AFFILIATED PARTNERSHIPS,
1926 ARCH STREET, PHILADELPHIA, PA 19103
(215) 246-3032
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
JUNE 30, 1999
- --------------------------------------------------------------------------------
(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 which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
- ----------------
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the act (however, see the
Notes).
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 2 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS Co-Investment Subpartnership
|
- -------------------------------------------------------------------------------
|
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
| (b) |X|
- --------------------------------------------------------------------------------
3 | SEC USE ONLY
|
- --------------------------------------------------------------------------------
4 | SOURCE OF FUNDS
|
| WC
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 821,886
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 821,886
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-2-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 3 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS Co-Investment Partnership, L.P.
|
- -------------------------------------------------------------------------------
|
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
| (b) |X|
- --------------------------------------------------------------------------------
3 | SEC USE ONLY
|
- --------------------------------------------------------------------------------
4 | SOURCE OF FUNDS
|
| WC
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-3-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 4 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS Co-Investment Partners I-Q, L.P.
|
- -------------------------------------------------------------------------------
|
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
| (b) |X|
- --------------------------------------------------------------------------------
3 | SEC USE ONLY
|
- --------------------------------------------------------------------------------
4 | SOURCE OF FUNDS
|
| WC
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-4-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 5 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS Co-Investment Associates, L.P.
|
- -------------------------------------------------------------------------------
|
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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-5-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 6 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS 1997 Investment 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
|
| 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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-6-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 7 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| MSPS Co-Investment, 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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| CO
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-7-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 8 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS 1997, 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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| CO
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-8-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 9 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS Diversified Patners, L.P.
|
- -------------------------------------------------------------------------------
|
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
| (b) |X|
- --------------------------------------------------------------------------------
3 | SEC USE ONLY
|
- --------------------------------------------------------------------------------
4 | SOURCE OF FUNDS
|
| WC
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 27,939
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 27,939
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-9-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 10 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS/DP Associates, L.P.
|
- -------------------------------------------------------------------------------
|
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
| (b) |X|
- --------------------------------------------------------------------------------
3 | SEC USE ONLY
|
- --------------------------------------------------------------------------------
4 | SOURCE OF FUNDS
|
|
- --------------------------------------------------------------------------------
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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-10-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 11 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| MSPS/DP, 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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| CO
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-11-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 12 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS 1995 Investment 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
|
| 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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| PN
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-12-
<PAGE>
SCHEDULE 13D
- ------------------------- --------------------------
CUSIP No. 983101106 Page 13 of 13 Pages
- ------------------------- --------------------------
- -------------------------------------------------------------------------------
1 | NAME OF REPORTING PERSON
| S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
|
| CMS 1995, 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
- --------------------------------------------------------------------------------
| 7 | SOLE VOTING POWER
| |
| | 0
NUMBER OF SHARES |-----|--------------------------------------
BENEFICIALLY | 8 | SHARED VOTING POWER
OWNED BY EACH | |
REPORTING PERSON | | 849,825 (See Item 5)
WITH |-----|--------------------------------------
| 9 | SOLE DISPOSITIVE POWER
| |
| | 0
|-----|--------------------------------------
| 10 | SHARED DISPOSITIVE POWER
| |
| | 849,825 (See Item 5)
- --------------------------------------------------------------------------------
11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
| 849,825 (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)
|
| 0.51%
- --------------------------------------------------------------------------------
14 | TYPE OF REPORTING PERSON
|
| CO
- --------------------------------------------------------------------------------
[COMPLETE ITEMS 1 THRU 7]
-13-
<PAGE>
Item 1. Security and Issues.
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.
This statement is being filed jointly on behalf of the following persons
(collectively, the "Reporting Persons"): (1) CMS Co-Investment Subpartnership, a
Delaware general partnership; (2) CMS Co-Investment Partners, L.P., a Delaware
limited partnership ("CMS Co-Investment"); (3) CMS Co-Investment Partners I-Q,
L.P., a Delaware limited partnership ("CMS Co-Investment I-Q"); (4) CMS
Co-Investment Associates, L.P., a Delaware limited partnership ("CMS
Associates"); (5) CMS 1997 Investment Partners, L.P., a Delaware limited
partnership ("CMS 1997") (6) CMS Diversified Partners, L.P., a Delaware limited
partnership ("CMS Diversified"); (7) CMS/DP Associates, L.P., a Delaware limited
partnership ("CMS/DP"); (8) MSPS Co-Investment, Inc., a Delaware corporation
("MSPS Co-Investment"); (9) CMS 1997, Inc., a Delaware corporation; (10)
MSPS/DP, Inc., a Delaware corporation ("MSPS/DP"); and (11) CMS 1995, Inc., a
Delaware corporation.
CMS Co-Investment Subpartnership is a Delaware general partnership
comprised of CMS Co-Investment Partners and CMS Co-Investment Partners I-Q, both
of which are principally involved in the business of investment in securities.
The general partners of both CMS Co-Investment Partners and CMS Co-Investment
Partners I-Q, are CMS Associates and CMS 1997, the former of which is
principally engaged in the business of serving as general partner, and the
latter of which is engaged in the business of serving as general partner of CMS
Co-Investment and CMS Co-Investment I-Q and other investment partnerships as
well as in the business of investing in securities. The sole general partner of
CMS Associates is MSPS Co-Investment and the sole general partner of CMS 1997 is
CMS 1997, Inc. The sole shareholders and directors of both MSPS Co-Investment
and CMS 1997, Inc. are Mark I. Solomon and Paul Silberberg. The key executive
officers of both MSPS Co-Investment and CMS 1997, Inc. are Paul Silberberg
President; Richard A. Mitchell - Vice President; William A. Landman - Vice
President; and Ingrid R. Welch - Vice President.
CMS Diversified is a Delaware limited partnership engaged principally in
the business of investment in securities. The general partners of CMS
Diversified are CMS/DP and CMS 1995, the former of which is principally engaged
in the business of serving as general partner and the latter of which is engaged
in the business of serving as general partner of CMS Diversified and other
investment partnerships as well as in the business of investing in securities.
The sole general partner of CMS/DP is MSPS/DP and the sole general partner of
<PAGE>
CMS 1995 is CMS 1995, Inc. The sole shareholders and directors of both MSPS/DP
and CMS 1995, Inc. are Mark I. Solomon and Paul Silberberg. The key executive
officers of both MSPS/DP, Inc. and CMS 1995, Inc. are Paul Silberberg -
President; Richard A. Mitchell Vice President; William A. Landman - Vice
President; and Ingrid R. Welch - Vice President.
The address of each of the Reporting Persons is c/o CMS Affiliated
Partnerships, Two Bala Plaza, 333 City Line Avenue, Suite 300, Bala Cynwyd, PA
19004. The principal occupation of each of Messrs. Solomon and Silberberg is to
act as director and/or executive officer of CMS Investment Resources, Inc., a
Pennsylvania corporation and registered broker-dealer and investment adviser;
Capital Management Systems, Inc., a Pennsylvania corporation and company in the
insurance brokerage business; and each of MSPS Co-Investment, CMS 1997, Inc.,
MSPS/DP, CMS 1995, Inc., and other corporations which act as controlling
persons, directly or indirectly, of other investment partnerships. The principal
occupation of Mr. Landman is to act as the Chief Investment Officer and a Vice
President of CMS Investment Resources, Inc., and as an executive officer of each
MSPS Co-Investment, CMS 1997, Inc., MSPS/DP, CMS 1995, Inc. and other
corporations which act as controlling persons, directly or indirectly, of other
investment partnerships. The principal occupation of Mr. Mitchell and Ms. Welch
is to act as General Counsel and Associate General Counsel, respectively, of CMS
Investment Resources, Inc., and as an executive officer of MSPS Co-Investment,
CMS 1997, Inc., MSPS/DP, CMS 1995, Inc. and other corporations which act as
controlling persons, directly or indirectly, of other investment partnerships.
None of the Reporting Persons or any of their officers or directors or
partners has been (i) convicted in a criminal proceeding during the past five
years (excluding traffic violations and similar misdemeanors), or (ii) 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 or any of them
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 so 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 Partnership, L.P. ("Patriot OP"), Wyndham International Operating
Partnership, L.P. and certain investors (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 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 certain other Investors, including CMS Co-Investment
<PAGE>
Subpartnership and CMS Diversified 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 such
Original Investors assigned to the Co-Investors their right to purchase certain
of the shares of Series B Preferred Stock that such Original Investors were
entitled to purchase under the Securities Purchase Agreement.
Pursuant to the Securities Purchase Agreement and, in the case of CMS
Co-Investment Subpartnership and CMS Diversified, Assignments, the Reporting
Persons purchased an aggregate of 73,000 shares of Series B Preferred Stock for
an aggregate cash purchase price of $7,300,000. Of this amount, CMS
Co-Investment Subpartnership purchased 70,600 shares of Series B Preferred Stock
for $7,060,000 and CMS Diversified purchased 2,400 shares of Series B Preferred
Stock for $240,000.
CMS Co-Investment Subpartnership obtained funds to make its purchase from
CMS Co-Investment and CMS Co-Investment I-Q, and CMS Diversified, CMS
Co-Investment and CMS Co-Investment I-Q obtained funds to make the purchases
described herein through capital contributions from their partners.
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 described 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
<PAGE>
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 Patriot OP's 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.
The number of Class B directors that the Investors are entitled to
designate will decrease from seven to zero based on certain specified beneficial
<PAGE>
ownership percentages of Wyndham Common Stock as more fully set forth in the
Restated Certificate.
The Securities Purchase Agreement provides that until the June 30, 2004, 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 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 ("THL Advisors") (together
<PAGE>
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 THL
Advisors 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 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.
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, Advisors or
Beacon Capital Partners, L.P. 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.
The Securities Purchase Agreement, the Assignment to which any of the
Reporting Persons is a party, the Stockholders' Agreement and the Registration
Rights Agreement described 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.
<PAGE>
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 of the date hereof, to the
knowledge of the Reporting Persons, the Investors collectively own an aggregate
of 116,414,435 Shares (or 39.2% of the Shares outstanding at July 9, 1999, based
on information provided by Wyndham (the "Outstanding Shares"). 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.
CMS Co-Investment Subpartnerships has obtained direct beneficial ownership
of 821,886 Shares pursuant to the Securities Purchase Agreement and the
Assignment and Assumption Agreement, representing approximately 0.49% of the
Outstanding Shares. CMS Co-Investment Subpartnership has sole voting and sole
dispositive power with respect to such Shares. CMS Co-Investment Subpartnership;
CMS Co-Investment and CMS Co-Investment I-Q, as partners in CMS Co-Investment
Subpartnership; and CMS Associates and CMS 1997 as general partners of CMS
Co-Investment and CMS Co-Investment I-Q, may be deemed to share voting and
dispositive power with respect to 849,825 Shares beneficially owned collectively
by CMS Co-Investment Subpartnership and CMS Diversified, which represents
approximately 0.51% of the Outstanding Shares.
CMS Diversified has obtained direct beneficial ownership of 27,939 Shares
pursuant to the Securities Purchase Agreement and the Assignment and Assumption
Agreement, representing approximately 0.02% of the Outstanding Shares. CMS
Diversified has sole voting and sole dispositive power with respect to such
Shares. CMS Diversified, CMS/DP and CMS 1997, as general partners of CMS
Diversified, may be deemed to share voting and dispositive power with respect to
849,825 Shares beneficially owned by CMS Diversified and CMS Co-Investment
Subpartnership, which represents approximately 0.51% of the Outstanding Shares.
All of the foregoing information as to number of Shares and percentage of
Outstanding Shares 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 redeemed by Wyndham with the proceeds of
the Rights Offering, depending upon the participation of Wyndham's stockholders
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
<PAGE>
owner of any Shares other than those which such Reporting Person has acquired
pursuant to the Securities Purchase Agreement and/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
<PAGE>
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 22,
1999 by and among Apollo Real Estate Investment Fund III,
L.P. and Apollo Investment Fund IV, L.P., as Assignors,
and CMS Co-Investment Subpartnership and CMS Diversified
Partners, L.P., as Assignees.
* Filed herewith.
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief 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.
CMS CO-INVESTMENT SUBPARTNERSHIP,
By: CMS Co-Investment Partners, L.P.,
By: CMS/Co-Investment Associates, L.P.,
By: MSPS/Co-Investment, Inc.,
By:
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.,
By: CMS 1997, Inc.,
By:
-------------------------------------
Its:
By: CMS Co-Investment Partners I-Q, L.P.,
By: CMS/Co-Investment Associates, L.P.,
By: MSPS/Co-Investments, Inc.,
By:
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.,
By: CMS 1997, Inc.,
By:
-------------------------------------
Its:
[Signatures continued on following page]
<PAGE>
CMS CO-INVESTMENT PARTNERS, L.P.,
By: CMS Co-Investment Associates, L.P.,
By: MSPS Co-Investment, Inc.,
By:
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.,
By: CMS 1997, Inc.,
By:
-------------------------------------
Its:
CMS CO-INVESTMENT PARTNERS I-Q, L.P..,
By: CMS Co-Investment Associates, L.P.,
By: MSPS Co-Investment, Inc.,
By:
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.,
By: CMS 1997, Inc.,
By:
-------------------------------------
Its:
CMS CO-INVESTMENT ASSOCIATES, L.P.,
By: MSPS Co-Investment, Inc.,
By:
-------------------------------------
Its:
[Signatures continued on following page]
<PAGE>
MSPS CO-INVESTMENT ASSOCIATES, L.P.,
By:
-------------------------------------
Its:
CMS 1997 INVESTMENT PARTNERS, L.P.,
By: CMS 1997, Inc.,
By:
-------------------------------------
Its:
CMS 1997, INC.,
By:
-------------------------------------
Its:
CMS DIVERSIFIED PARTNERS, L.P.,
By: CMS/DP Associates, L.P.,
By: MSPS/DP, Inc.,
By:
-------------------------------------
Its:
By: CMS 1995 Investment Partners, L.P.,
By: CMS 1995, Inc.,
By:
-------------------------------------
Its:
[Signatures continued on following page]
<PAGE>
CMS/DP ASSOCIATES, L.P.,
By: MSPS/DP, Inc.,
By:
-------------------------------------
Its:
MSPS/DP, INC.,
By:
------------------------------------
Its:
CMS 1995 INVESTMENT PARTNERS, L.P.,
By: CMS 1995, Inc.,
By:
------------------------------------
Its:
CMS 1995, INC.,
By:
-------------------------------------
Its:
JOINT FILING AGREEMENT
THIS JOINT FILING AGREEMENT ("Agreement") made as of this 12th day of July,
1999, by, between and among the parties listed on the signature pages hereto.
WHEREAS, each of the parties hereto has an obligation to file with the
Securities and Exchange Commission certain information relating to certain
securities of Wyndham International, Inc. ("Wyndham") on Schedule 13D pursuant
to Rule 13d-1 under the Securities Exchange Act of 1934; and
WHEREAS, each of the parties hereto acquired its interest in such
Securities of Wyndham as part of the same transaction; and
WHEREAS, the parties desire to meet their information filing obligations by
a joint Schedule 13D filing.
NOW, THEREFORE, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Each of the undersigned agrees that it shall join in the preparation,
execution and delivery of a joint Schedule 13D filing relating to the
acquisition of certain securities of Wyndham on June 30, 1999, and that such
joint filing shall be deemed to be filed on behalf of each such undersigned
party.
2. Each of the undersigned authorizes any president or vice president to
execute and deliver such joint Schedule 13D filing.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be executed as of the day and year first above written.
CMS CO-INVESTMENT SUBPARTNERSHIP
By: CMS Co-Investment Partners, L.P.
By: CMS/Co-Investment Associates, L.P.
By: MSPS/Co-Investment, Inc.
By: /s/
--------------------------------------
Its:
[Signatures continued on following page]
<PAGE>
By: CMS 1997 Investment Partners, L.P.
By: CMS 1997, Inc.
By: /s/
--------------------------------------
Its:
By: CMS Co-Investment Partners I-Q, L.P.
By: CMS/Co-Investment Associates, L.P.
By: MSPS/Co-Investments, Inc.
By: /s/
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.
By: CMS 1997, Inc.
By: /s/
-------------------------------------
Its:
CMS CO-INVESTMENT PARTNERS, L.P.
By: CMS Co-Investment Associates, L.P.
By: MSPS Co-Investment, Inc.
By: /s/
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.
By: CMS 1997, Inc.
By: /s/
-------------------------------------
Its:
[Signatures continued on following page]
-2-
<PAGE>
CMS CO-INVESTMENT PARTNERS I-Q, L.P.
By: CMS Co-Investment Associates, L.P.
By: MSPS Co-Investment, Inc.
By: /s/
-------------------------------------
Its:
By: CMS 1997 Investment Partners, L.P.
By: CMS 1997, Inc.
By: /s/
-------------------------------------
Its:
CMS CO-INVESTMENT ASSOCIATES, L.P.
By: MSPS Co-Investment, Inc.
By: /s/
-------------------------------------
Its:
MSPS CO-INVESTMENT, INC.
By: /s/
-------------------------------------
Its:
CMS 1997 INVESTMENT PARTNERS, L.P.
By: CMS 1997, Inc.
By: /s/
-------------------------------------
Its:
[Signatures continued on following page]
-3-
<PAGE>
CMS 1997, INC.
By: /s/
-------------------------------------
Its:
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates, L.P.
By: MSPS/DP, Inc.
By: /s/
-------------------------------------
Its:
By: CMS 1995 Investment Partners, L.P.
By: CMS 1995, Inc.
By: /s/
-------------------------------------
Its:
CMS/DP ASSOCIATES, L.P.
By: MSPS/DP, Inc.
By: /s/
-------------------------------------
Its:
MSPS/DP, INC.
By: /s/
-------------------------------------
Its:
[Signatures continued on following page]
-4-
<PAGE>
CMS 1995 INVESTMENT PARTNERS, L.P.
By: CMS 1995, Inc.
By: /s/
-------------------------------------
Its:
CMS 1995, INC.
By: /s/
-------------------------------------
Its:
-5-
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:
1
<PAGE>
"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."
2
<PAGE>
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/
--------------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
[Signatures continued on following page]
3
<PAGE>
WYNDHAM INTERNATIONAL, INC.
By: /s/
--------------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
------------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc.,
its General Partner
By: /s/
------------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
[Signatures continued on following page]
4
<PAGE>
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/
------------------------------------
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
------------------------------------
Name:
Title:
Address: 1301 Avenue of the
Americas
38th Floor
New York, New York 10019
[Signatures continued on following page]
5
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
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/
------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
[Signatures continued on following page]
6
<PAGE>
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/
------------------------------------
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
------------------------------------
Name:
Title:
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
7
================================================================================
----------------------------
WYNDHAM INTERNATIONAL, INC.
----------------------------
STOCKHOLDERS' AGREEMENT
BY AND AMONG
THE STOCKHOLDERS NAMED
ON THE SIGNATURE PAGES HERETO
----------------------------
Dated as of June 29, 1999
----------------------------
================================================================================
<PAGE>
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 or, 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
<PAGE>
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.
WITNESSETH:
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
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<PAGE>
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
2
<PAGE>
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.
3
<PAGE>
"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 able 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
4
<PAGE>
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.
5
<PAGE>
"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).
6
<PAGE>
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
7
<PAGE>
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.
8
<PAGE>
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).
9
<PAGE>
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.
10
<PAGE>
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 teens 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
11
<PAGE>
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 a 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
12
<PAGE>
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
13
<PAGE>
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 Stockholders 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
14
<PAGE>
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.
15
<PAGE>
Section 6.11. Jurisdiction; 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.
16
<PAGE>
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/
--------------------------------------
Name:
Title:
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/
--------------------------------------
Name:
Title:
Address: c/o Apollo Real Estate Management IV,
L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
17
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_____________________________________
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:_____________________________________
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
<TABLE>
<S> <C>
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By:_____________________________________
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
</TABLE>
<PAGE>
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners, L.P. Voting Trust
By:_____________________________________
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
<PAGE>
STRATEGIC REAL ESTATE INVESTMENTS I,
L.L.C.
By:_____________________________________
Name:
Title:
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
AIF/THL PAH, LLC
By:_____________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
New York, NY 10019
<PAGE>
<TABLE>
<S> <C>
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By:_____________________________________
Name:
Title:
Address: 380 Madison Avenue
12th Floor
New York, New York 10017
</TABLE>
<PAGE>
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P., a general
partner
By: MSPS/DP, Irc., its general partner
By:_____________________________________
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By:_____________________________________
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
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:_____________________________________
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
<PAGE>
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware
corporation
By:_____________________________________
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
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:_____________________________________
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS 1997 Investment Partners, L.P.
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By:_____________________________________
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
<PAGE>
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By:_____________________________________
Name:
Title:
Address: 206 Tetuan Street
San Juan, Puerto Rico 00902
<PAGE>
CKE ASSOCIATES LLC
By:_____________________________________
Name:
Title:
Address: 9465 Wilshire Boulevard
Suite 519
Beverly Hills, CA 90212
<PAGE>
PW HOTEL I, LLC
By:_____________________________________
Name:
Title:
Address: 1285 Avenue of the Americas
New York NY 10019
<PAGE>
THE DARTMOUTH TRUST
By:_____________________________________
Name:
Title:
Address:
THE BONNYBROOK TRUST
By:_____________________________________
Name:
Title:
Address:
THE FRANKLIN TRUST
By:_____________________________________
Name:
Title:
Address:
<PAGE>
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:_____________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
<PAGE>
THOMAS H. LEE FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By:_____________________________________
Name:
Title:
Address: 15 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
Pursuant to the power of attorney executed by
the persons listed on Schedule I hereto in
favor of, and delivered to, the undersigned
_____________________________________________
Todd M. Abbrecht
Attorney-in-fact
<PAGE>
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 O. 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
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
------------------
Dated as of February 18, 1999
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
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
</TABLE>
<PAGE>
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.
1
<PAGE>
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.
(1) 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.
2
<PAGE>
"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
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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.
(2) 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.
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(a) Required Registration.
(1) 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.
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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.
(2) 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
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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.
(3) 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
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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
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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.
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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
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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;
(c) 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
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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:
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(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 the 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
13
<PAGE>
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.
14
<PAGE>
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;
15
<PAGE>
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
16
<PAGE>
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.
17
<PAGE>
(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.
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<PAGE>
(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.
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<PAGE>
(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.
20
<PAGE>
* * *
21
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
<TABLE>
WYNDHAM INTERNATIONAL, INC.
<S> <C>
By: /s/
-----------------------------------------
Name:
Title:
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: /s/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
- -----------------
(212) 261-4060
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/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
- -----------------
(212) 261-4060
22
<PAGE>
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/
Telecopier Number: -------------------------------------
- ----------------- Name:
(617) 227-3514 Title:
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/
Telecopier Number: -------------------------------------
- ----------------- Name:
(617) 227-3514 Title:
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/
Telecopier Number: -------------------------------------
- ----------------- Name:
(617) 227-3514 Title:
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
- -------
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/
Telecopier Number: -------------------------------------
- ----------------- Name:
(617) 227-3514 Title:
</TABLE>
23
<PAGE>
<TABLE>
<S> <C>
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc., its General
- ------- Partner
1 Federal Street, 26th Floor
Boston, MA 02110
Attention: By: /s/
Telecopier Number: -------------------------------------
- ----------------- Name:
(617) 457-0499 Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
Address:
1995 University Avenue
Suite 550
Berkeley, CA 94704 By: /s/
Attention: -----------------------------------------
Telecopier Number: Name:
- ----------------- Title:
(510) 849-1209
</TABLE>
24
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as of this __
day of June, 1999, by and among (i) Thomas H. Lee Equity Fund IV, L.P., Thomas
H. Lee Foreign Fund IV, L.P. and THL-CCI Limited Partnership (collectively, the
"Assignor"), (ii) CMS Co-Investment Subpartnership and CMS Diversified Partners,
L.P. (collectively, the "Assignee"), (iii) Patriot American Hospitality, Inc.,
Wyndham International, Inc., Patriot American Hospitality Partnership, L.P. and
Wyndham International Operating Partnership, L.P. (collectively, the
"Companies"), and (iv) the Investors (the "Original Investors") named on the
signature pages of the Securities Purchase Agreement, dated as of February 18,
1999, as amended, by and among the Companies and the Original Investors (the
"Securities Purchase Agreement"). Capitalized terms used and not defined herein
shall have the meanings ascribed to such terms in the Securities Purchase
Agreement.
W I T N E S S E T H:
WHEREAS, in accordance with Sections 1.1(b) and 11.3 of the Securities
Purchase Agreement, the Original Investors have the right to assign their rights
and obligations to purchase some or all of the Shares with the Companies'
consent (not to be unreasonably withheld or delayed) to other persons, provided
that no more than 25% in interest in the aggregate in the rights and obligations
to purchase Shares may be assigned to persons other than Permitted Assignees;
WHEREAS, the Assignor desires to assign to the Assignee its right and
obligation to purchase 73,000 Shares (the "Subject Shares") and the Assignee
desires to accept such assignment and assume such obligation.
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 and obligation to purchase the
Subject Shares under the Securities Purchase Agreement to the Assignee.
(b) 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 accepts the assignment of the Assignor's right, and
assumes its obligation, 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
1
<PAGE>
if the Assignee were an Investor originally named in the Securities Purchase
Agreement. Notwithstanding the foregoing, the Assignee agrees that it will not
have any rights under Section 6.12 of 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 and undertake the obligations of an Investor under the Securities
Purchase Agreement 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 or obligations 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) (i) The Assignee agrees, for the benefit of each of the Original
Investors and any other persons who become Investors under the Securities
Purchase Agreement, to pay the purchase price for the Subject Shares into escrow
(the "Escrow Amount") no later than June 22, 1999, which Escrow Amount shall be
held in an escrow account, with Apollo Management IV, L.P. acting as escrow
agent (the "Escrow Agent"), pending the Closing. The Escrow Agent shall be
permitted to invest the Escrow Amount in the Chase Vista Premiere U.S.
Government Money Fund or similar investments until the Escrow Amount is paid to
the Company as purchase price for the Subject Shares upon the Closing; provided,
however, that if the Closing does not occur by July 15, 1999, the Escrow Agent
shall release to the Assignee the amount of the Escrow Amount which it deposited
with the Escrow Agent. Any interest or other income received on the Escrow
Amount shall be distributed to the Assignee in proportion to its contribution to
the Escrow Amount, as soon as practicable, but no more than three business days,
following the Closing.
(ii) The Escrow Agent shall not be liable, except for its own gross
negligence or willful misconduct and, except with respect to claims based upon
such gross negligence or willful misconduct that are successfully asserted
against the Escrow Agent, and the Assignee hereto shall indemnify and hold
harmless the Escrow Agent and its officers, directors, employees and agents from
and against any and all losses, liabilities, claims, actions, damages and
expenses,
2
<PAGE>
including reasonable attorneys' fees and disbursements, arising out of and in
connection with its acting as escrow agent under this Assignment. Without
limiting the foregoing, the Escrow Agent shall in no event be liable in
connection with its investment or reinvestment of any cash held by it hereunder
in good faith, in accordance with the terms hereof, including without limitation
any liability for any delays (not resulting from its gross negligence or willful
misconduct) in the investment or reinvestment of the Escrow Amount or any loss
of interest incident to any such delays.
(iii) The Assignee shall pay or reimburse the Escrow Agent upon
request for any taxes relating to income derived from the Escrow Amount and
shall indemnify and hold harmless the Escrow Agent from any amounts that it is
obligated to pay in the way of such taxes. Any payments of income from this
Escrow Account shall be subject to withholding regulations then in force with
respect to United States taxes.
(f) 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.
(g) The Companies acknowledge their consent to the assignment and
assumption effected hereby and agree that (i) the Assignor shall no longer be
obligated to purchase the Subject Shares under the Securities Purchase Agreement
and (ii) 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.
(h) The Original Investors other than the Assignor hereby consent to this
Assignment and Assumption and acknowledge that the assignment contemplated
hereby will limit their collective right to make assignments under the
Securities Purchase Agreement.
(i) 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.
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<PAGE>
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:
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
4
<PAGE>
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV,
By: /s/
------------------------------------
Name:
Title:
ASSIGNEE:
CMS DIVERSIFIED PARTNERS, L.P.
Federal Tax ID No.:_______________
By: CMS/DP Associates L.P., a general partner
By: MSPS/DP, Inc., its general partner
By: /s/
------------------------------------
Name:
Title:
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By: /s/
------------------------------------
Name:
Title:
5
<PAGE>
CMS CO-INVESTMENT SUBPARTNERSHIP, a
Delaware general partnership
Federal Tax ID No.:_______________
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/
------------------------------------
Name:
Title:
By: CMS 1997 Investment Partners, L.P., a Delaware
limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/
------------------------------------
Name:
Title:
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/
------------------------------------
Name:
Title:
6
<PAGE>
By: CMS 1997 Investment Partners, L.P. a Delaware
limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/
------------------------------------
Name:
Title:
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/
------------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By: /s/
------------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP,
L.P.
By: PAH GP, INC., its General Partner
By: /s/
------------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By: /s/
------------------------------------
Name:
Title:
7
<PAGE>
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/
------------------------------------
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
------------------------------------
Name:
Title:
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
8
<PAGE>
THOMAS H. LEE CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------------
Name:
Title:
BEACON CAPITAL PARTNERS, L.P.
By: /s/
------------------------------------
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
------------------------------------
Name:
Title:
9
