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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1 AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13D-2(a)
Wyndham International, Inc.
(Name of Issuer)
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Class A Common Stock, $0.01 par value per share
(Title of Class of Securities)
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983101 10 6
(CUSIP Number)
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Cyril L. Meduna
Guayacan Private Equity Fund Limited Partnership
c/o Advent-Morro Equity Partners, Inc.
Banco Popular Building
Suite 903, 206 Tetuan Street
San Juan, PR 00902
(787) 725-5285
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
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With a copy to:
David W. Watson, P.C.
Goodwin, Procter & Hoar LLP
Exchange Place
Boston, Massachusetts 02109-2881
(617) 570-1000
June 30, 1999
(Date of Event Which Requires Filing of this Statement)
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If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box: [ ]
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CUSIP NO. 983101 10 6 13D PAGE 2 OF 13 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Guayacan Private Equity Fund Limited Partnership
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Delaware
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SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
116,414 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
116,414 (see Item 5)
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AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
116,414 (see Item 5)
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CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
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PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
LESS THAN 0.1%
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TYPE OF REPORTING PERSON*
14
PN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
2
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CUSIP NO. 983101 10 6 13D PAGE 3 OF 13 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Advent-Morro Equity Partners, Inc.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
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CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Puerto Rico
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SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
116,414 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
116,414 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
116,414 (see Item 5)
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
LESS THAN 0.1%
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TYPE OF REPORTING PERSON*
14
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
3
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CUSIP NO. 983101 10 6 13D PAGE 4 OF 13 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Venture Management, Inc.
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
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SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
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CITIZENSHIP OR PLACE OF ORGANIZATION
6
Puerto Rico
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SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
116,414 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
116,414 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
116,414 (see Item 5)
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
LESS THAN 0.1%
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TYPE OF REPORTING PERSON*
14
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
4
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CUSIP NO. 983101 10 6 13D PAGE 5 OF 13 PAGES
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NAME OF REPORTING PERSON
1 S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Cyril L. Meduna
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CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
OO
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
5 PURSUANT TO ITEMS 2(d) or 2(e) [_]
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF 0
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
116,414 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 0
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
116,414 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
116,414 (see Item 5)
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12 [_]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
LESS THAN 0.1%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
5
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Item 1. Security and Issuer.
-------------------
The class of equity securities to which this statement relates is the
Class A Common Stock, $0.01 par value per share (the "Shares"), of Wyndham
International, Inc., a Delaware corporation ("Wyndham"). The principal
executive offices of Wyndham are located at 1950 Stemmons Freeway, Suite 6001,
Dallas, Texas 75207.
Item 2. Identity and Background.
-----------------------
(a)-(c), (f). This statement is being filed on behalf of the
following persons (the "Reporting Persons"): Guayacan Private Equity Fund
Limited Partnership, a Delaware limited partnership ("GPEF"), Advent-Morro
Equity Partners, Inc., a Puerto Rico corporation ("AMEP"), Venture Management,
Inc., a Puerto Rico corporation ("VMI"), and Cyril L. Meduna.
GPEF is principally engaged in the business of investments in
securities. The general partner of GPEF is AMEP, which is principally engaged
in the business of serving as general partner of GPEF and is controlled by VMI.
VMI is wholly-owned by Mr. Cyril L. Meduna and is principally engaged in the
business of holding securities of AMEP. The principal occupation of Mr. Meduna
is set forth below.
The directors of AMEP are: Mr. Cyril L. Meduna, Mr. Peter A. Brooke,
and Mr. Zoilo Mendez. The executive officers of AMEP are: Mr. Cyril L. Meduna
(President), Ms. Carmen Rocafort (Vice President), and Mr. Zoilo Mendez
(Secretary and Treasurer). The principal occupation of each of Messrs. Meduna
and Mendez and Ms. Rocafort is listed in the previous sentence. Mr. Meduna is
also the sole director, executive officer and stockholder of VMI. The principal
occupation of Mr. Brooke is Chairman of Advent International Corporation. Each
of the above individuals is a citizen of the United States.
The business address of GPEF, AMEP, VMI, Messrs. Meduna and Mendez and
Ms. Rocafort is c/o Advent-Morro Equity Partners, Banco Popular Building, Suite
903, 206 Calle Tetuan, San Juan, PR 00902. The business address of Mr. Brooke
is c/o Advent International Corporation, 75 State Street, Boston, MA 02109.
(d) and (e). Neither GPEF, AMEP, VMI or any of their directors or
officers has been convicted in a criminal proceeding during the past five years
(excluding traffic violations and similar misdemeanors).
Neither GPEF, AMEP, VMI or any of their directors or officers has been
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction during the past five years as a result of which any was or is
subject to a judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state securities laws
or finding any violation with respect to such laws.
6
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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")
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 GPEF, (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 an Assignment, GPEF purchased an aggregate of 10,000
shares of Series B Preferred Stock for an aggregate cash purchase price of
$1,000,000. GPEF obtained funds to make the purchase described herein through
capital contributions from its limited partners.
Item 4. Purpose of Transactions.
-----------------------
GPEF has purchased the Series B Preferred Stock for general investment
purposes and retains the right to change its investment intent. Subject to
market conditions and other factors, including the restrictive provisions of the
Securities Purchase Agreement and the Stockholders' Agreement described below,
GPEF 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.
The Series B Preferred Stock is convertible, at the option of the
holder, into shares of Wyndham Class B Common Stock, par value $0.01 per share
(the "Class B Common Stock"), which in turn is convertible on a one for one
basis into the Shares. For each share of Series B Preferred Stock converted
into Class B Common Stock, the holder is entitled to receive that number of
shares of Class B Common Stock equal to $100.00 divided by the conversion price
of the Series B Preferred Stock, which is currently $8.59 per share, subject to
adjustment, in addition to accrued but unpaid dividends. Each share of the
Series B Preferred Stock may also be converted into one share of Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Preferred
Stock"), of Wyndham and, other than certain permitted transfers under the
Securities Purchase Agreement, is mandatorily converted into one share of Series
A Preferred Stock if it is transferred to unaffiliated transferees. The Series
A Preferred Stock will be convertible into Shares at the same conversion rate
from time to time in effect at which the Series B Preferred Stock is convertible
into shares of Class B Common Stock.
Both the Series A Preferred Stock and the Series B Preferred Stock
will pay quarterly dividends at the rate per annum of 9.75% of the stated amount
thereof, with a portion paid in cash and a portion paid in additional shares of
Series A Preferred Stock or Series B Preferred
7
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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
ownership percentages of Wyndham Common Stock as more fully set forth in the
Restated Certificate.
The Securities Purchase Agreement provides that until June 30, 2004,
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
8
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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 Section 7.1 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
and Apollo Real Estate Management (collectively, the "Apollo Stockholder") and
(ii) THL Advisors (together with the Apollo Stockholder, the "Lead
Stockholders") will have the right, for so long as the Investors are entitled to
designate eight Class B directors to the Board, to designate four directors to
the Board. At such time as the Investors are entitled to designate fewer than
eight Class B directors, the right to designate will be allocated as between the
Apollo Stockholder and THL Advisory 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
9
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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, THL
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 GPEF 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.
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 41.2% of the Outstanding
Shares (as defined below). For purposes of calculating ownership percentages in
this Schedule 13D, the number of "Outstanding Shares" includes (i) the
165,886,524 Shares outstanding on July 9, 1999, based on information provided to
the Investors by Wyndham and (ii) the Shares issuable upon conversion of the
Series B Preferred Stock held by the Investor or Investors whose ownership is
being measured, excluding for such purpose the Shares issuable upon conversion
of any other shares of Series B Preferred Stock or other convertible securities.
Each of the Reporting Persons expressly disclaim 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.
Pursuant to the Assignment to which GPEF is a party, GPEF has obtained
direct beneficial ownership of 116,414 Shares pursuant to the Securities
Purchase Agreement, representing less than 0.1% of the Outstanding Shares. By
virtue of the relationship among the Reporting Persons described herein, each of
the Reporting Persons may be deemed to share voting and dispositive power with
respect to the 116,414 shares directly owned by GEPF.
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 the Series B Preferred Stock redeemed
by Wyndham with the proceeds of the Rights Offering, depending upon the
participation in the Rights Offering.
Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission that any Reporting Person is the beneficial
owner of any of the Shares other than those which GPEF has acquired pursuant to
the Assignment to which GPEF is a party.
10
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(c) The responses to Items 3 and 4 of this Schedule 13D are
incorporated herein by reference.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of the Issuer.
---------------------------
The responses to Items 3, 4 and 5 of this Schedule 13D and the
Exhibits to this Schedule 13D are incorporated herein by reference.
Except for the agreements described in Items 3 and 4, to the best
knowledge of the Reporting Persons, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the persons named
in Item 2, and any other person, with respect to any securities of Wyndham
including but not limited to transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Exhibit 1*: Joint Filing Agreement dated as of July 12, 1999 by
and among the Reporting Persons.
Exhibit 2: Securities Purchase Agreement dated as of February 18,
1999 by and among Wyndham, Patriot, Patriot American
Hospitality Partnership, L.P., Wyndham International
Operating Partnership, L.P. and the investors set forth
on the signature pages thereto (incorporated herein by
reference to Exhibit 99.1 to Wyndham's Current Report on
Form 8-K filed with the Securities and Exchange
Commission on March 2, 1999).
Exhibit 3*: Amendment dated as of June 28, 1999 to Securities
Purchase Agreement dated as of February 18, 1999 by and
among Wyndham, Patriot, Patriot American Hospitality
Partnership, L.P., Wyndham International Operating
Partnership, L.P. and the Investors set forth on the
signature pages thereto.
Exhibit 4*: Stockholders' Agreement dated as of June 29, 1999 by
and among the Stockholders named therein.
Exhibit 5*: Registration Rights Agreement dated as of February 18,
1999 by and among Wyndham and the persons listed on the
signature pages thereto.
Exhibit 6*: Assignment and Assumption Agreement dated as of
June 22, 1999 by and among Thomas H. Lee Private Equity
Fund IV, L.P., Thomas H. Lee Foreign Fund IV, L.P., and
THL-CCI Limited Partnership, as Assignors and Guayacan
Private Equity Fund Limited Partnership, as Assignee.
* Filed herewith.
11
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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.
GUAYACAN PRIVATE EQUITY FUND, L.P.
By: Advent-Morro Equity Partners, Inc., its
General Partner
By: /s/ Cyril L. Meduna
-------------------------------------------
Name: Cyril L. Meduna
Title: President
ADVENT-MORRO EQUITY PARTNERS, INC.
By: /s/ Cyril L. Meduna
-------------------------------------------
Name: Cyril L. Meduna
Title: President
VENTURE MANAGEMENT, INC.
By: /s/ Cyril L. Meduna
-------------------------------------------
Name: Cyril L. Meduna
Title: President
/s/ Cyril L. Meduna
-------------------------------------------
Cyril L. Meduna
12
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Exhibit 1
---------
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the Securities Exchange
Act of 1934, as amended, the undersigned hereby agree to the joint filing with
all other Reporting Persons listed below on behalf of each of them of a
Statement on Schedule 13D (including any amendments thereto) with respect to the
common stock, par value $0.01 per share, of Wyndham International, Inc., a
Delaware corporation. The undersigned further consent and agree to the
inclusion of this Agreement as an Exhibit to such Schedule 13D. This Agreement
may be executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this agreement as of the
12th day of July, 1999.
GUAYACAN PRIVATE EQUITY FUND, L.P.
By: Advent-Morro Equity Partners, Inc., its
General Partner
By: /s/ Cyril L. Meduna
-------------------------------------------
Name: Cyril L. Meduna
Title: President
ADVENT-MORRO EQUITY PARTNERS, INC.
By: /s/ Cyril L. Meduna
-------------------------------------------
Name: Cyril L. Meduna
Title: President
VENTURE MANAGEMENT, INC.
By: /s/ Cyril L. Meduna
-------------------------------------------
Name: Cyril L. Meduna
Title: President
/s/ Cyril L. Meduna
-------------------------------------------
Cyril L. Meduna
<PAGE>
Exhibit 3
---------
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
------------------------------------------
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (the "Amendment") is made
as of June 28, 1999, by and among Patriot American Hospitality, Inc., a Delaware
corporation ("Patriot"), Wyndham International, Inc., a Delaware corporation
("Wyndham," and together with Patriot, the "Companies"), Patriot American
Hospitality Partnership, L.P. ("Patriot OP"), Wyndham International Operating
Partnership, L.P. ("Wyndham OP," and together with Patriot OP, the "Operating
Partnerships") and the parties identified on the signature page hereof as the
Original Investors (the "Original Investors"). All capitalized terms used
herein without definition shall have the meanings ascribed to them in that
certain Securities Purchase Agreement dated as of February 18, 1999 by and among
the Companies, the Operating Partnerships and the Original Investors (the
"Securities Purchase Agreement").
WHEREAS, the Companies, the Operating Partnerships, and the Original
Investors desire to make certain amendments to the Securities Purchase
Agreement.
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definition of Permitted Assignees and Permitted Third Party
-----------------------------------------------------------
Transferee. The term "Permitted Assignees" as defined in Section 1.1(b) of the
- ----------
Securities Purchase Agreement shall include (i) the voting trusts formed or to
be formed by Beacon Capital Partners, Inc. and Beacon Capital Partners, L.P.
("Beacon") for the purpose of holding Beacon's Shares, as described in that
certain Confidential Information Statement prepared by Beacon dated June 8,
1999, as amended, and (ii) The Dartmouth Trust, The Franklin Trust and The
Bonnybrook Trust. The term "Permitted Third Party Transferees" as defined in
Section 1.1(b) of the Securities Purchase Agreement shall include the
beneficiaries of AIF/THL PAH LLC (other than Ares Leveraged Investment Fund,
L.P. and Ares Leveraged Investment Fund II, L.P., which shall be deemed to be
Permitted Assignees of Apollo Investment Fund IV, L.P. and Apollo Real Estate
Investment Fund III, L.P.) to the extent that AIF/THL PAH LLC distributes Shares
to these beneficiaries and these beneficiaries agree to be bound by the terms
and conditions of the Securities Purchase Agreement.
2. Delayed Closing of Portion of Shares Purchase.
---------------------------------------------
(a) Section 1.2 of the Securities Purchase Agreement is hereby amended
by adding the following sentence at the end of Section 1.2:
"Notwithstanding anything contained in this Agreement to the contrary,
upon the terms and subject to the conditions set forth herein, on July
1, 1999, Wyndham will issue and sell to Beacon, and, in reliance on
the representations and warranties of the Companies and the Operating
Partnerships contained herein, Beacon will purchase from Wyndham
450,000 Shares (the "Delayed Purchase Shares") of the 1,500,000 Shares
to be purchased by Beacon pursuant to Section
<PAGE>
1.1, for a purchase price of $100.00 per Share. Beacon, in its sole
discretion, may fund up to $45 million (but only to the extent that
the same, less accrued interest and exit fees, has been advanced by
Beacon on or prior to July 1, 1999) of the Purchase Price of the
Delayed Purchase Shares through transfer of all or part of Beacon's
loan receivable, plus accrued interest and exit fees, from PAH Realty
Company, LLC which is secured by a mortgage on the Batterymarch hotel,
Boston, Massachusetts (the "Batterymarch Mortgage Loan")."
(b) Section 2.1 of the Securities Purchase Agreement is hereby amended
by adding the following sentence at the end of Section 2.1:
"Notwithstanding anything contained in this Agreement to the contrary,
for purposes of all matters in this Agreement relating to the purchase
and sale of the Delayed Purchase Shares, including, without limitation
the satisfaction of the conditions precedent contained in Article V of
this Agreement, the term "Closing" shall mean the closing of the
purchase and sale of the Delayed Purchase Shares, and the term
"Closing Date" shall mean July 1, 1999.
3. Unaccredited Investors as Permitted Assignees. Section 4.1(b) of the
---------------------------------------------
Securities Purchase Agreement is amended by deleting the last sentence of
Section 4.1(b) and replacing it with the following"
"Each Investor, other than three of the Permitted Assignees of Thomas
H. Lee Equity Fund IV, L.P., Thomas H. Lee Foreign Fund IV, L.P.,
Thomas H. Lee Charitable Investment L.P., and THL-CCI Limited
Partnership qualifies as an "accredited investor" as such term is
defined in Section 2(15) of the Securities Act and Regulation D
promulgated thereunder."
4. Definition of "Covered Anatole Termination". Section 10.2(a) of the
------------------------------------------
Securities Purchase Agreement is amended so that the defined term "Covered
Anatole Termination" shall mean any termination of the Anatole Management
Contract pursuant to Section 12.2(2) of the Anatole Management Contract, as
amended February 16, 1999. The Companies and the Operating Partnerships agree
to make no further amendments to Section 12.2(2) of the Anatole Management
Contract without the Investors' prior written consent.
5. Restructuring Plan. The first sentence of paragraph number 6 of
------------------
Exhibit A - Restructuring Plan, to the Securities Purchase Agreement is hereby
amended to change the reference in such sentence from "voting stock" to "non-
voting stock."
6. Form of Bylaws. Exhibit C to the Securities Purchase Agreement, Form
--------------
of Amended and Restated Bylaws of Wyndham, is hereby deleted and replaced in its
entirety with the attached Exhibit C.
2
<PAGE>
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.
[Remainder of Page Intentionally Left Blank]
3
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused the foregoing
Agreement to be executed by one of its duly authorized signatories as of the
date first above written.
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ Anne Raymond
--------------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL, INC.
By: /s/ Anne Raymond
--------------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/ Anne Raymond
--------------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
4
<PAGE>
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By: /s/ Anne Raymond
--------------------------------------
Name: Anne Raymond
Title: Chief Investment Officer
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
[Remainder of page intentionally left blank]
5
<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/ Richard Koenigsberger
--------------------------------------
Name: Richard Koenigsberger
Title: Vice President
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/ Eric Press
--------------------------------------
Name: Eric Press
Title: Vice President
Address: 1301 Avenue of the Americas
38/th/ Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
6
<PAGE>
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
7
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/ John C. Halsted
--------------------------------------
Name: John C. Halsted
Title: Senior Vice President
Address: 1 Federal Street
26/th/ Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/ Kenneth T. Rosen
--------------------------------------
Name: Kenneth T. Rosen
Title: Manager
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
8
<PAGE>
EXHIBIT 4
================================================================================
_______________________________
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
<TABLE>
<CAPTION>
Section Heading Page
------- ------- ----
<S> <C> <C>
Article 1. Certain Definitions.............................................................. 1
Article 2. Board of Directors............................................................... 7
Section 2.1. Board of Directors......................................................... 7
Article 3. Restrictions on Transfer......................................................... 7
Section 3.1. Restrictions on Transfer................................................... 8
Section 3.2. Exceptions to Restrictions................................................. 8
Section 3.3. Binding Effect on Transferees.............................................. 9
Section 3.4. Notifications Regarding Transfers.......................................... 9
Section 3.5. Restrictions on Conversion................................................. 9
Article 4. Tag-Along Rights; Drag-Along Rights.............................................. 10
Section 4.1. Tag-Along Rights........................................................... 11
Section 4.2. Drag-Along Rights.......................................................... 11
Article 5. Registration Rights.............................................................. 12
Section 5.1. Registration Rights........................................................ 12
Article 6. Miscellaneous.................................................................... 13
Section 6.1. Further Actions; Cooperation............................................... 13
Section 6.2. Successors and Assigns..................................................... 13
Section 6.3. Representatives............................................................ 14
Section 6.4. Amendment; Modification; Waiver............................................ 14
Section 6.5. Notices.................................................................... 14
Section 6.6. Entire Agreement: Governing Law............................................ 14
Section 6.7. Injunctive Relief.......................................................... 15
Section 6.8 Headings................................................................... 15
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the Shares of
Common Stock; New Issuances................................................ 15
Section 6.10. Counterparts............................................................... 15
Section 6.11. Jurisdiction; Forum........................................................ 16
Section 6.12. Termination................................................................ 16
</TABLE>
<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.
W I T N E S S E T H:
-------------------
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as of
February 18, 1999, as amended, by and among Wyndham International, Inc. (the
"Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partnership, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the "Original
Investors") and (ii) Assignment and Assumption Agreements by and among the
Company, Patriot and the Stockholders, the Stockholders will purchase shares of
Series B Convertible Preferred Stock (the "Shares") of the Company; and
WHEREAS, the parties hereto deem it in their best interests to enter into
this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale, assignment,
transfer, encumbrance or other disposition of their securities of the Company
and to provide for certain rights and obligations with respect thereto as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the following
respec 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
1
<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,
supple mented 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, exchange 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 sub stance 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
Incorpo ration 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 Agree ment 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 Percent age 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
Stockhold ers 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 desig nated 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 Agree ment 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
applica ble 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 registra tion 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 permit ted 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 Stock holders, 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
---------------------------------
Stock holder 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 Stock holder 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 conver sion 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 Stock holder, for the same consideration and
otherwise on the same terms and conditions (including timing of receipt of
consideration) as the sale by Lead Stockholders; provided, however, that if
-----------------
either of the Lead Stockholders and its respective Affiliates cease to
collectively beneficially own at least 20% of the shares of Common Stock
(including shares of Common Stock issuable upon conversion of securities
convertible, exchange able or exercisable for shares of Common Stock)
beneficially owned by them immedi ately 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 15/th/ 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 10/th/ 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
11
<PAGE>
period, the Lead Stockholders or the Majority Stockholders, as applicable, shall
return to each of the Stockholders all certificates or other evidence of title
and ownership representing shares that such Stockholders delivered for transfer
pursuant hereto, together with any docu ments 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 consider ation (by bank or certified check) for
the shares transferred pursuant hereto and shall furnish such other evidence of
the completion and time of completion of such transfer and the terms thereof as
may be reasonably requested by such Stockholders.
Article 5. Registration Rights
Section 5.1 Registration Rights.
-------------------
(a) Each of the Stockholders shall be entitled to the benefits of, and
shall be bound by the obligations of, the Registration Rights Agreement with
respect to any Registrable Securities held by such Stockholder as if the
Stockholder were a party to the Registration Rights Agreement; provided,
however, that (i) any request for a Required Registration (as such term is
defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of the
Registration Rights Agreement made on or prior to the third anniversary of the
date of this Agreement shall only be made by or with the consent of both of the
Lead Stockholders, (ii) any request for a Required Registration pursuant to
Section 2.1(a) of the Registration Rights Agreement made during the period
following the third anniversary of the date of this Agreement through the fifth
anniversary of the date of this Agreement shall only be made by the Apollo
Stockholder, the Lee Stockholder or the Beacon Stockholder and (iii) any request
for a Shelf (as such term is defined in the Registration Rights Agreement)
pursuant to Section 2.1(a) of the Registration Rights Agreement made on or prior
to the fifth anniversary of the date of this Agreement shall only be made by or
with the consent of both of the Lead Stockholders. Notwithstanding the
foregoing, each of the Stockholders shall be entitled to exercise its rights to
include its Registrable Securities in a registration effected by the Company
pursuant to Section 2.1(b) of the Registration Rights Agreement if such
registration is a Required Registration made in accordance with the
immediately preceding sentence or if either Lead Stockholder is including
Registrable Securities in such registration. Each of the Lead Stockholders
agrees for the benefit of the other Lead Stockholder that it will not,
12
<PAGE>
without the approval of the other Lead Stockholder, include its Registrable
Securities in a registration effected by the Company pursuant to Section 2.1(b)
of the Registration Rights Agreement during the three year period following the
date of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the Registration
Rights Agreement to the contrary, in the event that the Permitted Beacon Voting
Trust Transfer occurs, none of the shares of Preferred Stock or Common Stock
that are received by the beneficiaries of the Beacon Voting Trust in connection
therewith or are issued or issuable upon conversion of such shares or shares
received upon such conversion shall be Registrable Securities, other than those
shares that are held by the Beacon Stockholder or by a Beacon Affiliate and
remain subject to the transfer, conversion and other restrictions of this
Agreement. The Beacon Stockholder, in its capacities as the trustee and initial
beneficiary of the First Beacon Voting Trust and the Second Beacon Voting Trust,
hereby consents and agrees to be bound by the provisions of this Section 5.1(b)
on behalf of itself and all future beneficiaries of the Beacon Voting Trust and
acknowledges and agrees that it has the sole responsibility to notify all such
beneficiaries or transferees of Shares owned by the Beacon Voting Trust of the
terms of this Section 5.1(b) and the fact that they are bound thereby.
Article 6. Miscellaneous
Section 6.1 Further Actions; Cooperation. Each of the Stockholders
----------------------------
agrees to use its reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable in connection with
the transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, each of the Stockholders (i) acknowl edges 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
13
<PAGE>
to all of the terms of this Agreement, and by taking and holding such shares
such Person shall be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to comply with all of the terms and
provisions of this Agreement.
Section 6.3 Representatives. Each of the Stockholders hereby designates
---------------
and appoints (and each Third Party Transferee of each such Stockholders is
hereby deemed to have so designated and appointed) the Lead Stockholders to
serve as the representatives of each such Stockholder to administer and make
determinations as to matters arising or contemplated by the Securities Purchase
Agreement and related documentation, including without limitation
indemnification obligations, disputes and other rights and obligations. Each of
the Stockholders hereby agrees and acknowledges that the Lead Stockholders shall
be the only persons authorized to take any action so required, authorized or
contem plated 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 Agree
-------------------------------
ment 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 Stock holder's consent.
Section 6.5 Notices. All notices and other communications provided for
-------
hereunder shall be in writing by hand delivery, telex, telecopier, or any
courier guarantee ing 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.
14
<PAGE>
Section 6.6 Entire Agreement: Governing Law.
-------------------------------
(a) This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire agreement among the
parties hereto with respect to the subject transactions contemplated hereby and
supersede all prior oral and written agreements and memoranda and undertakings
among the parties hereto with regard to this subject matter.
(B) THIS AGREEMENT SHALL BE GOVERNED BY AND CON STRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELA WARE (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/ Richard Koenigsberger
-------------------------------
Name: Richard Koenigsberger
Title: Vice President
Address: c/o Apollo Real Estate Management IV,
L.P.
1301 Avenue of the Americas
38/th/ 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/ Richard Koenigsberger
-------------------------------
Name: Richard Koenigsberger
Title: Vice President
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38/th/ Floor
New York, New York 10019
17
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Scott Sperling
------------------------------
Name: Scott Sperling
Title: Managing Director
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Scott Sperling
------------------------------
Name: Scott Sperling
Title: Managing Director
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Thomas H. Lee
------------------------------
Name: Thomas H. Lee
Title: Manager
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Scott Sperling
------------------------------
Name: Scott Sperling
Title: Managing Director
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/ John C. Halsted
------------------------------
Name: John C. Halsted
Title: Senior Vice President
Address: 1 Federal Street
26/th/ Floor
Boston, Massachusetts 02110
<PAGE>
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners, L.P. Voting Trust
By: /s/ John C. Halsted
------------------------------
Name: John C. Halsted
Title: Vice President
Address: 1 Federal Street
26/th/ Floor
Boston, Massachusetts 02110
<PAGE>
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/ Kenneth T. Rosen
------------------------------
Name: Kenneth T. Rosen
Title: Manager
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
AIF/THL PAH, LLC
By: /s/ Michael D. Weiner
------------------------------
Name: Michael D. Weiner
Title: Vice President
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
New York, NY 10019
<PAGE>
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By: /s/ David Gilbert
------------------------------
Name: David Gilbert
Title: Vice President
Address: 380 Madison Avenue
12/th/ Floor
New York, New York 10017
<PAGE>
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P., a general
partner
By: MSPS/DP, Inc., its general partner
By: /s/ Marian E. Cohen
---------------------------
Name: Marian E. Cohen
Title: Vice President
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: /s/ Marian E. Cohen
---------------------------
Name: Marian E. Cohen
Title: Vice President
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: /s/ Marian E. Cohen
---------------------------
Name: Marian E. Cohen
Title: Vice President
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: /s/ Marian E. Cohen
---------------------------
Name: Marian E. Cohen
Title: Vice President
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: /s/ Marian E. Cohen
---------------------------
Name: Marian E. Cohen
Title: Vice President
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: /s/ Marian E. Cohen
---------------------------
Name: Marian E. Cohen
Title: Vice President
Address: 1926 Arch Street
Philadelphia, PA 19103
<PAGE>
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By: /s/ Cyril Meduna
---------------------------
Name: Cyril Meduna
Title:
Address: 206 Tetuan Street
San Juan, Puerto Rico 00902
<PAGE>
CKE ASSOCIATES LLC
By: /s/ Michael S. Dreyer
---------------------------
Name: Michael S. Dreyer
Title: Vice President
Address: 9465 Wilshire Boulevard
Suite 519
Beverly Hills, CA 90212
<PAGE>
PW HOTEL I, LLC
By: /s/ Dhananjay M. Pai
---------------------------
Name: Dhananjay M. Pai
Title: Vice President
Address: 1285 Avenue of the Americas
New York, NY 10019
<PAGE>
THE DARTMOUTH TRUST
By: /s/ Alan M. Leventhal
---------------------------
Name: Alan M. Leventhal
Title: Trustee
Address: One Federal St.
Boston, MA 02110
By: /s/ Norman B. Leventhal
---------------------------
Name: Norman B. Leventhal
Title: Trustee
Address: One Federal St.
Boston, MA 02110
THE BONNYBROOK TRUST
By: /s/ Alan M. Leventhal
---------------------------
Name: Alan M. Leventhal
Title: Trustee
Address: One Federal St.
Boston, MA 02110
By: /s/ J. Robert Casey
---------------------------
Name: J. Robert Casey
Title: Trustee
Address: One Federal St.
Boston, MA 02110
THE FRANKLIN TRUST
By: /s/ Alan M. Leventhal
---------------------------
Name: Alan M. Leventhal
Title: Trustee
Address: One Federal St.
Boston, MA 02110
By: /s/ J. Robert Casey
---------------------------
Name: J. Robert Casey
Title: Trustee
Address: One Federal St.
Boston, MA 02110
<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: /s/ Eric Press
---------------------------
Name: Eric Press
Title: Vice President
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38/th/ Floor
New York, New York 10019
<PAGE>
THOMAS H. LEE FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
---------------------------
Name: Todd M. Abbrecht
Title: Vice President
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
Pursuant to the power of attorney executed by
the persons listed on Schedule I hereto in favor
of, and delivered to, the undersigned
/s/ Todd M. Abbrecht
-------------------------------------
Todd M. Abbrecht
Attorney-in-fact
<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 D. Flaster
Robert Schiff Lee 1988 Irrevocable Trust
Stephen Zachary Lee
Charles W. Robins as Custodian for Jesse Lee
Charles W. Robins
James Westra
Adam A. Abramson
Joanne M. Ramos
WM. Matthew Kelly
<PAGE>
Exhibit 5
---------
================================================================================
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
Dated as of February 18, 1999
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
Section 1. Definitions ........................................... 2
Section 2. Registration Under the Securities Act ................. 5
(a) Required Registration ............................... 6
(b) Incidental Registration ............................. 9
(c) Expenses ............................................11
(d) Effective Registration Statement Suspension .........11
(e) Selection of Underwriters ...........................12
Section 3. Restrictions on Public Sale by Wyndham ................12
Section 4. Registration Procedures ...............................12
Section 5. Indemnification; Contribution .........................19
(a) Indemnification by Wyndham ..........................19
(b) Indemnification by Holders ..........................20
(c) Conduct of Indemnification Proceedings ..............20
(d) Contribution ........................................21
Section 6. Miscellaneous .........................................23
(a) Inconsistent Agreements .............................23
(b) Amendments and Waivers ..............................23
(c) Notices .............................................23
(d) Successors and Assigns ..............................24
(e) Recapitalizations, Exchanges, etc., Affecting
Registrable Securities ..............................25
(f) Counterparts ........................................25
(g) Descriptive Headings, Etc ...........................25
(h) Severability ........................................25
(i) Governing Law .......................................26
(j) Specific Performance ................................26
(k) Entire Agreement ....................................26
(i)
<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
<PAGE>
WHEREAS, in the event of any transfer of any shares of Class B Common
Stock to any Person other than an Initial Holder, such shares of Class B Common
Stock will automatically convert, upon the terms and subject to the conditions
set forth in the Restated Certificate of Incorporation of Wyndham; and
WHEREAS, in order to induce the Initial Holders to complete the
transactions contemplated by the Securities Purchase Agreement, Wyndham has
agreed to provide registration rights on the terms and subject to the conditions
provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto
agree as follows:
Section 1. Definitions.
-----------
(a) 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.
2
<PAGE>
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
------
"Incidental Registration" shall mean a registration required to be
-----------------------
effected by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
---------------------------------
statement of Wyndham, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the Securities
Act and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Initial Holder(s)" shall have the meaning set forth in the preamble.
-----------------
"Majority Holders" shall mean Holders of the Registrable Securities as
-----------------
to which registration has been requested representing in the aggregate a
majority of such shares beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A Preferred
-------------
Stock or the Class A Common Stock, the average, rounded to the nearest cent
($0.01), of the closing price per share of the Series A Preferred Stock or the
Class A Common Stock, respectively, on the New York Stock Exchange for twenty
consecutive calendar days ending on the trading day immediately preceding the
date in question.
"NASD" shall mean the National Association of Securities Dealers, Inc.
----
"Permitted Transferee" shall mean any Person which would be a
--------------------
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general partnership,
------
corporation, trust, joint venture, association, joint stock company or
unincorporated organization.
3
<PAGE>
"Prospectus" shall mean the prospectus included in a Registration
-----------
Statement, including any preliminary Prospectus, and any such Prospectus as
amended or supplemented by any prospectus supplement with respect to the terms
of the offering of any portion of the Registrable Securities and by all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.
"Registrable Securities" shall mean (i) any shares of Class B Common
-----------------------
Stock issued or issuable upon conversion of any shares of Series B Preferred
Stock, (ii) any shares of Series A Preferred Stock issued or issuable upon
conversion of the shares of Series B Preferred Stock, (iii) any shares of Class
A Common Stock issued or issuable upon conversion of any shares of Series A
Preferred Stock described in clause (ii) above, and (iv) any securities issued
or issuable with respect to any Series A Preferred Stock, Series B Preferred
Stock, Class A Common Stock or Class B Common Stock described in clauses (i),
(ii) and (iii) above by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation,
reorganization or otherwise.
"Registration Expenses" shall mean (i) all registration, listing,
----------------------
qualification and filing fees (including NASD filing fees), (ii) fees and
disbursements of counsel for Wyndham, (iii) accounting fees incident to any such
registration, (iv) blue sky fees and expenses (including counsel fees in
connection with the preparation of a Blue Sky Memorandum and legal investment
survey), (v) all expenses of any Persons in preparing or assisting in preparing,
printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales
agreements, securities certificates and other documents relating to the
performance of and compliance with this Agreement, (vi) the expenses incurred in
connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, and (v) all internal
expenses of Wyndham (including all salaries and expenses of officers and
employees performing legal or accounting duties), provided, however, that
Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement of
-----------------------
Wyndham which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
4
<PAGE>
"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.
(b) Capitalized terms used herein and not otherwise defined shall have
the meanings assigned such terms in the Securities Purchase Agreement.
Section 2. Registration Under the Securities Act.
-------------------------------------
(a) Required Registration.
---------------------
5
<PAGE>
(i) Right to Require Registration. One or more Holders of Registrable
---------------------------------
Securities shall have the right from time to time to request in writing (a
"Request") which Request shall specify the Registrable Securities intended to be
disposed of by such Holders and the intended method of distribution thereof)
that Wyndham register such Holders' Registrable Securities by filing with the
SEC a Required Registration Statement. Upon the receipt of such a Request,
Wyndham will, by the fifth business day thereafter, give written notice of such
requested registration to all Initial Holders of Registrable Securities, and,
not later than the 45th calendar day after the receipt of such a Request by
Wyndham, Wyndham will use all reasonable efforts to cause to be filed with the
SEC a Required Registration Statement covering the Registrable Securities
which Wyndham has been so requested to register by Holders thereof other than
the Initial Holder(s) initiating the Request by written request given to Wyndham
within 9 business days after the giving of such written notice by Wyndham,
providing for the registration under the Securities Act of the Registrable
Securities which Wyndham has been so requested to register by all such Holders,
to the extent necessary to permit the disposition of such Registrable Securities
so to be registered in accordance with the intended methods of distribution
thereof specified in such Request or further requests, and shall use all
reasonable efforts to have such Required Registration Statement declared
effective by the SEC as soon as practicable thereafter and to keep such Required
Registration Statement continuously effective for a period of at least 60
calendar days (or, in the case of an Underwritten Offering, such period as the
Underwriters shall reasonably require) following the date on which such Required
Registration Statement is declared effective (or such shorter period which will
terminate when all of the Registrable Securities covered by such Required
Registration Statement have been sold pursuant thereto), including, if
necessary, by filing with the SEC a post-effective amendment or a supplement to
the Required Registration Statement or the related Prospectus or any document
incorporated therein by reference or by filing any other required document or
otherwise supplementing or amending the Required Registration Statement, if
required by the rules, regulations or instructions applicable to the
registration form used by Wyndham for such Required Registration Statement or by
the Securities Act, the Exchange Act, any state securities or blue sky laws, or
any rules and regulations thereunder.
Wyndham shall not be required to effect, pursuant to this Section
2(a)(i), (i) a Required Registration hereunder unless Holders beneficially
owning Registrable Securities with an aggregate Market Value of $50 million have
initiated or joined in such Request and (ii) more than eight registrations in
the aggregate requested by the Holders, provided that so long as the Holders
collectively beneficially own Registrable Securities with a Market Value of at
least $100 million, the
6
<PAGE>
Holders shall have the right to require Wyndham to effect additional Required
Registrations provided that the Registrable Securities included therein have an
aggregate Market Value of at least $50 million and provided further that any
Investor proposing to distribute its Registrable Securities to its partners or
shareholders shall have the right to require Wyndham to effect an additional
Required Registrations to facilitate such distribution.
A Request may be withdrawn prior to the filing of the Required
Registration Statement by the Holder(s) which made such Request (a "Withdrawn
Request") and a Required Registration Statement may be withdrawn prior to the
effectiveness thereof by the Holders of a majority of the Registrable Securities
included therein (a "Withdrawn Required Registration"), and, in either such
event, such withdrawal shall be treated as a Required Registration which shall
have been effected pursuant to clause (ii) of the immediately preceding
paragraph, except that the Holders may require Wyndham to disregard one
Withdrawn Request for purposes of such clause (ii).
The Holders shall not, without Wyndham's consent, be entitled to
deliver a Request for a Required Registration after the completion of the
Required Registration if less than 90 calendar days have elapsed since (A) the
effective date of a prior Required Registration Statement, (B) in the case of a
Required Registration which is effected other than by means of an Underwritten
Offering, the date of sale by the Holders of their Registrable Securities
pursuant thereto or (C) the date of withdrawal of a Withdrawn Required
Registration.
Notwithstanding the foregoing, from and after the Closing, Wyndham may
delay the filing of a Required Registration Statement if the Board of Directors
of Wyndham determines that such action is in the best interests of Wyndham's
stockholders, and only for an aggregate number of days, taken together with any
Blackout Period invoked pursuant to Section 2(a)(ii), not to exceed 60 days in
any twelve month period (a "Blackout Period").
The registration rights granted pursuant to the provisions of this
Section 2(a)(i) shall be in addition to the registration rights granted pursuant
to the other provisions of this Section 2.
(ii) Shelf Registration. Promptly upon the Request of the Holders
------------------------
(but in no event later than the 75th calendar day after the receipt of such a
Request), the Company shall use its reasonable best efforts to promptly process,
file and cause to become effective a Registration Statement on Form S-3 (the
"Shelf") for an
7
<PAGE>
offering of Registrable Securities to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (or any similar rule that may be
adopted by the SEC) and permitting sales in ordinary course brokerage or dealer
transactions not involving an Underwritten Offering. Each Holder which owns, on
the date of the initial filing of the Shelf (the "Initial Filing Date"),
Registrable Securities (each such Holder, an "Eligible Holder") shall have the
right to resell such Registrable Securities under the Shelf until the date that
such Eligible Holder sells all of such Registrable Securities, whether or not
under the Shelf (such Eligible Holder's "Termination Date"). The Company agrees
to use its reasonable best efforts to keep the Shelf continuously effective and
usable for resale of Registrable Securities until all Eligible Holders lose
their rights to resell Registrable Securities under the Shelf.
Notwithstanding the foregoing, (A) from the Closing and until the
effectiveness of a Shelf Registration Statement, Wyndham may delay the filing of
a Shelf Registration Statement, or (B) from and after the effectiveness of a
Shelf Registration Statement, each Holder agrees that it will not effect any
sales of the Registrable Securities pursuant to the Shelf Registration, in
either case, if the Board of Directors of Wyndham determines that such action is
in the best interests of Wyndham's stockholders, and only for a Blackout Period,
taken together with any Blackout Period invoked pursuant to Section 2(a)(i), not
to exceed 60 days.
The registration rights granted pursuant to the provisions of this
Section 2(a)(ii) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(iii) Priority in Required and Shelf Registrations. If a Required or
--------------------------------------------
Shelf Registration pursuant to this Section 2(a) involves an Underwritten
Offering, and the sole Underwriter or the lead managing Underwriter, as the case
may be, of such Underwritten Offering shall advise Wyndham in writing (with a
copy to each Holder requesting registration) on or before the date 5 days prior
to the date then scheduled for such offering that, in its opinion, the amount of
Registrable Securities requested to be included in such Required or Shelf
Registration exceeds the amount which can be sold in such offering without
adversely affecting the distribution of the Registrable Securities being
offered, Wyndham will include in such Required or Shelf Registration only the
amount of Registrable Securities that Wyndham is so advised can be sold in such
offering; provided, however, that Wyndham shall be required to include in such
Required or Shelf Registration: first, all Registrable Securities requested to
be included in the Required or Shelf Registration by the Holders and, to the
extent not all such Registrable Securities can be included in such Required
Registration, the number of Registrable Securities to be included shall be
8
<PAGE>
allocated pro rata on the basis of the number of shares of Preferred Stock or
Common Stock (whichever is applicable) beneficially owned at that time by all
the Holders requesting to participate in the Required or Shelf Registration or
on such other basis as shall be agreed among the Holders, by agreement of the
Majority Holders; and second, if all Registrable Securities requested to be
included in the Required or Shelf Registration by the Holders can be so
included, all other securities requesting, in accordance with any registration
rights which are granted in compliance with Section 6(a), to be included in
such Required Registration which are of the same class as the Registrable
Securities and, to the extent not all such securities can be included in such
Required or Shelf Registration, the number of securities to be included shall be
allocated pro rata among the holders thereof requesting inclusion in such
Required or Shelf Registration on the basis of the number of securities
requested to be included by all such holders.
(b) Incidental Registration.
-----------------------
(i) Right to Include Registrable Securities. If at any time Wyndham
---------------------------------------
proposes to register any of their Preferred Stock or Common Stock under the
Securities Act (other than (A) any registration of public sales or distributions
solely by and for the account of Wyndham of securities issued (x) pursuant to
any employee benefit or similar plan or any dividend reinvestment plan or (y) in
any acquisition by Wyndham, or (B) pursuant to Section 2(a) hereof), either in
connection with a primary offering for cash for the account of Wyndham or a
secondary offering, Wyndham will, each time it intends to effect such a
registration, give written notice to all Initial Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
Registration Statement with the SEC pertaining thereto, informing such Initial
Holders of its intent to file such Registration Statement and of the Holders'
rights to request the registration of the Registrable Securities held by the
Holders under this Section 2(b) (the "Company Notice"). Upon the written
request of any Initial Holder made within 7 business days after any such Company
Notice is given (which request shall specify the Registrable Securities intended
to be disposed of by such Initial Holder and such Initial Holder's Permitted
Transferees and, unless the applicable registration is intended to effect a
primary offering of Preferred Stock or Common Stock for cash for the account of
Wyndham, the intended method of distribution thereof), Wyndham will use all
reasonable efforts to effect the registration under the Securities Act of all
Registrable Securities which Wyndham has been so requested to register by such
Initial Holders to the extent required to permit the disposition (in accordance
with the intended methods of distribution thereof or, in the case of a
registration which is intended to effect a primary offering for cash for the
account of Wyndham, in accordance with
9
<PAGE>
Wyndham's intended method of distribution) of the Registrable Securities so
requested to be registered, including, if necessary, by filing with the SEC a
post-effective amendment or a supplement to the Incidental Registration
Statement or the related Prospectus or any document incorporated therein by
reference or by filing any other required document or otherwise supplementing or
amending the Incidental Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by Wyndham
for such Incidental Registration Statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Incidental
Registration Statement filed in connection with such registration, Wyndham shall
determine for any reason not to register or to delay registration of such
securities, Wyndham may, at its election, give written notice of such
determination to each Initial Holder of Registrable Securities and, thereupon,
(A) in the case of a determination not to register, Wyndham shall be relieved of
their obligation to register any Registrable Securities in connection with such
registration (but not from their obligation to pay the Registration Expenses
incurred in connection therewith), and (B) in the case of a determination to
delay such registration, Wyndham shall be permitted to delay registration of any
Registrable Securities requested to be included in such Incidental Registration
Statement for the same period as the delay in registering such other securities.
The registration rights granted pursuant to the provisions of this
Section 2(b) shall be in addition to the registration rights granted pursuant to
the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration pursuant
------------------------------------
to this Section 2(b) involves an Underwritten Offering of the securities so
being registered, whether or not for sale for the account of Wyndham, and the
sole Underwriter or the lead managing Underwriter, as the case may be, of such
Underwritten Offering shall advise Wyndham in writing (with a copy to each
Initial Holder of Registrable Securities requesting registration) on or before
the date 5 days prior to the date then scheduled for such offering that, in its
opinion, the amount of securities (including Registrable Securities) requested
to be included in such registration exceeds the amount which can be sold in (or
during the time of) such offering without adversely affecting the distribution
of the securities being offered, then Wyndham will include in such registration:
first, all the securities entitled to be sold pursuant to such Registration
Statement without reference to the incidental registration rights of any
holder (including the Holders), and second, the amount of other securities
(including Registrable Securities) requested to be included in such
10
<PAGE>
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
11
<PAGE>
respect to the offering of such Registrable Securities, subject to the consent
of Wyndham which shall not be unreasonably withheld. No Holder may participate
in any Underwritten Offering hereunder unless such Holder (a) agrees to sell
such Holder's securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, custody
agreements, indemnities, underwriting agreements and other documents required
under the terms of such Underwritten Offering.
Section 3. Restrictions on Public Sale by Wyndham.
--------------------------------------
If requested by the sole Underwriter or lead managing Underwriter(s)
in such Underwritten Offering, Wyndham agrees not to effect any public sale or
distribution (other than public sales or distributions solely by and for the
account of Wyndham of securities issued pursuant to any employee benefit or
similar plan or any dividend reinvestment plan) of any securities during the
period commencing on the date Wyndham receives a Request from any Initial Holder
and continuing until (a) for a Registration Statement relating to such
Underwritten Offering other than a Shelf Registration, 90 days after such
Registration Statement is declared effective by the SEC and (b) for a Shelf
Registration Statement relating to such Underwritten Offering, 90 days after the
commencement of such Underwritten Offering, (or for such shorter period as the
sole or lead managing Underwriter shall request) unless earlier terminated by
the sole Underwriter or lead managing Underwriter(s) in such Underwritten
Offering.
Section 4. Registration Procedures.
-----------------------
In connection with the obligations of Wyndham pursuant to Section 2,
Wyndham shall use all reasonable efforts to effect or cause to be effected the
registration of the Registrable Securities under the Securities Act to permit
the sale of such Registrable Securities by the Holders in accordance with their
intended method or methods of distribution, and Wyndham shall:
(a) (i) prepare and file a Registration Statement with the SEC which
(x) shall be on Form S-3 (or any successor to such form), if available, (y)
shall be available for the sale or exchange of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof and (z) shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all other information reasonably requested by the lead
managing Underwriter or sole
12
<PAGE>
Underwriter, if applicable, to be included therein, (ii) use all reasonable
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2, (iii) use all reasonable efforts to not
take any action that would cause a Registration Statement to contain a material
misstatement or omission or to be not effective and usable for resale of
Registrable Securities during the period that such Registration Statement is
required to be effective and usable and (iv) cause each Registration Statement
and the related Prospectus and any amendment or supplement thereto, as of the
effective date of such Registration Statement, amendment or supplement (x) to
comply in all material respects with any requirements of the Securities Act and
the rules and regulations of the SEC and (y) not to contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and file with
the SEC such amendments and post-effective amendments to each such Registration
Statement, as may be necessary to keep such Registration Statement effective for
the applicable period; cause each such Prospectus to be supplemented by any
required prospectus supplement, and as so supplemented to be filed pursuant to
Rule 424 under the Securities Act; and comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the selling Holders thereof, as
set forth in such registration statement;
(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
13
<PAGE>
declared effective by the SEC, under all applicable state securities or "blue
sky" laws of such jurisdictions as each Underwriter, if any, or any Holder of
Registrable Securities covered by a Registration Statement, shall reasonably
request; (ii) use all reasonable efforts to keep each such registration or
qualification effective during the period such Registration Statement is
required to be kept effective; and (iii) do any and all other acts and things
which may be reasonably necessary or advisable to enable each such Underwriter,
if any, and Holder to consummate the disposition in each such jurisdiction of
such Registrable Securities owned by such Holder; provided, however, that
Wyndham shall not be obligated to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
consent to be subject to general service of process (other than service of
process in connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly, and, if
requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which Wyndham is a
party, the representations and warranties of Wyndham contained in such agreement
cease to be true and correct in all material respects or if Wyndham receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during the
period a Registration Statement is effective as a result of which such
Registration Statement or the related Prospectus contains any untrue statement
of a material fact or omits to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any state
securities authority for amendments or supplements to a Registration Statement
and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
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<PAGE>
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and any
post-effective amendment thereto, including financial statements and schedules,
all documents incorporated therein by reference and all exhibits; and furnish to
each Holder of Registrable Securities, without charge, at least one conformed
copy of each Registration Statement and any post-effective amendment thereto
(without documents incorporated therein by reference or exhibits thereto,
unless requested);
(i) cooperate with the selling Holders of Registrable Securities and
the sole Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and enable such Registrable Securities to be in
such denominations (consistent with the provisions of the governing documents
thereof) and registered in such names as the selling Holders or the sole
Underwriter or lead managing Underwriter of an Underwritten Offering of
Registrable Securities, if any, may reasonably request at least three business
days prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph (e)(iv)
of this Section, use all reasonable efforts to prepare a supplement or post-
effective amendment to a Registration Statement or the related Prospectus, or
any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading;
(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and including
provisions with respect to indemnification and contribution in customary form
and consistent with the provisions relating to indemnification and contribution
contained herein) and take all other customary and appropriate actions in order
to expedite or facilitate the disposition of such Registrable Securities and in
connection therewith:
(1) make such representations and warranties to the Holders of such
Registrable Securities and the Underwriters, if any, in form, substance
15
<PAGE>
and scope as are customarily made by issuers to underwriters in
similar underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates thereof (which
counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the lead managing Underwriter, if any, and the Majority
Holders of the Registrable Securities being sold) addressed to each selling
Holder and the Underwriters, if any, covering the matters customarily
covered in opinions requested in sales of securities or underwritten
offerings and such other matters as may be reasonably requested by such
Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from Wyndham's
independent certified public accountants addressed to the selling Holders
of Registrable Securities, if permissible, and the Underwriters, if any,
which letters shall be customary in form and shall cover matters of the
type customarily covered in "cold comfort" letters to underwriters in
connection with primary underwritten offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders and
such representative of the selling Holders as the Majority Holders of the
Registrable Securities covered by any Registration Statement relating to
the Registration and providing for, among other things, the appointment of
such representative as agent for the selling Holders for the purpose of
soliciting purchases of Registrable Securities, which agreement shall be
customary in form, substance and scope and shall contain customary
representations, warranties and covenants; and
(5) deliver such customary documents and certificates as may be
reasonably requested by the Majority Holders of the Registrable Securities
being sold or by the managing Underwriters, if any.
The above shall be done (i) at be effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any registration,
and (ii) at each closing under any underwriting or similar agreement as and to
the extent required thereunder;
(l) make available for inspection by representatives of the Initial
Holders of the Registrable Securities and any Underwriters participating in any
16
<PAGE>
disposition pursuant to a Registration Statement and any counsel or accountant
retained by such Holders or Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of Wyndham and cause the
respective officers, directors and employees of Wyndham to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Initial Holders of Registrable Securities and to counsel to such
Initial Holders and to the Underwriter or Underwriters of an Underwritten
Offering of Registrable Securities, if any; fairly consider such reasonable
changes in any such document prior to or after the filing thereof as the counsel
to the Holders or the Underwriter or the Underwriters may request and not file
any such document in a form to which the Majority Holders of Registrable
Securities being registered or any Underwriter shall reasonably object; and make
such of the representatives of Wyndham as shall be reasonably requested by the
Holders of Registrable Securities being registered or any Underwriter available
for discussion of such document;
(ii) within a reasonable time prior to the filing of any document
which is to be incorporated by reference into a Registration Statement or a
Prospectus, provide copies of such document to counsel for the Holders; fairly
consider such reasonable changes in such document prior to or after the filing
thereof as counsel for such Holders or such Underwriter shall request; and make
such of the representatives of Wyndham as shall be reasonably requested by such
counsel available for discussion of such document;
(n) cause all Registrable Securities to be qualified for inclusion in
or listed on the New York Stock Exchange or any securities exchange on which
securities of the same class issued by Wyndham is then so qualified or listed if
so requested by the Majority Holders of Registrable Securities covered by a
Registration Statement, or if so requested by the Underwriter or Underwriters
of an Underwritten Offering of Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the SEC, including making available to its security
holders an earnings statement covering at least 12 months which shall satisfy
the provisions of Section 11 (a) of the Securities Act and Rule 158 thereunder;
17
<PAGE>
(p) cooperate and assist in any filings required to be made with the
NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution and sale
of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding meetings
with potential investors and taking such other actions as shall be requested by
the Majority Holders of Registrable Securities covered by a Registration
Statement or the lead managing Underwriter of an Underwritten Offering, in each
case subject to the reasonable availability of Wyndham's executives given their
other duties.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to Wyndham such information regarding such Holder required to be
included in the Registration Statement, the ownership of Registrable Securities
by such Holder and the proposed distribution by such Holder of such Registrable
Securities as Wyndham may from time to time reasonably request in writing.
Each Holder agrees that, upon receipt of any notice from Wyndham of
the happening of any event of the find described in paragraph (e)(iv) of this
Section, such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the affected Registration Statement until such Holder's
receipt of the copies of the supplemented or amended Prospectus, contemplated by
paragraph (j) of this Section, and, if so directed by Wyndham, such Holder will
deliver to Wyndham (at the expense of Wyndham), all copies in its possession,
other than permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities which was current at the time of
receipt of such notice.
Section 5. Indemnification; Contribution.
-----------------------------
(a) Indemnification by Wyndham. Wyndham agrees, jointly and
--------------------------
severally, to indemnify and hold harmless each Person who participates as an
underwriter (any such Person being an "Underwriter"), each Holder and their
respective partners, directors, officers and employees and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
18
<PAGE>
(i) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Registration Statement pursuant to which Registrable Securities were
registered under the Securities Act, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact contained in any Prospectus,
including all documents incorporated therein by reference, or the omission
or alleged omission therefrom of a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened, or
of any other claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred (including
fees and disbursements of counsel), incurred in investigating, preparing or
defending against any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case whether
or not such Person is a party, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under
subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to Wyndham by such Holder or Underwriter expressly
for use in a Registration
19
<PAGE>
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
20
<PAGE>
counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement) at the indemnifying party's or parties' expense.
If an indemnifying party or parties is not so entitled to assume the defense of
such action or does not assume such defense, after having received the notice
referred to in the first sentence of this paragraph, the indemnifying party or
parties will pay the reasonable fees and expenses of counsel for the indemnified
party or parties (limited in each jurisdiction to one counsel for all
Underwriters and another counsel for all other indemnified parties under this
Agreement). No indemnifying party or parties will be liable for any settlement
effected without the written consent of such indemnifying party or parties,
which consent shall not be unreasonably withheld. If an indemnifying party is
entitled to assume, and assumes, the defense of such action or proceeding in
accordance with this paragraph, such indemnifying party or parties shall not,
except as otherwise provided in this subsection (c), be liable for any fees and
expenses of counsel for the indemnified parties incurred thereafter in
connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and equitable
------------
contribution in circumstances in which the indemnity agreement provided for in
this Section is for any reason held to be unenforceable by the indemnified
parties although applicable in accordance with its terms in respect of any
losses, liabilities, claims, damages, judgments and expenses suffered by an
indemnified party referred to therein, each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages, judgments and expenses in such proportion as is
appropriate to reflect the relative fault of Wyndham on the one hand and of the
liable selling Holders (including, in each case, that of their respective
officers, directors, employees and agents) on the other in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages, judgments or expenses, as well as any other relevant equitable
considerations. The relative fault of Wyndham on the one hand and of the liable
selling Holders (including, in each case, that of their respective officers,
directors, employees and agents) on the other shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by Wyndham, on the one hand, or by or on behalf
of the selling Holders, on the other, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of
the losses, liabilities, claims, damages, judgments and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
paragraph (c) of this Section, any legal or other fees or expenses reasonably
21
<PAGE>
incurred by such party in connection with investigating or defending any action
or claim.
(ii) Wyndham and each Holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in sub-
paragraph (i) above. Notwithstanding the provisions of this paragraph (d), in
the case of distributions to the public, an indemnifying Holder shall not be
required to contribute any amount in excess of the amount by which (A) the total
price at which the Registrable Securities sold by such indemnifying Holder and
its affiliated indemnifying Holders and distributed to the public were offered
to the public exceeds (B) the amount of any damages which such indemnifying
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11 (f) of the Securities Act)
shall be entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder or an Underwriter within the meaning of Section 15 of the
Securities Act (and their respective partners, directors, officers and
employees) shall have the same rights to contribution as such Holder or
Underwriter; and each director of Wyndham, each officer of Wyndham who signed
the Registration Statement, and each Person, if any, who controls Wyndham within
the meaning of Section 15 of the Securities Act, shall have the same rights to
contribution as Wyndham.
Section 6. Miscellaneous.
-------------
(a) Inconsistent Agreements. Wyndham is not a party to, and will not
-----------------------
on or after the date of this Agreement enter into, any agreement which conflicts
with the provisions of this Agreement nor has Wyndham entered into any such
agreement, and Wyndham will not on or after the date of this Agreement modify in
any manner adverse to the Holders any such agreement; provided, however, that
nothing in this sentence shall prohibit Wyndham from granting registration
rights, which become exercisable from and after the Closing, to any Person (a
"Third Party") who becomes an owner of shares of any of Wyndham's capital stock
after the date hereof (including granting incidental registration rights with
respect to any Registration Statement required to be filed or maintained
hereunder) if and only if (i) the Third-Party's registration rights (including,
without limitation, demand registration rights) provide to the Holders of
Registrable Securities who seek to
22
<PAGE>
participate in such registration (whether or not such registration is initiated
hereunder) rights no less favorable to such Holders than those rights provided
to the Holders hereunder as if such registration were a Required Registration
(including, without limitation, the priority provisions contained in Section
2(a)(iii)), provided, further, however, that if such registration is not
initiated by the Initial Holders such registration shall not be deemed one of
the eight Required Registrations for purposes of the limitations contained in
the second paragraph of Section 2(a)(i), and (ii) the Third Party is required to
enter into the agreements provided for in Section 3 hereof (as if it were
Wyndham) on the terms and for the period applicable to Wyndham (including
preventing sales pursuant to Rule 144 under the Securities Act) if requested by
the sole Underwriter or lead managing Underwriter in an Underwritten Offering
initiated by Holders of Registrable Securities pursuant to Section 2(a). The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of Wyndham's other
issued and outstanding securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Wyndham has obtained the written consent of a majority
of the Holders and, if any such amendment, modification, supplement, waiver or
consent would adversely affect the rights of any Holder hereunder, the written
consent of each Holder which is affected shall be obtained; provided, however,
that nothing herein shall prohibit any amendment, modification, supplement,
waiver or consent the effect of which is limited only to those Holders who have
agreed to such amendment, modification, supplement, waiver or consent.
(c) Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to Wyndham by means of a notice
given in accordance with the provisions of this paragraph (c), which address
initially is, with respect to each Holder as of the date hereof, the address set
forth next to such Holder's name on the signature pages hereof with a copy to
Randall H. Doud, Esq., telecopier number (212) 735-2000, and with respect to
each Holder who becomes such after the date hereof, the address of such Holder
in the stock records of Wyndham, (ii) if to Wyndham, at 1950 Stemmons Freeway,
Suite 6001, Dallas, Texas 75207, telecopier number (214) 863-1527, Attention:
General Counsel, with a copy to Gilbert G. Menna, P.C., telecopier number (617)
523-1231, and thereafter at such other address, notice of which is given in
accordance with the provisions of this paragraph.
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<PAGE>
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.
24
<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.
25
<PAGE>
(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.
* * *
26
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/ James D. Carreker
--------------------------------
Name: James D. Carreker
Title: Chairman and Chief Executive Officer
27
<PAGE>
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/ Ricardo Koenigsberger
Attention: ---------------------------------
Telecopier Number: Name: Ricardo Koenigsberger
- ----------------- Title: Vice President
(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/ Eric Press
Attention: ---------------------------------
Telecopier Number: Name: Eric Press
- ----------------- Title: Vice President
(212) 261-4060
28
<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/ Scott Sperling
Telecopier Number: ---------------------------------
- ----------------- Name: Scott Sperling
(617) 227-3514 Title: Managing Director
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
- -------
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: ---------------------------------
- ----------------- Name: Scott Sperling
(617) 227-3514 Title: Managing Director
THOMAS H. LEE CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
Address:
- -------
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: ---------------------------------
- ----------------- Name: Scott Sperling
(617) 227-3514 Title: Managing Director
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
Address:
- -------
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/ Scott Sperling
Telecopier Number: ---------------------------------
- ----------------- Name: Scott Sperling
(617) 227-3514 Title: Managing Director
29
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc.,
its General Partner
Address:
- -------
1 Federal Street, 26/th/ Floor
Boston, MA 02110
Attention: By: /s/ John C. Halsted
Telecopier Number: ---------------------------------
- ----------------- Name: John C. Halsted
(617) 457-0499 Title: Senior Vice President
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
Address:
- -------
1995 University Avenue
Suite 550
Berkeley, CA 94704
Attention: By: /s/ Kenneth T. Rosen
Telecopier Number: ---------------------------------
- ----------------- Name: Kenneth T. Rosen
(510) 849-1209 Title: Manager
30
<PAGE>
Exhibit 6
---------
ASSIGNMENT AND ASSUMPTION
-------------------------
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as of this
22nd 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) Guayacan Private Equity Fund Limited
Partnership (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 10,000 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.
<PAGE>
(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 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
2
<PAGE>
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 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, 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.
3
<PAGE>
(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.
2. Acknowledgment as to Advisors. (a) The Assignee acknowledges
-----------------------------
that Skadden, Arps, Slate, Meagher & Flom LLP is representing the Original
4
<PAGE>
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.
5
<PAGE>
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/ Todd M. Abbrecht
----------------------------
Name: Todd M. Abbrecht
Title: Vice President
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
----------------------------
Name: Todd M. Abbrecht
Title: Vice President
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Scott Schoen
----------------------------
Name: Scott Schoen
Title: Managing Director
6
<PAGE>
ASSIGNEE:
GUAYACAN PRIVATE EQUITY FUND LIMITED PARTNERSHIP
Federal Tax ID No.: 66-0536180
---------------
By: /s/ Cyril Meduna
---------------------------
Name: Cyril Meduna
Title:
7
<PAGE>
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/ Carla Moreland
---------------------------
Name: Carla Moreland
Title: Vice President
WYNDHAM INTERNATIONAL, INC.
By: /s/ Carla Moreland
---------------------------
Name: Carla Moreland
Title: Vice President
8
<PAGE>
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/ Carla Moreland
------------------------
Name: Carla Moreland
Title: Vice President
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By: /s/ Carla Moreland
---------------------
Name: Carla Moreland
Title: Vice President
9
<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/ Ricardo Koenigsberger
--------------------------------
Name: Ricardo Koenigsberger
Title: Vice President
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/ Eric Press
--------------------------------
Name: Eric Press
Title: Vice President
10
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------
Name: Todd M. Abbrecht
Title: Vice President
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Todd M. Abbrecht
--------------------------------
Name: Todd M. Abbrecht
Title: Vice President
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/ Thomas H. Lee
--------------------------------
Name: Thomas H. Lee
Title: Manager
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/ Scott Schoen
--------------------------------
Name: Scott Schoen
Title: Managing Director
11
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: /s/ John C. Halsted
--------------------------------
Name: John C. Halsted
Title: Senior Vice President
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/ Kenneth T. Rosen
--------------------------------
Name: Kenneth T. Rosen
Title: Manager
12
