<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1 AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
Wyndham International, Inc.
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(Name of Issuer)
Class A Common Stock, $0.01 par value per share
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(Title of Class of Securities)
983101 10 6
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(CUSIP Number)
Robert L. Adler, Esq.
Munger, Tolles and Olson LLP
355 S. Grand Avenue
Los Angeles, California 90071
(213) 683-9100
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
June 30, 1999
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box: [_]
<PAGE>
13D
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CUSIP NO. 983101 60 1 PAGE 2 OF __ PAGES
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- ------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS: CKE Associates, LLC
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS: 95-4610223
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS* AF
4
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
California
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7 0 (see Item 5)
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 10,000 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9 0
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 10,000 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 10,000 (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 0%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14 OO
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
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CUSIP NO. 983101 60 1 PAGE 3 OF __ PAGES
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NAMES OF REPORTING PERSONS: The Michael and Judy Ovitz Revocable Trust
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS: 04-3159375
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS* N/A
4
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6 California
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7 0 (see Item 5)
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 10,000 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9 0 (see Item 5)
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 10,000 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 10,000 (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 0%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14 OO
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
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CUSIP NO. 983101 60 1 PAGE 4 OF __ PAGES
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NAMES OF REPORTING PERSONS: The Ovitz Family Limited Partnership
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS: 95-4547742
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS* N/A
4
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6 California
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7 0
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 10,000 (see Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9 0
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 10,000 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 10,000 (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 0%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14 PN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
13D
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CUSIP NO. 983101 60 1 PAGE 5 OF __ PAGES
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- ------------------------------------------------------------------------------
NAMES OF REPORTING PERSONS: Michael S. Ovitz
1 S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
2 (a) [_]
(b) [X]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS* N/A
4
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6 United States
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7 0
NUMBER OF
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8 10,000 (See Item 5)
OWNED BY
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9 0
REPORTING
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10 10,000 (see Item 5)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11 10,000 (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 0%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14 IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Item 1. Security and Issuer.
-------------------
The class of equity securities to which this statement relates is the
Class A Common Stock, $0.01 par value per share (the "Shares"), of Wyndham
International, Inc., a Delaware corporation ("Wyndham"). The principal
executive offices of Wyndham are located at 1950 Stemmons Freeway, Suite 6001,
Dallas, Texas 75207.
Item 2. Identity and Background.
-----------------------
(a)-(c), (f). This statement is being filed jointly on behalf of the
following persons (collectively, the "Reporting Persons"): (1) CKE Associates
LLC, a California limited liability company ("CKE"); (2) The Ovitz Family
Limited Partnership, a California Limited Partnership ("OFLP"); (3) The Michael
and Judy Ovitz Revocable Trust, a California Trust ("Ovitz Trust"); (4) Michael
S. Ovitz, a United States citizen.
Neither the present filing nor anything contained herein shall be
construed as an admission that any Reporting Person constitutes a "person" for
any purpose other than Section 13(d) of the Securities Exchange Act of 1934.
The business address of CKE, OFLP, the Ovitz Trust and Ovitz is c/o
Dreyer, Edmonds & Associates, 355 South Grand Avenue, Suite 4150, Los Angeles,
CA 90071.
CKE is principally engaged in the business of investment in
securities. The managing member of CKE is OFLP. OFLP is principally engaged in
the business of investment in securities. The Ovitz Trust is the general
partner of OFLP. The Ovitz Trust, of which Ovitz and Judy L. Ovitz, spouse of
Ovitz at the same business address, are trustees, is a grantor revocable trust
established for estate planning purposes which serves a general partner of OFLP.
Ovitz's principal occupation is private investor.
(d) and (e). None of the Reporting Persons 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).
None of the Reporting Persons 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 it was or
is subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Pursuant to a Securities Purchase Agreement, dated as of February 18,
1999 and amended as of June 28, 1999 (the "Securities Purchase Agreement"), by
and among Wyndham, Patriot American Hospitality, Inc. ("Patriot"), Patriot
American Hospitality Partnership, L.P. ("Patriot OP"), Wyndham International
Operating Partnership, L.P. and certain investors, (the "Original Investors"),
the Original Investors were entitled, subject to compliance with the terms and
conditions set forth therein, to purchase 10,000,000 shares of Series B
Convertible Preferred Stock, $0.01 per share (the "Series B Preferred Stock"),
of Wyndham for aggregate consideration of $1,000,000,000. Certain of the
Original Investors subsequently entered into Assignment and Assumption
Agreements (the "Assignments") with certain other Investors, including CKE and
others who are parties to the Stockholders' Agreement described below
(collectively, the "Co-Investors" and, together with the Original Investors, the
"Investors"), pursuant to which such
<PAGE>
Original Investors assigned to the Co-Investors their right to purchase certain
of the shares of Series B Preferred Stock that such Original Investors were
entitled to purchase under the Securities Purchase Agreement.
Pursuant to the Securities Purchase Agreement and the Assignments, CKE
purchased an aggregate of 10,000 shares of Series B Preferred Stock for an
aggregate cash purchase price of $1,000,000.
CKE obtained funds to make the purchase described herein through
capital contributions from its members. Such contributions were made from
personal funds of Mr. Ovitz.
Item 4. Purpose of Transactions.
-----------------------
The Reporting Persons have purchased the Series B Preferred Stock for
general investment purposes and retain the right to change their investment
intent. Subject to market conditions and other factors, including the
restrictive provisions of the Securities Purchase Agreement and the
Stockholders' Agreement described below, the Reporting Persons may acquire or
dispose of securities of Wyndham from time to time in future open-market,
privately negotiated or other transactions. Such acquisitions could include
purchases pursuant to the Rights Offering (as defined below) or pursuant to the
exercise of preemptive rights as described below. In addition, the Reporting
Persons may maintain various credit facilities and arrangements, including
customary margin arrangements, with banks and other financial institutions in
the ordinary course of business and in connection therewith provide to the
lenders as collateral thereunder the shares of Series B Preferred Stock
purchased by them or other securities of Wyndham held by them.
The Series B Preferred Stock is convertible, at the option of the
holder, into shares of Wyndham Class B Common Stock, par value $0.01 per share
(the "Class B Common Stock"), which in turn is convertible on a one for one
basis into the Shares. For each share of Series B Preferred Stock converted
into Class B Common Stock, the holder is entitled to receive that number of
shares of Class B Common Stock equal to $100.00 divided by the conversion price
of the Series B Preferred Stock, which is currently $8.59 per share, subject to
adjustment, in addition to accrued but unpaid dividends. Each share of the
Series B Preferred Stock may also be converted into one share of Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Preferred
Stock"), of Wyndham and, other than certain permitted transfers under the
Securities Purchase Agreement, is mandatorily converted into one share of Series
A Preferred Stock if it is transferred to unaffiliated transferees. The Series
A Preferred Stock will be convertible into Shares at the same conversion rate
from time to time in effect at which the Series B Preferred Stock is convertible
into shares of Class B Common Stock.
Both the Series A Preferred Stock and the Series B Preferred Stock
will pay quarterly dividends at the rate per annum of 9.75% of the stated amount
thereof, with a portion paid in cash and a portion paid in additional shares of
Series A Preferred Stock or Series B Preferred Stock, respectively. The Series
A Preferred Stock will vote on an as converted basis with the Shares on matters
submitted to the holders of the Shares and the Series B Preferred Stock will
vote as a separate class on certain specified matters, including specified
"change of control" events occurring prior to June 30, 2005. The terms of the
Series A Preferred Stock are otherwise identical to the terms of the Series B
Preferred Stock, except that the Series A Preferred Stock will not have voting
rights, except as required by law or as necessary to permit its listing.
Under the terms of the Securities Purchase Agreement and the
Certificate of Designation for the Series B Preferred Stock (the "Certificate of
Designation"), during the 170-day
<PAGE>
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 the June 30,
2004, so long as the Investors collectively own more than 15% of the fully
diluted Wyndham common stock, in the event that Wyndham proposes to sell Wyndham
common stock or securities convertible into Wyndham common stock (other than in
the Rights Offering or during the six month period following June 30, 1999),
each of the Investors will have the right to purchase a portion of the
securities proposed to be sold equal to its percentage ownership of Wyndham's
outstanding securities. To the extent that one or more of the Investors does not
exercise its purchase rights in full, the unexercised portion of the Investor's
purchase rights will be allocated pro rata to the other Investors.
The Securities Purchase Agreement also provides that, during the six
year period following June 30, 1999, the Investors will not (i) acquire any
shares of Wyndham common stock or securities convertible for Wyndham common
stock, unless the securities are acquired (a) directly from Wyndham in a
transaction approved by a majority of the Class A and Class C directors, (b) as
a dividend on the Series B Preferred Stock or upon conversion of the Series B
Preferred Stock, (c) as part of Wyndham's sale of Series A Preferred Stock or
upon conversion of the Series A Preferred Stock, (d) by an affiliate of any
Investor over whom the Investor does not control voting decisions or hold over
50% of the outstanding voting securities, (e) as non-voting preferred stock of
Wyndham, (f) in the ordinary course of the Investor's market-making activities
or as investment adviser or broker-dealer or (g) by an employee, partner or
stockholder of an Investor for his individual account if the individual does not
acquire beneficial ownership of over 100,000 shares of Wyndham common stock; or
(ii) make any public announcement or proposal or solicitation of proxies
concerning any business combination, extraordinary transaction, restructuring or
recapitalization involving Wyndham or any affiliate of Wyndham or propose to
seek representation on the Board or seek to control or influence management, the
Board or policies of Wyndham or an affiliate of Wyndham.
As contemplated by the Securities Purchase Agreement, the Board has
adopted a shareholder rights plan (the "Rights Plan") under which rights
distributed to Wyndham's stockholders will become exercisable in the event a
third party (other than a "Grandfathered Person") acquires beneficial ownership
of at least 10% of the outstanding shares of Wyndham common stock.
<PAGE>
Each Investor will be a "Grandfathered Person" for so long as it complies with
the standstill provisions of the Securities Purchase Agreement described above.
On June 29, 1999, the Investors entered into a Stockholders' Agreement
(the "Stockholders' Agreement"), pursuant to which each of (i) Apollo Management
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 the THL Advisors based on a specified formula. For so
long as the Stockholders' Agreement is in effect, each of the Investors has
agreed to vote its Shares and Series B Preferred Stock in favor of each of the
director nominees of the Lead Stockholders.
The Stockholders' Agreement provides that, for a five year period from
June 29, 1999, no Investor may offer, sell or otherwise dispose of its shares of
Series B Preferred Stock without the consent of each of the Lead Stockholders,
except for (i) transfers to affiliated transferees, (ii) transfers of shares
pursuant to the registration rights, tag along rights or drag along provisions
described below, (iii) bona fide pledges of shares to a bank, financial
institution or other lender and (iv) certain other permitted transfers, subject
in case of certain of these transfers to the transferee agreeing to be bound by
the provisions of the Stockholders' Agreement. The Stockholders' Agreement does
provide, however, for certain "tag-along rights" and "drag-along rights" in
favor of non-transferring stockholders with respect to proposed transfers of
securities.
The Securities Purchase Agreement, the Assignment and the
Stockholders' 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 Shares
outstanding at July 9, 1999, based on information provided by Wyndham, assuming
conversion of the Series B Preferred Stock (the "Outstanding Shares")). Each of
the Reporting Persons expressly disclaims beneficial ownership of those
Investors' Shares held by any other members of such group or of Shares held
individually by certain directors or executive officers of certain of the
Investors.
CKE has obtained direct beneficial ownership of 10,000 Shares pursuant
to the Securities Purchase Agreement and the Assignment, representing less than
one-tenth of one percent of the Outstanding Shares. CKE has shared voting and
shared dispositive power with respect to such Shares.
Each of (i) OFLP, as the managing member of CKE, (ii) the Ovitz Trust,
as general partner of OFLP, and (iii) Ovitz, as trustee of the Ovitz Trust, may
be deemed to share voting and dispositive power with respect to the 10,000
Shares beneficially owned by CKE.
<PAGE>
All of the foregoing information as to number of Shares and percentage
of Outstanding Shares beneficially owned is set forth without giving effect to
the accrual of dividends payable in additional shares of Series B Preferred
Stock. In addition, as discussed above, the numbers of Shares listed above are
each subject to reduction of up to 30% if redeemed by Wyndham with the proceeds
of the Rights Offering, depending upon the participation of Wyndham's
stockholders in the Rights Offering.
Neither the filing of this Schedule 13D nor any of its contents shall
be deemed to constitute an admission that a Reporting Person is the beneficial
owner of any of the Shares other than those which such Reporting Person has
acquired pursuant to the Securities Purchase Agreement or the Assignment.
(c) The responses to Items 3 and 4 of this Schedule 13D are
incorporated herein by reference.
(d) No person other than the Reporting Persons, the limited partners
of OFLP, the Ovitz Trust as a member of CKE, and Judy L. Ovitz as trustee or the
beneficiaries of the Ovitz Trust is known to the Reporting Persons to have the
right to receive or the power to direct the receipt of dividends from, or the
proceeds from the sale of, Shares owned by such Reporting Person.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
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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 1, 1999 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,
<PAGE>
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:/*/ Assignment and Assumption Agreement dated as of June
22, 1999 by and among [Apollo Real Estate Investment
Fund III, L.P. and Apollo Investment Fund IV, L.P.], as
Assignors, and CKE Associates LLC, as Assignee
* Filed herewith.
<PAGE>
SIGNATURES
After reasonable inquiry and to the best knowledge and belief of the
undersigned, each of the undersigned certifies that the information set forth in
this Statement with respect to it is true, complete and correct.
CKE ASSOCIATES, LLC
THE OVITZ FAMILY LIMITED PARTNERSHIP
THE MICHAEL AND JUDY OVITZ
REVOCABLE TRUST
MICHAEL S. OVITZ
By: Michael S. Ovitz, on his own behalf, as Chief
Executive Officer of CKE Associates, LLC, and
as trustee of the Michael and Judy Ovitz
Revocable Trust, the general partner of the
Ovitz Family Limited Partnership
By: /s/ Michael S. Ovitz
----------------------------------------
Michael S. Ovitz
<PAGE>
Exhibit 1
JOINT FILING AGREEMENT
This Agreement is made and entered into as of July 10, 1999 by and
among each of the undersigned.
In accordance with Rule 13d-1(f) of the Securities Exchange Act of
1934, as amended, each of the parties hereto agrees with the other parties that
the statement of Schedule 13D pertaining to certain securities of Wyndham
International, Inc. to which this agreement is an exhibit, is filed by and on
behalf of each such party and that any amendment thereto will be filed on behalf
of each such party.
CKE ASSOCIATES, LLC
THE OVITZ FAMILY LIMITED PARTNERSHIP
THE MICHAEL AND JUDY OVITZ
REVOCABLE TRUST
MICHAEL S. OVITZ
By: Michael S. Ovitz, on his own behalf, as
Chief Executive Officer of CKE Associates,
LLC, and as trustee of the Michael and
Judy Ovitz Revocable Trust, the general
partner of the Ovitz Family Limited
Partnership
By: /s/ Michael S. Ovitz
----------------------------------
Michael S. Ovitz
<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
<PAGE>
Purchase Shares") of the 1,500,000 Shares to be purchased by Beacon
pursuant to Section 1.1, for a purchase price of $100.00 per Share.
Beacon, in its sole discretion, may fund up to $45 million (but only
to the extent that the same, less accrued interest and exit fees, has
been advanced by Beacon on or prior to July 1, 1999) of the Purchase
Price of the Delayed Purchase Shares through transfer of all or part
of Beacon's loan receivable, plus accrued interest and exit fees, from
PAH Realty Company, LLC which is secured by a mortgage on the
Batterymarch hotel, Boston, Massachusetts (the "Batterymarch Mortgage
Loan")."
(b) Section 2.1 of the Securities Purchase Agreement is hereby amended by
adding the following sentence at the end of Section 2.1:
"Notwithstanding anything contained in this Agreement to the contrary,
for purposes of all matters in this Agreement relating to the purchase
and sale of the Delayed Purchase Shares, including, without limitation
the satisfaction of the conditions precedent contained in Article V of
this Agreement, the term "Closing" shall mean the closing of the
purchase and sale of the Delayed Purchase Shares, and the term
"Closing Date" shall mean July 1, 1999.
3. Unaccredited Investors as Permitted Assignees. Section 4.1(b) of the
---------------------------------------------
Securities Purchase Agreement is amended by deleting the last sentence of
Section 4.1(b) and replacing it with the following"
"Each Investor, other than three of the Permitted Assignees of Thomas
H. Lee Equity Fund IV, L.P., Thomas H. Lee Foreign Fund IV, L.P.,
Thomas H. Lee Charitable Investment L.P., and THL-CCI Limited
Partnership qualifies as an "accredited investor" as such term is
defined in Section 2(15) of the Securities Act and Regulation D
promulgated thereunder."
4. Definition of "Covered Anatole Termination". Section 10.2(a) of the
-------------------------------------------
Securities Purchase Agreement is amended so that the defined term "Covered
Anatole Termination" shall mean any termination of the Anatole Management
Contract pursuant to Section 12.2(2) of the Anatole Management Contract, as
amended February 16, 1999. The Companies and the Operating Partnerships agree
to make no further amendments to Section 12.2(2) of the Anatole Management
Contract without the Investors' prior written consent.
5. Restructuring Plan. The first sentence of paragraph number 6 of
------------------
Exhibit A -Restructuring Plan, to the Securities Purchase Agreement is hereby
amended to change the reference in such sentence from "voting stock" to "non-
voting stock."
6. Form of Bylaws. Exhibit C to the Securities Purchase Agreement, Form
--------------
of Amended and Restated Bylaws of Wyndham, is hereby deleted and replaced in its
entirety with the attached Exhibit C.
<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]
<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:
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL, INC.
By:
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
PATRIOT AMERICAN HOSPITALITY
PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By:
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General
Partner
<PAGE>
By:
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
[Remainder of page intentionally left blank]
ORIGINAL INVESTORS:
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc., its General Partner
By:__________________________________________
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:___________________________________________
Name:
Title:
Address: 1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
<PAGE>
By: THL Equity Advisors IV, LLC
By:
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
Name:
Title:
Address: 75 State Street
<PAGE>
Suite 2600
Boston, Massachusetts 02109
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By:
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By:
Name:
Title:
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
<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 Partner ship, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the "Original
Investors") and (ii) Assignment and Assumption Agreements by and among the
Company, Patriot and the Stockholders, the Stockholders will purchase shares of
Series B Convertible Preferred Stock (the "Shares") of the Company; and
WHEREAS, the parties hereto deem it in their best interests to enter into
this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale, assignment,
transfer, encumbrance or other disposition of their securities of the Company
and to provide for certain rights and obligations with respect thereto as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" means, as to any Person, (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of such
Person or of any Person which directly or indirectly controls, is controlled by,
or is under common control with such Person, and (c) any individual who is a
member of the immediate family of any Person described in clause (a) or clause
(b) above. For purposes of this definition, "control" of a Person shall mean
the power, direct or indirect, (i) to vote or direct the voting of 5% or more of
the Voting Stock of such Person or (ii) to direct or cause the direction of the
<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
<PAGE>
or distribution and (y) the Lead Stockholders shall have approved in advance of
the earlier of its execution ordistribution any provision of the Second Beacon
Voting Trust or any amendment to the Voting Trust Agreement for the First Beacon
Voting Trust or the Second Beacon Voting Trust that alters or is otherwise
inconsistent with the definition of "Permitted Voting Trust Transfer" contained
in this Agreement or any other provision affecting those matters addressed in
this Agreement.
"Board of Directors" means the Board of Directors of the Company as from
time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date hereof and
as hereafter further amended.
"Capital Stock" means and includes (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock of any Person, including, without limitation, shares of
preferred or preference stock, (ii) all partnership interests (whether general
or limited) in any Person which is a partnership, (iii) all membership interests
or limited liability company interests in any limited liability company and (iv)
all equity or ownership interests in any Person of any other type.
"Certificate of Incorporation" means the Certificate of Incorporation of
the Company as in effect on the date hereof and as hereafter amended, modified,
supplemented or restated.
"Class A Common Stock" means the Class A common stock, par value $0.01 per
share, of the Company.
"Class B Common Stock" means the Class B common stock, par value $0.01 per
share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common Stock or,
if the Company's common stock ceases to be so designated, the common stock, par
value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation, and
any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and any
other securities convertible into, exercisable for or exchangeable with Common
Stock or Preferred Stock and other equity security issued by the Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P. Voting
Trust.
<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
<PAGE>
shares of Series A Preferred Stock; (iii) any shares of Series A Preferred Stock
to be received in connection with such termination by the Beacon Stockholder or
by any Beacon Affiliate shall remain subject to the transfer, conversion and
other restrictions of this Agreement and the Beacon Stockholder and any such
Beacon Affiliate shall execute any agreement required under Section 3.3 of this
Agreement to evidence the foregoing; (iv) each of the transferees of such Shares
shall have acknowledged in form and 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.
<PAGE>
"Restated Certificate of Incorporation" means the Restated Certificate of
Incorporation of the Company, as proposed to be filed with the Secretary of
State of the State of Delaware on the date of the Closing under the Securities
Purchase Agreement.
"Required Investor Director Percentage" means 1.0 divided by the total
number of Class B directors of the Company that may be elected pursuant to
Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L.P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
"Securities Act" means, as of any date, the Securities Act of 1933, as
amended, or any similar Federal statute then in effect and superseding such act,
and any reference to a particular section thereof shall include a reference to
the comparable section, if any, of any such similar Federal statute, and the
rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred Stock,
par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred Stock,
par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
-------- -------
references in this 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).
<PAGE>
Article 2. Board of Directors
Section 2.1. Board of Directors. 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
Stockholders of its desire to remove, with or without cause, any director of
the Company previously designated by it, each Stockholder shall vote all of the
shares of Voting Stock owned or held by such Stockholder and take all other
necessary actions to cause the removal of any director designated by such Lead
Stockholder pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead Stockholder shall
for any reason cease to serve as a member of the Board of Directors during his
term of office, the resulting vacancy on the Board of Directors will be filled
by a representative designated by such Lead Stockholder.
Article 3. Restrictions on Transfer
Section 3.1. Restrictions on Transfer.
------------------------
(a) Each Stockholder agrees that for a period of five years following the
date of this Agreement, such Stockholder will not, directly or indirectly,
offer, sell, transfer, assign or otherwise dispose of (or make any exchange,
gift,
<PAGE>
assignment or pledge of) (collectively, for purposes of Articles 3 and 4
only, a "transfer") any of its Shares, any shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, or options, warrants or rights to
subscribe for or purchase Shares, Preferred Stock or Common Stock that may be
issued hereafter to such Stockholder, except as provided in this Article 3. In
addition to the other restrictions contained in this Article 3, each Stockholder
agrees that it will not, directly or indirectly, transfer any of its Shares or
any shares of Common Stock or Preferred Stock issuable upon conversion of Shares
except as permitted under the Securities Act and other applicable securities
laws.
(b) Any attempt by any Stockholder to transfer any Shares and any Common
Stock or Preferred Stock issuable upon conversion of the Shares not in
compliance with this Agreement shall be null and void. Without limiting the
foregoing, it is expressly understood and agreed that any transfer of Shares by
the Beacon Voting Trust that is not the Permitted Beacon Voting Trust Transfer
or a transfer otherwise expressly permitted under this Agreement shall be null
and void and not be recorded on the transfer books of the Company.
Section 3.2. Exceptions to Restrictions. The provisions of Section 3.1
--------------------------
shall not apply to any of the following transfers:
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its respective
Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock issuable
upon conversion of such Shares, in accordance with Article 4 or 5 hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, to a bank, financial institution or
other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third Party
Transferee") execute (or, in the case of clause (d) above, that the pledging
Stockholder use its reasonable efforts to cause the pledgee referred to therein
to execute prior to any foreclosure of the shares so pledged) the agreement
referred to in Section 3.3 hereof. The provisions of this Agree ment shall be
applied to the Shares, including the shares of Common Stock or Preferred Stock
<PAGE>
issuable upon conversion of Shares, acquired by any Third Party Transferee of a
Stockholder in the same manner and to the same extent as such provisions were
applicable to such Shares, or Common Stock or Preferred Stock issuable upon
conversion of Shares, in the hands of such Stockholder. Any reference in this
Agreement to the Stockholders shall be deemed to include each Stockholder and
its respective Third Party Transferees.
No transfer of any Shares, or shares of Common Stock or Preferred Stock
issuable upon conversion of Shares, to a Third Party Transferee shall be
effective unless such transfer is made (i) pursuant to an effective registration
statement under the Securities Act and is qualified under applicable state
securities or blue sky laws or (ii) without registration under the Securities
Act and qualification under applicable state securities or blue sky laws, as a
result of the availability of an exemption from registration and qualification
under such laws, and such Stockholder shall have furnished to the Lead
Stockholders a certificate to that effect; provided, however, that no such
-------- -------
certificate or opinion of counsel shall be required in connection with a
transfer of shares of Common Stock pursuant to Sections 4.1 or 4.2 hereof.
Section 3.3 Binding Effect on Transferees. The obligations of a party
-----------------------------
hereto shall be binding upon any transferee to whom Shares or Common Stock or
Preferred Stock issuable upon conversion of such Shares are transferred by such
party, whether or not such transfer is permitted under the terms of this
Agreement; provided, that the foregoing shall not apply to (a) transferees
--------
(other than the Beacon Affiliates) pursuant to the Permitted Beacon Voting Trust
Transfer, (b) transferees pursuant to transfers 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
<PAGE>
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 conversion of shares of
Series A Preferred Stock received thereunder (other than by a Beacon Affiliate).
Article 4. Tag-Along Rights; Drag-Along Rights
Section 4.1. Tag-Along Rights.
----------------
(a) Notwithstanding anything in this Agreement to the contrary, except in
the case of (i) transfers by the Stockholders to a Third Party Transferee
referred to in Section 3.2(b), (c), (d) and (e) hereof, (ii) transactions where
rights are exercised pursuant to Section 4.2 hereof and (iii) sales pursuant to
Article 5 hereof or in connection with a sale pursuant to Rule 144 under the
Securities Act of 1933, each Stockholder shall refrain from effecting any
transfer of Shares, Series A Preferred Stock or Class B Common Stock unless,
prior to the consummation thereof, the other Stockholders shall have been
afforded the opportunity to join in such transfer on a pro rata basis, as
--- ----
provided in this Section 4.1 (each such Stockholder, a "Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the Stockholder
proposing a transfer shall cause the person or group that proposes to acquire
such shares (the "Proposed Purchaser") to offer in writing (the "Tag-Along
Offer") to purchase Shares, Series A Preferred Stock or Class B Common Stock
owned by the Tag-Along Person, such that the number of Shares, Series A
Preferred Stock or Class B Common Stock so offered to be purchased from the Tag-
Along Person shall be equal to the product obtained by multiplying the aggregate
number of Shares, Series A Preferred Stock or Class B Common Stock proposed to
be purchased by the Proposed Purchaser by such Tag-Along Person's Pro Rata
Portion. If the Purchase Offer is accepted by any Tag-Along Person, then the
number of Shares, Series A Preferred Stock or Class B Common Stock to be sold to
the Proposed Purchaser by the Stockholder proposing the transfer, shall be
reduced by the aggregate number of Shares, Series A Preferred Stock or Class B
Common
<PAGE>
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 Pur chase Offer during which to accept such Purchase
Offer, and the closing of such purchase shall occur within 30 days after such
acceptance or at such other time as the Tag-Along Person and the Proposed
Purchaser may agree.
Section 4.2. Drag-Along Rights.
-----------------
(a) If both of the Lead Stockholders propose a transfer in connection with
a sale or exchange, whether directly or pursuant to a merger, consolidation or
otherwise (a "Drag-Along Sale"), the Lead Stockholders may require all other
Stockholders to sell all Shares proposed to be sold therein ("Drag-Along
Rights") then held by every 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 immediately following the closing of the
transactions contemplated by the Securities Purchase Agreement, Stockholders
collectively holding more than 50% of the voting power represented by the
outstanding Shares and shares of Class B Common Stock (the "Majority
Stockholders") shall have the ability to exercise the Drag-Along Rights
described in this Section 4.2.
(b) The Lead Stockholders or the Majority Stockholders, as applicable,
shall provide written notice of such Drag-Along Sale to the other Stockholders
(a "Drag-Along Notice") not later than the 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
<PAGE>
Price(s). Not later than the 10th day following the date of the Drag-Along
Notice (the "Drag-Along Notice Period"), each of the Stockholders shall deliver
to a representative of Lead Stockholders or the Majority Stockholders, as
applicable, designated in the Drag-Along Notice certificates representing all
the Shares and shares of Class B Common Stock beneficially owned and held by
such Stockholder, duly endorsed, together with all other documents required to
be executed in connection with such Drag-Along Sale, or if such delivery is not
permitted by applicable law, an unconditional agreement to deliver such shares
pursuant to this Section 4.2 at the closing for such Drag-Along Sale against
delivery to such Stockholder of the consideration therefor.
(c) The Lead Stockholders or the Majority Stockholders, as applicable,
shall have a period of 90 days from the date of receipt of the Drag-Along Notice
to consummate the Drag-Along Sale on the terms and conditions set forth in such
Drag-Along Sale Notice. If the Drag-Along Sale shall not have been consummated
during such period, the Lead Stockholders or the Majority Stockholders, as
applicable, shall return to each of the Stockholders all certificates or other
evidence of title and ownership representing shares that such Stockholders
delivered for transfer pursuant hereto, together with any documents in the
possession of the Lead Stockholders or the Majority Stockholders, as applicable,
executed by the other Stockholders in connection with such proposed transfer,
and all the restrictions on transfer contained in this Agreement or otherwise
applicable at such time with respect to shares owned by the Stockholders shall
again be in effect.
(d) Concurrently with the consummation of the transfer of shares pursuant
to this Section 4.2, the Lead Stockholders or the Majority Stockholders, as
applicable, shall give notice thereof to all Stockholders, shall remit to each
of the Stockholders who have surrendered their certificates or other evidence of
title and ownership the total consideration (by bank or certified check) for
the shares transferred pursuant hereto and shall furnish such other evidence of
the completion and time of completion of such transfer and the terms thereof as
may be reasonably requested by such Stockholders.
Article 5. Registration Rights
Section 5.1. Registration Rights.
-------------------
(a) Each of the Stockholders shall be entitled to the benefits of, and
shall be bound by the obligations of, the Registration Rights Agreement with
respect to any
<PAGE>
Registrable Securities held by such Stockholder as if the Stockholder were a
party to the Registration Rights Agreement; provided, however, that (i) any
-------- -------
request for a Required Registration (as such term is defined in the Registration
Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights
Agreement made on or prior to the third anniversary of the date of this
Agreement shall only be made by or with the consent of both of the Lead
Stockholders, (ii) any request for a Required Registration pursuant to Section
2.1(a) of the Registration Rights Agreement made during the period following the
third anniversary of the date of this Agreement through the fifth anniversary of
the date of this Agreement shall only be made by the Apollo Stockholder, the Lee
Stockholder or the Beacon Stockholder and (iii) any request for a Shelf (as such
term is defined in the Registration Rights Agreement) pursuant to Section 2.1(a)
of the Registration Rights Agreement made on or prior to the fifth anniversary
of the date of this Agreement shall only be made by or with the consent of both
of the Lead Stockholders. Notwithstanding the foregoing, each of the
Stockholders shall be entitled to exercise its rights to include its Registrable
Securities in a registration effected by the Company pursuant to Section 2.1(b)
of the Registration Rights Agreement if such registration is a Required
Registration made in accordance with the immediately preceding sentence or if
either Lead Stockholder is including Registrable Securities in such
registration. Each of the Lead Stockholders agrees for the benefit of the other
Lead Stockholder that it will not, without the approval of the other Lead
Stockholder, include its Registrable Securities in a registration effected by
the Company pursuant to Section 2.1(b) of the Registration Rights Agreement
during the three year period following the date of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the Registration
Rights Agreement to the contrary, in the event that the Permitted Beacon Voting
Trust Transfer occurs, none of the shares of Preferred Stock or Common Stock
that are received by the beneficiaries of the Beacon Voting Trust in connection
therewith or are issued or issuable upon conversion of such shares or shares
received upon such conversion shall be Registrable Securities, other than those
shares that are held by the Beacon Stockholder or by a Beacon Affiliate and
remain subject to the transfer, conversion and other restrictions of this
Agreement. The Beacon Stockholder, in its capacities as the trustee and initial
beneficiary of the First Beacon Voting Trust and the Second Beacon Voting Trust,
hereby consents and agrees to be bound by the provisions of this Section 5.1(b)
on behalf of itself and all future beneficiaries of the Beacon Voting Trust and
acknowledges and agrees that it has the sole responsibility to notify all such
beneficiaries or transferees of Shares owned by the Beacon Voting Trust of the
terms of this Section 5.1(b) and the fact that they are bound thereby.
Article 6. Miscellaneous
Section 6.1. Further Actions; Cooperation. Each of the Stockholders agrees
----------------------------
to use its reasonable efforts to take, or cause to be taken, all actions and to
do, or cause to be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable in connection with the
transactions contemplated by this Agreement.
<PAGE>
Without limiting the generality of the foregoing, each of the Stockholders (i)
acknowledges that the Stockholders will prepare and file with the Securities
and Exchange Commission filings under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"), including under Section 13(d) of the Exchange Act, relating to their
beneficial ownership of the Securities and (ii) agrees to use its reasonable
efforts to assist and cooperate with the other parties in promptly preparing,
reviewing and executing any such filings under the Exchange Act, including any
amendments thereto.
Section 6.2. Successors and Assigns. Except as otherwise provided herein,
----------------------
all the terms and provisions of this Agreement shall be binding upon, shall
inure to the benefit of and shall be enforceable by the respective successors
and assigns of the parties hereto. No Stockholder may assign any of its rights
hereunder to any Person other than a transferee that has complied in all
respects with the requirements of this Agreement (including, without limitation,
Section 3.4 hereof). If any transferee of any Stockholder shall acquire any
Shares or Common Stock issuable upon conversion of such Shares, in any manner,
whether by operation of law or otherwise, such shares shall be held subject to
all of the terms of this Agreement, and by taking and holding such shares such
Person shall be entitled to receive the benefits of and be conclusively deemed
to have agreed to be bound by and to comply with all of the terms and provisions
of this Agreement.
Section 6.3. Representatives. Each of the Stockholders hereby designates
---------------
and appoints (and each Third Party Transferee of each such Stockholders is
hereby deemed to have so designated and appointed) the Lead Stockholders to
serve as the representatives of each such Stockholder to administer and make
determinations as to matters arising or contemplated by the Securities Purchase
Agreement and related documentation, including without limitation
indemnification obligations, disputes and other rights and obligations. Each of
the Stockholders hereby agrees and acknowledges that the Lead Stockholders shall
be the only persons authorized to take any action so required, authorized or
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
-------------------------------
Agreement may be amended, modified or waived except by an instrument in writing
executed by the Majority Stockholders at the time of such proposed amendment,
modification or waiver; provided, however, that, so long as either of the Lead
-------- -------
Stockholders and their respective Affiliates beneficially own at least 20% of
the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) initially owned by such Stockholders at the closing of the
transactions contemplated by the Securities Purchase Agreement, this Agreement
may not be amended or modified without
<PAGE>
such Lead Stockholder's consent.
Section 6.5. Notices. All notices and other communications provided for
-------
hereunder shall be in writing by hand delivery, telex, telecopier, or any
courier 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.
Section 6.6. Entire Agreement: Governing Law.
-------------------------------
(a) This Agreement and the other writings referred to herein or delivered
pursuant hereto which form a part hereof contain the entire agreement among the
parties hereto with respect to the subject transactions contemplated hereby and
supersede all prior oral and written agreements and memoranda and undertakings
among the parties hereto with regard to this subject matter.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE OF LAW
PRINCIPLES THEREOF).
Section 6.7. Injunctive Relief. The Stockholders acknowledge and agree
-----------------
that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any Stockholder from committing any
violations of the provisions of this Agreement.
Section 6.8. Headings. The section and paragraph headings contained in
--------
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the Shares of
----------------------------------------------------------
Common Stock; New Issuances. The provisions of this Agreement shall apply, to
- ---------------------------
the full extent set forth herein with respect to the Shares and Common Stock and
Preferred Stock issuable upon conversion of such Shares and to any and all
equity or debt securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise) which
may be issued in respect of, in exchange for, or in substitution of, such equity
or debt securities and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, reclassifications, recapitalizations,
reorganizations and the like occurring after the date hereof.
<PAGE>
Section 6.10. Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.11. 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.
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
<PAGE>
By:
---------------------------------
Name:
Title:
Address: c/o Apollo Real Estate
Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:
---------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
---------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
---------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
---------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
---------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its
General Partner
By:
---------------------------------
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
<PAGE>
BCP VOTING, INC., as Trustee for the Beacon Capital Partners, L.P. Voting
Trust
By:
---------------------------------
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
<PAGE>
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By:
---------------------------------
Name:
Title:
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
AIF/THL PAH, LLC
By:
---------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
New York, NY 10019
<PAGE>
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, its
General Partner
By:
---------------------------------
Name:
Title:
Address: 380 Madison Avenue
12th Floor
New York, New York 10017
<PAGE>
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P., a
general partner
By: MSPS/DP, Inc., its general partner
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS 1995 Investment Partners, L.P.,
a general partner
By: CMS 1995, Inc., its general partner
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
CMS CO-INVESTMENT
SUBPARTNERSHIP, a Delaware general
partnership
By: CMS Co-Investment Partners, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment, Inc.,
a Delaware corporation
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS 1997 Investment Partners, L.P.,
<PAGE>
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS Co-Investment Partners I-Q, L.P.,
a Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment Associates,
Inc., a Delaware corporation
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS 1997 Investment Partners, L.P.
a Delaware limited partnership
By: CMS 1997, Inc.,
a Delaware corporation
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
<PAGE>
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By:
---------------------------------
Name:
Title:
Address: 206 Tetuan Street
San Juan, Puerto Rico 00902
<PAGE>
CKE ASSOCIATES LLC
By:
---------------------------------
Name:
Title:
Address: 9465 Wilshire Boulevard
Suite 519
Beverly Hills, CA 90212
<PAGE>
PW HOTEL I, LLC
By:
---------------------------------
Name:
Title:
Address: 1285 Avenue of the Americas
New York, NY 10019
<PAGE>
THE DARTMOUTH TRUST
By:
---------------------------------
Name:
Title:
Address:
THE BONNYBROOK TRUST
By:
---------------------------------
Name:
Title:
Address:
THE FRANKLIN TRUST
By:
---------------------------------
Name:
Title:
Address:
<PAGE>
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its
General Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:
---------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
<PAGE>
THOMAS H. LEE FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By:
---------------------------------
Name:
Title:
Address: 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
_____________________________________
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
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 (the
"Assignor"), (ii) CKE Associates LLC (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.
(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
<PAGE>
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, the Company Disclosure Letter and the Updated
Company Disclosure Letter and in making its determination to purchase the
Subject Shares and undertake the obligations of an Investor under the Securities
Purchase Agreement has relied solely on the representations and warranties,
covenants and other agreements of the Companies contained therein and not on any
representations, warranties or undertakings by the Assignor or any of the other
Original Investors, (ii) the Assignee currently has, or prior to the Closing
will have, sufficient funds to purchase the Subject Shares as contemplated by
the Securities Purchase Agreement, and (iii) the Assignee's purchase of the
Subject Shares will qualify as a passive investment by the Assignee for purposes
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and accordingly the Assignee is not required to make any filings
under the HSR Act to purchase the Subject Shares.
(d) The Assignee agrees, for the benefit of each of the Original
Investors and any other persons who become Investors under the Securities
Purchase Agreement, (i) to fulfill its obligations under the Securities Purchase
Agreement assumed hereunder, including without limitation those contained in
Article VII, (ii) not to assign without the prior written consent of the
Original Investors any of its rights or obligations under this Assignment and
Assumption and (iii) to be a party to and fulfill its obligations under the
Stockholders' Agreement in the form delivered to the Assignee by the Assignor.
(e) (i) The Assignee agrees, for the benefit of each of the Original
Investors and any other persons who become Investors under the Securities
Purchase Agreement, to pay the purchase price for the Subject Shares into escrow
(the "Escrow Amount") no later than June 22, 1999, which Escrow Amount shall be
held in an escrow account, with Apollo Management IV, L.P. acting as escrow
agent (the "Escrow Agent"), pending the Closing. The Escrow Agent shall be
permitted to invest the Escrow Amount in the Chase Vista Premiere U.S.
Government Money Fund or similar investments until the Escrow Amount is paid to
the Company as purchase price for the Subject Shares upon the Closing; provided,
--------
however, that if the Closing does not occur by July 15, 1999, the Escrow Agent
- -------
shall release to the Assignee the amount of the Escrow Amount which it deposited
with the Escrow Agent. Any interest or other income received on the 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.
<PAGE>
(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 reason able attorneys' fees and disbursements, arising out
of and in connection with its acting as escrow agent under this Assignment.
Without limiting the foregoing, the Escrow Agent shall in no event be liable in
connection with its investment or reinvestment of any cash held by it hereunder
in good faith, in accordance with the terms hereof, including without limitation
any liability for any delays (not resulting from its gross negligence or willful
misconduct) in the investment or reinvestment of the Escrow Amount or any loss
of interest incident to any such delays.
(iii) The Assignee shall pay or reimburse the Escrow Agent upon
request for any taxes relating to income derived from the Escrow Amount and
shall indemnify and hold harmless the Escrow Agent from any amounts that it is
obligated to pay in the way of such taxes. Any payments of income from this
Escrow Account shall be subject to withholding regulations then in force with
respect to United States taxes.
(f) The Assignee agrees that Thomas H. Lee Equity Fund IV, L.P. and
Apollo Management IV, L.P. (collectively, the "Lead Investors") shall have the
sole authority to administer and make determinations as to matters arising under
the Securities Purchase Agreement and related documentation and that any
determination made by the Lead Investors under the Securities Purchase Agreement
and any related documentation shall be binding upon the Assignee as if the
Assignee had consented thereto, including without limitation any determination
as to whether closing conditions have been satisfied or waived, any amendments
or waivers of provisions of the Securities Purchase Agreement and any
determination or exercise of remedies by the Investors under the Securities
Purchase Agreement.
(g) The Companies acknowledge their consent to the assignment and
assumption effected hereby and agree that (i) the Assignor shall no longer be
obligated to purchase the Subject Shares under the Securities Purchase Agreement
and (ii) the Assignee shall be entitled to rely on the Companies'
representations and warranties, covenants and other agreements under the
Securities Purchase Agreement as if the Assignee were an Investor originally
named in the Securities Purchase Agreement.
(h) The Original Investors other than the Assignor hereby consent to
this Assignment and Assumption and acknowledge that the assignment contemplated
hereby will limit their collective right to make assignments under the
Securities ties 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
<PAGE>
Assignment and Assumption and the Securities Purchase Agreement, it shall only
be entitled to receive the Subject Shares from the Companies and shall not,
under any circumstances, be entitled to receive any fees or expenses pursuant to
the Securities Purchase Agreement or otherwise from the Companies, the Original
Investors or any other persons that may become Investors under the Securities
Purchase Agreement. The Companies acknowledge that this Assignment and
Assumption shall in no way affect the Companies' obligation to pay the fees
payable under the Securities Purchase Agreement to the Original Investors as if
the Original Investors had not assigned any portion of the right and obligation
to acquire the Shares.
2. Acknowledgment as to Advisors. (a) The Assignee acknowledges
-----------------------------
that Skadden, Arps, Slate, Meagher & Flom LLP is representing the Original
Investors as to certain matters in connection with the transactions contemplated
by the Securities Purchase Agreement and is not acting as counsel to the
Assignee in connection therewith.
(b) The Assignee acknowledges that PricewaterhouseCoopers LLP is
advising the Original Investors as to certain matters in connection with the
transactions contemplated by the Securities Purchase Agreement and is not acting
as advisor to the Assignee in connection therewith.
3. Binding Effect. This Assignment and Assumption shall inure to
--------------
the benefit of and be binding on the Assignee, the Assignor, the Companies, the
Original Investors and their respective permitted successors and assigns,
effective immediately upon delivery.
4. Governing Law. This Assignment and Assumption shall be governed
-------------
and construed in accordance with the laws of the State of New York, without
regard to any applicable principles of conflicts of law.
<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:_______________________________
Name:
Title:
THOMAS H. LEE FOREIGN FUND IV,
L.P.
By: THL Equity Advisors IV, LLC
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
Name:
Title:
<PAGE>
ASSIGNEE:
CKE ASSOCIATES LLC
Federal Tax ID No.:_______________
By:___________________________
Name:
Title:
<PAGE>
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By:___________________________
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By:___________________________
Name:
Title:
<PAGE>
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: ________________________
Name:
Title:
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By:_____________________
Name:
Title:
<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:_______________________________________
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:_______________________________________
Name:
Title:
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: __________________________
Name:
Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: __________________________
Name:
Title:
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: __________________________
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: __________________________
Name:
Title:
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: ______________________
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: ______________________
Name:
Title:
