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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
Wyndham International, Inc.
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(Name of Issuer)
Class A Common Stock, $0.01 par value
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(Title of Class of Securities)
983101106
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(CUSIP Number)
Harvey M. Eisenberg, Esq.
O'Sullivan Graev & Karabell, LLP
30 Rockefeller Plaza - 41st Floor
New York, New York 10112
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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 (Sections)240.13d-1(e),
240.13d-1(f) or 240.13d-1(g), check the following box. [_]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See
(Sections)240.13d-7 for other parties to whom copies of this statement
are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class
of securities, and for any subsequent amendment containing information
which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
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1. Names of Reporting Persons.
I.R.S. Identification Nos. of above persons (entities only).
Chase Equity Associates, L.P.
13-3371826
2. Check the Appropriate Box if a Member of a Group (See Instructions)
(a) / / (b) /X/
3. SEC Use Only
4. Source of Funds (See Instructions) WC
5. Check if Disclosure of Legal Proceedings Is Required Pursuant to
Items 2(d) or 2(e) / /
6. Citizenship or Place of Organization California
Number of 7. Sole Voting Power 2,910,360
Shares
Beneficially 8. Shared Voting Power Not applicable
Owned by Each
Reporting Person 9. Sole Dispositive Power 2,910,360
With
10. Shared Dispositive Power Not applicable
11. Aggregate Amount Beneficially Owned by Each Reporting Person
2,910,360
12. Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions)
13. Percent of Class Represented by Amount in Row (11) 1%
14. Type of Reporting Person (See Instructions
PN
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Item 1. Security and Issuer.
This statement relates to the Class A Common Stock, par value
$0.01 per share (the "Common Stock"), of Wyndham International, Inc., a
Delaware corporation (the "Issuer" or "Wyndham"). The Issuer's principal
executive offices are located at 1950 Stemmans Freeway, Suite 6001, Dallas,
Texas 75207.
Item 2. Identity and Background.
This statement is being filed by Chase Equity Associates,
L.P., a California limited partnership (hereinafter referred to as "CEA"),
whose principal office is located at 380 Madison Avenue, 12th Floor, New York,
New York 10017.
CEA is engaged in the venture capital and leveraged buyout
business. The general partner of CEA is Chase Capital Partners, a New York
general partnership ("CCP"), which is also engaged in the venture capital and
leveraged buyout business, and whose principal office is located at the same
address as CEA.
Set forth below are the names of each general partner of CCP
who is a natural person. Each such general partner is a U.S. citizen, whose
principal occupation is general partner of CCP and whose business address
(except for Mr. Soghikian) is c/o Chase Capital Partners, 380 Madison Avenue,
12th Floor, New York, New York 10017.
John R. Baron
Christopher C. Behrens
Mitchell J. Blutt, M.D.
Arnold L. Chavkin
Michael R. Hannon
Donald J. Hofmann
Stephen P. Murray
John M. B. O'Connor
Brian J. Richmand
Shahan D. Soghikian
Jonas Steinman
Jeffrey C. Walker
Damion E. Wicker, M.D.
Mr. Soghikian's address is c/o Chase Capital Partners, 50 California Street,
Suite 2940, San Francisco, CA 94111.
Jeffrey C. Walker is the managing general partner of CCP. The
remaining general partners of CCP are Chase Capital Corporation, a New York
corporation ("Chase Capital"), CCP Principals, L.P., a Delaware limited
partnership ("Principals") and CCP European Principals, L.P., a Delaware
limited partnership ("European Principals"), each of whose principal office is
located at 380 Madison Avenue, 12th Floor, New York, New York 10017. Chase
Capital is a wholly-owned subsidiary of The Chase Manhattan Corporation. The
general partners of each of Principals and European Principals is Chase
Capital. Chase Capital, Principals and European Principals are each engaged in
the venture capital and leveraged buyout business. Set forth in Schedule A
hereto and incorporated herein by reference are the names, business addresses
and principal occupations or employments of each executive officer and director
of Chase Capital, each of whom is a U.S. citizen.
The Chase Manhattan Corporation ("Chase") is a Delaware
corporation engaged (primarily through subsidiaries) in the commercial banking
business with its principal office located at 270 Park Avenue, New York, New
York 10017. Set forth in Schedule B hereto and incorporated herein by reference
are the names,
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business addresses, principal occupations and employments of each executive
officer and director of Chase, each of whom is a U.S. citizen.
To CEA's knowledge, the response to Items 2(d) and (e) of
Schedule 13D is negative with respect to CEA and all persons to whom
information is required hereunder by virtue of CEA's response to Item 2.
Insofar as the requirements of Items 3-6 inclusive of this
Schedule 13D Statement require that, in addition to CEA, the information called
for therein should be given with respect to each of the persons listed in this
Item 2, including CCP, CCP's individual general partners, Chase Capital, Chase
Capital's executive officers and directors, Principals, and Principals'
controlling partner, European Principals and European Principals' controlling
partner, Chase and Chase's executive officers and directors, the information
provided in Items 3-6 with respect to CEA should also be considered fully
responsive with respect to the aforementioned persons who have no separate
interests in the Issuer's Common Stock which is required to be reported
thereunder. Although the definition of "beneficial ownership" in Rule 13d-3
under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"),
might also be deemed to constitute these persons beneficial owners of the
Issuer's Common Stock acquired by CEA, neither the filing of this statement nor
any of its contents shall be deemed an admission that any of such persons is a
beneficial owner of the Issuer's Common Stock acquired by CEA or a member of a
group together with CEA either for the purpose of Schedule 13D of the Exchange
Act or for any other purpose with respect to the Issuer's Common Stock.
Item 3. Source and Amount of Funds or Other Consideration.
Transactions Involving the Issuer
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,
including Apollo Investment IV (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 CEA and others who are
parties to the Stockholders' Agreement described below (collectively, the
"Co-Investors" and, together with the Original Investors, the "Investors"),
pursuant to which such Original Investors assigned to the Co-Investors their
right to purchase certain of the shares of Series B Preferred Stock that such
Original Investors were entitled to purchase under the Securities Purchase
Agreement.
Pursuant to that certain Assignment and Assumption Agreement,
dated as of June 29, 1999, by and among Thomas H. Lee Equity Fund IV, L.P.,
Thomas H. Lee Foreign Fund IV, L.P., Thomas H. Lee Charitable Investment L.P.,
Apollo Real Estate Investment Fund III, L.P. and Apollo Investment Fund, IV,
L.P. (collectively, the "Assignor"), Chase Equity Associates, L.P. (the
"Assignee" or "CEA"), Patriot, Patriot OP, Wyndham International, Inc.
("Wyndham") and Wyndham International Operating Partnership, L.P. and the
Original Investors, the Assignor assigned to CEA its right and obligation to
purchase 250,000 shares of the Series B Preferred Stock for an aggregate cash
purchase price of $25,000,000, and CEA accepted the assignment of and purchased
250,000 shares of Series B Preferred Stock of Wyndham for $25,000,000.
Source of Funds
The funds provided by CEA for the purchase of the Issuer's
Series B Preferred Stock were obtained from CEA's contributed capital, which
includes funds that are held available for such purpose. CEA disclaims that it
is a member of a group with any other persons either for purposes of this
Schedule 13D or for any other purpose related to its beneficial ownership of
the Issuer's securities.
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Item 4. Purpose of Transaction.
The acquisition of the Issuer's equity securities has been
made by CEA for investment purposes. Although CEA has no present intention to
do so, CEA may make additional purchases of the Issuer's Common Stock or Series
B Preferred Stock either in the open market or in privately negotiated
transactions, including transactions with the Issuer, depending on an
evaluation of the Issuer's business prospects and financial condition, the
market for the Common Stock, other available investment opportunities, money
and stock market conditions and other future developments. Depending on these
factors, CEA may decide to sell all or part of its holdings of the Issuer's
Common Stock or Series B Preferred Stock in one or more public or private
transactions. In addition, such transactions could include purchases pursuant
to the Rights Offering (as defined below) or pursuant to the exercise of
preemptive rights as described below. CEA may also 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 it or other securities of the
Issuer held by it.
Except as set forth in this Item 4, CEA has no present plan
or proposal that relates to or would result in any of the actions specified in
clauses (a) through (j) of Item 4 of Schedule 13D. However, CEA reserves the
right to propose or participate in future transactions which may result in one
or more of such actions, including but not limited to, an extraordinary
corporate transaction, such as a merger, reorganization, liquidation or sale,
of a material amount of assets of the Issuer or its subsidiaries, or other
transactions which might have the effect of causing the Issuer's Common Stock
to cease to be listed on the NASDAQ National Market System or causing the
Common Stock to become eligible for termination of registration, under section
12(g) of the Exchange Act.
The Series B Preferred Stock is convertible, at the option of
the holder, into shares of the Issuer's 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 by unpaid dividends. Each
share of the Series B Preferred Stock may also be converted into one share of
the Issuer's Series A Convertible Preferred Stock, $0.01 par value per share
(the "Series A Preferred Stock"), and other than certain permitted transfers
under the Securities Purchase Agreement, is mandatorily converted into one
share of Series A Preferred Stock if it is transferred to unaffiliated
transferees. The Series A Preferred Stock will be convertible into Shares at
the same conversion rate from time to time in effect at which the Series B
Preferred Stock is convertible into shares of Class B Common Stock.
Both the Series A Preferred Stock and the Series B Preferred
Stock will pay quarterly dividends at the rate per annum of 9.75% of the stated
amount thereof, with a portion paid in cash and a portion paid in additional
shares of Series A Preferred Stock or Series B Preferred Stock, respectively.
The Series A Preferred Stock will vote on an as converted basis with the Shares
on matters submitted to the holders of the Shares and the Series B Preferred
Stock will vote as a separate class on certain specified matters, including
specified "change of control" events occurring prior to June 30, 2005. The
terms of the Series A Preferred Stock are otherwise identical to the terms of
the Series B Preferred Stock, except that the Series A Preferred Stock will not
have voting rights, except as required by law or as necessary to permit its
listing.
Under the terms of the Securities Purchase Agreement and the
Certificate of Designation for the Series B Preferred Stock (the "Certificate
of Designation"), during the 170-day period following the closing of the
transactions contemplated by the Securities Purchase Agreement, which occurred
on June 30, 1999, the Issuer 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 the Issuer'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 the
Issuer in excess of a
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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 the Issuer (the "Restated Certificate"), on June 30, 1999, the Issuer's
Board of Directors (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 the
Issuer'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 the Issuer's
common stock, unless the securities are acquired (a) directly from the Issuer
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 the Issuer'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 the Issuer, (f) in the ordinary course of the
Investor's market-making activities or as investment adviser of 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 the
Issuer or any affiliate of the Issuer or propose to seek representation on the
Board or seek to control or influence management, the Board or policies of the
Issuer's 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 the Issuer'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 the Issuer's common
stock. Each Investor will be a "Grandfathered Person" for so long as it
complies with the standstill provisions of the Securities Purchase Agreement
described above.
On June 29, 1999, the Investors entered into a Stockholders'
Agreement (the "Stockholders' Agreement"), pursuant to which each of (i) Apollo
Management 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.
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The Stockholders' Agreement provides that, for a five year
period from June 29, 1999, no Investor may offer, sell or otherwise dispose of
its shares of Series B Preferred Stock without the consent of each of the Lead
Stockholders, except for (i) transfers to affiliated transferees, (ii)
transfers of shares pursuant to the registration rights, tag along rights or
drag along provisions described below, (iii) bona fide pledges of shares to a
bank, financial institution or other lender and (iv) certain other permitted
transfers, subject in case of certain of these transfers to the transferee
agreeing to be bound by the provisions of the Stockholders' Agreement. The
Stockholders' Agreement does provide, however, for certain "tag-along rights"
and "drag-along rights" in favor of non-transferring stockholders with respect
to proposed transfers of securities.
On February 18, 1999, the Original Investors entered into a
Registration Rights Agreement (the "Registration Rights Agreement") with the
Issuer, pursuant to which the Investors have the right to require Wyndham to
register shares of the Issuer preferred stock or shares of the Issuer's common
stock into which the Issuer's preferred stock coverts in one or more
registrations and/or pursuant to a shelf registration statement. The
Stockholders' Agreement provides, however, that (i) any request for a
registration by the Issuer on or prior to the third anniversary of the date of
the Stockholders' Agreement shall only be made by or with the consent of both
Lead Stockholders, (ii) any request for a registration by Wyndham between the
third and fifth anniversaries of the date of the Stockholders' Agreement may
only be made by the Apollo Stockholder, THL Advisors or Beacon Capital Partners,
L.P. and its affiliates and (iii) any request for a shelf registration
statement on or prior to the fifth anniversary of the date of the Stockholders'
Agreement may be made only by or with the consent of the Lead Stockholders.
The Securities Purchase Agreement, the Assignments to which
CEA is a party, the Stockholders' Agreement and the Registration Rights
Agreement described are filed as exhibits to this Schedule 13D and are
incorporated herein by reference. The Certificate of Designation, the Restated
Certificate and the Rights Plan have been filed as exhibits to filings by the
Issuer 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 CEA, the Investors collectively own an
aggregate of 116,414,435 Shares (or 39.2% of the Shares outstanding at July 9,
1999, based on information provided by Wyndham (the "Outstanding Shares"). CEA
expressly disclaims that it is a member of a "group" and the beneficial
ownership of those Investors' Shares held by any other members of such group or
Shares held individually by certain directors or executive officers of certain
of the Investors.
CEA has obtained beneficial ownership of 2,910,360 Shares
Pursuant to the Assignment and Securities Purchase Agreement, representing
approximately 1% of the Issuer's Outstanding Shares. CEA, however, is also
subject to regulation under Regulation Y of the Board of Governors of the
Federal Reserve System and is therefore prohibited from ever owning more than
4.99% of any class of the Issuer's outstanding voting securities.
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 number of Shares listed
above are each subject to reduction of up to 30% if redeemed by the Issuer with
the proceeds of the Rights Offering, depending upon the participation of the
Issuer'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 CEA is a member of a
"group" and/or the beneficial owner of any of the Shares other than those which
such CEA has acquired pursuant to the Securities Purchase Agreement or an
Assignment.
(c) The responses to Items 3 and 4 of this Schedule 13D are
incorporated herein by reference.
(d) Not applicable.
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(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
The responses to Items 3, 4 and 5 of this Schedule 13D and
the Exhibits to this Schedule 13D are incorporated herein by reference.
Except for the agreements described in Items 3 and 4, to the
best knowledge of the Reporting Persons, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the persons named
in Item 2, and any other person, with respect to any securities of the Issuer
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: Securities Purchase Agreement dated as of February 18,
1999 by and among the Issuer, 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 2*: Amendment dated as of June 28, 1999 to Securities
Purchase Agreement dated as of February 18, 1999 by and
among the Issuer, Patriot, Patriot American Hospitality
Partnership, L.P., Wyndham International Operating
Partnership, L.P. and the Investors set forth on the
signature pages thereto.
Exhibit 3*: Stockholders' Agreement dated as of June 29, 1999 by and
among the Stockholders named therein.
Exhibit 4*: Registration Rights Agreement dated as of February 18,
1999 by and among Wyndham and the persons listed on the
signature pages thereto.
Exhibit 5*: Assignment and Assumption Agreement dated as of June 22,
1999 by and among CEA and the other parties thereto.
SCHEDULE A
Item 2 information for executive officers and directors of Chase Capital
Corporation.
SCHEDULE B
Item 2 information for executive officers and directors of The Chase Manhattan
Corporation.
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* Filed herewith.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, Its General Partner
By: /s/ Jeffrey C. Walker
--------------------------------
Name: Jeffrey C. Walker
Title: Managing General Partner
July 12, 1999
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Date
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SCHEDULE A
CHASE CAPITAL CORPORATION
Executive Officers
Chairman & Chief Executive Officer William B. Harrison, Jr.*
President Jeffrey C. Walker**
Executive Vice President Mitchell J. Blutt, M.D.**
Vice President & Secretary Gregory Meridith*
Vice President & Treasurer Elisa R. Stein **
Assistant Secretary Robert C. Carroll*
Assistant Secretary Anthony J. Horan
Assistant Secretary Denise G. Connors
Directors
William B. Harrison, Jr.*
Jeffrey C. Walker**
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* Principal occupation is employee and/or officer of Chase. Business address
is c/o The Chase Manhattan Corporation, 270 Park Avenue, New York, New
York 10017.
** Principal occupation is employee of Chase and/or general partner of Chase
Capital Partners. Business address is c/o Chase Capital Partners, 380
Madison Avenue, 12th Floor, New York, NY 10017.
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SCHEDULE B
THE CHASE MANHATTAN CORPORATION
Executive Officers*
Walter V. Shipley, Chairman of the Board
William B. Harrison, Jr., President and Chief Executive Officer
Donald L. Boudreau, Vice Chairman
James B. Lee, Jr., Vice Chairman
Denis J. O'Leary, Executive Vice President
Marc J. Shapiro, Vice Chairman
Joseph G. Sponholz, Vice Chairman
John J. Farrell, Director, Human Resources
Frederick W. Hill, Director Corporate Marketing and Communication
William H. McDavid, General Counsel
Directors**
Principal Occupation or Employment;
Name Business or Residence Address
- ---- -----------------------------------
Hans W. Becherer Chairman of the Board
Chief Executive Officer
Deere & Company
8601 John Deere Road
Moline, IL 61265
Frank A. Bennack, Jr. President and Chief Executive Officer
The Hearst Corporation
959 Eighth Avenue
New York, New York 10019
Susan V. Berresford President
The Ford Foundation
320 E. 43rd Street
New York, New York 10017
M. Anthony Burns Chairman of the Board, President and
Chief Executive Officer
Ryder System, Inc.
2800 N.W. 82nd Avenue
Miami, Florida 33166
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* Principal occupation is executive officer and/or employee of The Chase
Manhattan Bank. Business address is c/o The Chase Manhattan Bank, 270 Park
Avenue, New York, New York 10017. Each executive officer of Chase is a
U.S. citizen.
** Each of the persons named below is a citizen of the United States of
America.
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H. Laurence Fuller Co-Chairman of the Board and
Chief Executive Officer
Amoco Corporation
200 East Randolph Drive
Chicago, Illinois 60601
William H. Gray, III President and Chief Executive Officer
The College Fund/UNCF
9860 Willow Oaks Corporate Drive
P.O. Box 10444
Fairfax, Virginia 22031
William B. Harrison, Jr. President and Chief Executive Officer
The Chase Manhattan Corporation
270 Park Avenue, 8th Floor
New York, New York 10017-2070
Harold S. Hook Retired Chairman and Chief Executive Officer
American General Corporation
2929 Allen Parkway
Houston, Texas 77019
Helene L. Kaplan Of Counsel
Skadden, Arps, Slate, Meagher & Flom
919 Third Avenue - Room 29-72
New York, New York 10022
Thomas G. Labrecque Retired President and Chief Operating Officer
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
Henry B. Schacht Director and Senior Advisor
E.M. Warburg, Pincus & Co., LLC
466 Lexington Avenue, 10th Floor
New York, New York 10017
Walter V. Shipley Chairman of the Board
The Chase Manhattan Corporation
270 Park Avenue
New York, New York 10017
Andrew C. Sigler Retired Chairman of the Board and
Chief Executive Officer
Champion International Corporation
One Champion Plaza
Stamford, Connecticut 06921
John R. Stafford Chairman, President and
Chief Executive Officer
American Home Products Corporation
5 Giralda Farms
Madison, New Jersey 07940
Marina v.N. Whitman Professor of Business Administration
and Public Policy
The University of Michigan
School of Public Policy
411 Lorch Hall, 611 Tappan Street
Ann Arbor, MI 48109-1220
<PAGE>
Exhibit 2
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
------------------------------------------
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (the "Amendment") is
made as of June 28, 1999, by and among Patriot American Hospitality, Inc., a
Delaware corporation ("Patriot"), Wyndham International, Inc., a Delaware
corporation ("Wyndham," and together with Patriot, the "Companies"), Patriot
American Hospitality Partnership, L.P. ("Patriot OP"), Wyndham International
Operating Partnership, L.P. ("Wyndham OP," and together with Patriot OP, the
"Operating Partnerships") and the parties identified on the signature page
hereof as the Original Investors (the "Original Investors"). All capitalized
terms used herein without definition shall have the meanings ascribed to them in
that certain Securities Purchase Agreement dated as of February 18, 1999 by and
among the Companies, the Operating Partnerships and the Original Investors (the
"Securities Purchase Agreement').
WHEREAS, the Companies, the Operating Partnerships, and the Original
Investors desire to make certain amendments to the Securities Purchase
Agreement.
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definition of Permitted Assignees and Permitted Third Party
Transferee. The term "Permitted Assignees" as defined in Section 1.1(b) of the
Securities Purchase Agreement shall include (i) the voting trusts formed or to
be formed by Beacon Capital Partners, Inc. and Beacon Capital Partners, L.P.
("Beacon") for the purpose of holding Beacon's Shares, as described in that
certain Confidential Information Statement prepared by Beacon dated June 8,
1999, as amended, and (ii) The Dartmouth Trust, The Franklin Trust and The
Bonnybrook Trust. The term "Permitted Third Party Transferees" as defined in
Section 1.1(b) of the Securities Purchase Agreement shall include the
beneficiaries of AIF/THL PAH LLC (other than Ares Leveraged Investment Fund,
L.P. and Ares Leveraged Investment Fund II, L.P., which shall be deemed to be
Permitted Assignees of Apollo Investment Fund IV, L.P. and Apollo Real Estate
Investment Fund III, L.P.) to the extent that AIF/THL PAH LLC distributes Shares
to these beneficiaries and these beneficiaries agree to be bound by the terms
and conditions of the Securities Purchase Agreement.
2. Delayed Closing of Portion of Shares Purchase.
(a) Section 1.2 of the Securities Purchase Agreement is hereby
amended by adding the following sentence at the end of Section 1.2:
"Notwithstanding anything contained in this Agreement to the
contrary, upon the terms and subject to the conditions set
forth herein, on July 1, 1999, Wyndham will issue and sell to
Beacon, and, in reliance on the representations and warranties
of the Companies and the Operating Partnerships contained
herein, Beacon will purchase from Wyndham 450,000 Shares (the
"Delayed Purchase Shares") of the 1,500,000 Shares to be
purchased by Beacon pursuant to Section 1.1, for a purchase
price of $100.00 per Share. Beacon, in its sole discretion,
may fund up to $45 million (but only to the extent that the
same, less accrued interest
<PAGE>
and exit fees, has been advanced by Beacon on or prior to July
1, 1999) of the Purchase Price of the Delayed Purchase Shares
through transfer of all or part of Beacon's loan receivable,
plus accrued interest and exit fees, from PAH Realty Company,
LLC which is secured by a mortgage on the Batterymarch hotel,
Boston, Massachusetts (the "Batterymarch Mortgage Loan")."
(b) Section 2.1 of the Securities Purchase Agreement is hereby amended
by adding the following sentence at the end of Section 2.1:
"Notwithstanding anything contained in this Agreement to the
contrary, for purposes of all matters in this Agreement
relating to the purchase and sale of the Delayed Purchase
Shares, including, without limitation the satisfaction of the
conditions precedent contained in Article V of this Agreement,
the term "Closing" shall mean the closing of the purchase and
sale of the Delayed Purchase Shares, and the term "Closing
Date" shall mean July 1, 1999.
3. Unaccredited Investors as Permitted Assignees. Section 4.1(b) of the
Securities Purchase Agreement is amended by deleting the last sentence of
Section 4.1(b) and replacing it with the following"
"Each Investor, other than three of the Permitted Assignees of Thomas
H. Lee Equity Fund IV, L.P., Thomas H. Lee Foreign Fund IV, L.P.,
Thomas H. Lee Charitable Investment L.P., and THL-CCI Limited
Partnership qualifies as an "accredited investor" as such term is
defined in Section 2(15) of the Securities Act and Regulation D
promulgated thereunder."
4. Definition of "Covered Anatole Termination". Section 10.2(a) of the
Securities Purchase Agreement is amended so that the defined term "Covered
Anatole Termination" shall mean any termination of the Anatole Management
Contract pursuant to Section 12.2(2) of the Anatole Management Contract, as
amended February 16, 1999. The Companies and the Operating Partnerships agree to
make no further amendments to Section 12.2(2) of the Anatole Management Contract
without the Investors' prior written consent.
5. Restructuring Plan. The first sentence of paragraph number 6 of
Exhibit A - Restructuring Plan, to the Securities Purchase Agreement is hereby
amended to change the reference in such sentence from "voting stock" to
"non-voting stock."
6. Form of Bylaws. Exhibit C to the Securities Purchase Agreement, Form
of Amended and Restated Bylaws of Wyndham, is hereby deleted and replaced in its
entirety with the attached Exhibit C.
7. Form of Certificate of Designation of Series B Convertible Preferred
Stock. Exhibit G to the Securities Purchase Agreement, Form of Certificate of
Designation of Series B Convertible Preferred Stock, is hereby deleted and
replaced in its entirety with the attached Exhibit G.
2
<PAGE>
8. Impact of Amendment. All provisions of the Securities Purchase
Agreement and the exhibits thereto not amended by this Amendment shall remain in
full force and effect.
[Remainder of Page Intentionally Left Blank]
3
<PAGE>
IN WITNESS WHEREOF, each of the undersigned has caused the
foregoing Agreement to be executed by one of its duly authorized signatories as
of the date first above written.
PATRIOT AMERICAN HOSPITALITY, INC.
By:
-----------------------------
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
By:
-----------------------------
4
<PAGE>
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
5
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
-----------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts
02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
-----------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts
02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
-----------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts
02109
6
<PAGE>
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
-----------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts
02109
7
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its
General Partner
By:
---------------------------------
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
2
<PAGE>
Exhibit 3
================================================================================
-------------------------------
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>
Article 1. Certain Definitions..........................................................1
Article 2. Board of Directors...........................................................7
Section 2.1. Board of Directors.............................................7
Article 3. Restrictions on Transfer.....................................................7
Section 3.1. Restrictions on Transfer.......................................8
Section 3.2. Exceptions to Restrictions.....................................8
Section 3.3. Binding Effect on Transferees..................................9
Section 3.4. Notifications Regarding Transfers..............................9
Section 3.5. Restrictions on Conversion.....................................9
Article 4. Tag-Along Rights; Drag-Along Rights.........................................10
Section 4.1. Tag-Along Rights..............................................11
Section 4.2. Drag-Along Rights.............................................11
Article 5. Registration Rights.........................................................12
Section 5.1. Registration Rights...........................................12
Article 6. Miscellaneous...............................................................13
Section 6.1. Further Actions; Cooperation..................................13
Section 6.2. Successors and Assigns........................................13
Section 6.3. Representatives...............................................14
Section 6.4. Amendment; Modification; Waiver...............................14
Section 6.5. Notices.......................................................14
Section 6.6. Entire Agreement: Governing Law...............................14
Section 6.7. Injunctive Relief.............................................15
Section 6.8 Headings......................................................15
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the Shares of
Common Stock; New Issuances...................................15
Section 6.10. Counterparts..................................................15
Section 6.11. Jurisdiction; Forum...........................................16
Section 6.12. Termination...................................................16
</TABLE>
<PAGE>
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June 29,
1999, by and among the parties named on the signature pages hereto
(collectively, the "Stockholders") and such other persons that become parties to
this Agreement as described herein.
W I T N E S S E T H:
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as
of February 18, 1999, as amended, by and among Wyndham International, Inc. (the
"Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partnership, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the "Original
Investors") and (ii) Assignment and Assumption Agreements by and among the
Company, Patriot and the Stockholders, the Stockholders will purchase shares of
Series B Convertible Preferred Stock (the "Shares") of the Company; and
WHEREAS, the parties hereto deem it in their best interests to enter
into this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of their securities of
the Company and to provide for certain rights and obligations with respect
thereto as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" means, as to any Person, (a) any Person which directly
or indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of such
Person or of any Person which directly or indirectly controls, is controlled by,
or is under common control with such Person, and (c) any individual who is a
member of the immediate family of any Person described in clause (a) or clause
(b) above. For purposes of this definition, "control" of a Person shall mean the
power, direct or indirect, (i) to vote or direct the voting of 5% or more of the
Voting Stock of such Person or (ii) to direct or cause the direction of the
management and policies of such Person whether by ownership of Capital Stock, by
contract or otherwise.
1
<PAGE>
"Agreement" means this Agreement as in effect on the date hereof and
as hereafter from time to time amended, modified or supplemented in accordance
with the terms hereof.
"Apollo Investors" means Apollo Real Estate Investment Fund IV,
L.P., Apollo Investment Fund IV, L.P., Strategic Real Estate Investments I, LLC
and their respective Permitted Assignees and Permitted Third Party Transferees.
"Apollo Stockholder" means, collectively, Apollo Management IV, L.P.
and Apollo Real Estate Management IV, L.P.
"Beacon Affiliate" means any director or officer, or member of the
immediate family of a director or officer, of any entity that is included within
the definition of "Beacon Stockholder" in office at the time of the relevant
determination, and any corporation, partnership, limited liability company,
trust or other entity that is controlled by, or the equity interests of which
are owned by, any of the foregoing individuals.
"Beacon Stockholder" means, collectively, Beacon Capital Partners,
L.P., Beacon Capital Partners, Inc., BCP Voting, Inc., as voting trustee of the
First Beacon Voting Trust, and any other entity that is an Affiliate of Beacon
Capital Partners, L.P. that becomes a trustee of the First Beacon Voting Trust
or the Second Beacon Voting Trust, if formed, and any successors thereto.
"Beacon Voting Trust" means, collectively, the First Beacon Voting
Trust and the Second Beacon Voting Trust.
"Beacon Voting Trust Agreement" means, collectively, (i) the Voting
Trust Agreement, dated as of June 8, 1999, as amended, by and between Beacon
Capital Partners, L.P., as the initial beneficiary of the First Beacon Voting
Trust, and BCP Voting, Inc, as trustee of the First Beacon Voting Trust, an
accurate copy of which has been provided to the Lead Stockholders, and (ii) if
the Second Beacon Voting Trust is formed, the Voting Trust Agreement to be
entered into by and between Beacon Capital Partners, L.P., as the initial
beneficiary of the Second Beacon Voting Trust, and the trustee of the Second
Beacon Voting Trust; provided, that (x) the proposed form of the Voting Trust
Agreement for the Second Beacon Voting Trust and the proposed form of any
amendment to the Voting Trust Agreement for the First Beacon Voting Trust or the
Second Beacon Voting Trust shall be provided to the Lead Stockholders for their
review at least ten days in advance of the earlier of its execution or
distribution and (y) the Lead Stockholders shall have approved in advance of the
earlier of its execution or distribution any provision of the Second Beacon
Voting Trust or any amendment to the Voting Trust Agreement for the First Beacon
Voting Trust or the Second Beacon Voting Trust that alters or is otherwise
inconsistent with the definition of "Permitted Voting Trust Transfer" contained
in this Agreement or any other provision affecting those matters addressed in
this Agreement.
2
<PAGE>
"Board of Directors" means the Board of Directors of the Company as
from time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date
hereof and as hereafter further amended.
"Capital Stock" means and includes (i) any and all shares,
interests, participations or other equivalents of or interests in (however
designated) corporate stock of any Person, including, without limitation, shares
of preferred or preference stock, (ii) all partnership interests (whether
general or limited) in any Person which is a partnership, (iii) all membership
interests or limited liability company interests in any limited liability
company and (iv) all equity or ownership interests in any Person of any other
type.
"Certificate of Incorporation" means the Certificate of
Incorporation of the Company as in effect on the date hereof and as hereafter
amended, modified, supplemented or restated.
"Class A Common Stock" means the Class A common stock, par value
$0.01 per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value
$0.01 per share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common
Stock or, if the Company's common stock ceases to be so designated, the common
stock, par value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation,
and any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and
any other securities convertible into, exercisable for or exchangeable with
Common Stock or Preferred Stock and other equity security issued by the Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P.
Voting Trust.
"Lead Stockholders" means the Apollo Stockholder and the Lee
Stockholder; provided that if either of the Lead Stockholders and its respective
Affiliates cease to collectively beneficially own at least 10% of the shares of
Common Stock (including shares of Common Stock issuable upon conversion of
securities convertible, exchangeable or exercisable for shares of Common Stock)
beneficially owned by such Lead Stockholder and its Affiliates immediately
following the closing of the transactions
3
<PAGE>
contemplated by the Securities Purchase Agreement, then such Lead Stockholder
shall cease to be a Lead Stockholder.
"Lee Director Percentage" means (i) the total number of shares of
Common Stock (including, without duplication, shares of Common Stock issuable
upon conversion of securities convertible, exchangeable or exercisable for
shares of Common Stock) beneficially owned by the Lee Investors (excluding open
market purchases) divided by (ii) the total number of shares of Common Stock
(including, without duplication, shares of Common Stock issuable upon conversion
of securities convertible, exchangeable or exercisable for shares of Common
Stock) beneficially owned by the Apollo Investors and the Lee Investors
(excluding open market purchases).
"Lee Investors" means Thomas H. Lee Equity Fund IV, L.P., Thomas H.
Lee Foreign Fund IV, L.P., Thomas H. Lee Charitable Investment L.P., THL-CCI
Limited Partnership, the Beacon Stockholder and their respective Permitted
Assignees and Permitted Third Party Transferees.
"Lee Stockholder" means THL Equity Advisors IV, LLC, in its capacity
as general partner of Thomas H. Lee Equity Fund IV, L.P.
"Permitted Assignee" shall have the same meaning as set forth in the
Securities Purchase Agreement.
"Permitted Beacon Voting Trust Transfer" means a transfer of Shares
through a termination of the Beacon Voting Trust on or after the second
anniversary of the date of this Agreement that complies with each of the
following requirements: (i) the termination shall be made pursuant to Section
15(a)(iv) of the Beacon Voting Trust Agreement at the request of beneficiaries
of the Beacon Voting Trust that shall not include the Beacon Stockholder or any
Beacon Affiliate, such termination shall not have been directly or indirectly
proposed, solicited or encouraged by the Beacon Stockholder (other than the
required action as trustee under such Section 15(a)(iv)) or by any Beacon
Affiliate and the Beacon Stockholder and the Beacon Affiliates shall have used
their reasonable efforts to discourage such termination; (ii) the Shares so
transferred shall be converted into shares of Series A Preferred Stock; (iii)
any shares of Series A Preferred Stock to be received in connection with such
termination by the Beacon Stockholder or by any Beacon Affiliate shall remain
subject to the transfer, conversion and other restrictions of this Agreement and
the Beacon Stockholder and any such Beacon Affiliate shall execute any agreement
required under Section 3.3 of this Agreement to evidence the foregoing; (iv)
each of the transferees of such Shares shall have acknowledged in form and
substance satisfactory to the Lead Stockholders such transferee's agreement to
be bound by Section 5.1(b) of this Agreement; and (v) such termination and the
transfer of Shares made in connection therewith shall be made in compliance with
all applicable law.
4
<PAGE>
"Permitted Third Party Transferee" shall have the same meaning as
set forth in the Securities Purchase Agreement.
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization, business,
trust or any other entity or organization, including a government or any
subdivision or agency thereof.
"Preferred Stock" means the Series A Preferred Stock and the Series
B Preferred Stock.
"Pro Rata Portion" means, with reference to any Stockholder at any
time, a fraction, the numerator of which is the number of votes represented by
the Shares and the Class B Common Stock then issued and outstanding and held by
such Stockholder, and the denominator of which is the aggregate number of votes
represented by the Shares and the Class B Common Stock then issued and
outstanding and held by the Stockholders taken together.
"Registrable Securities" means (i) any shares of Class B Common
Stock issued or issuable upon conversion of any of the Shares, (ii) any shares
of Series A Preferred Stock issued or issuable upon conversion of the Shares,
(iii) any shares of Class A Common Stock issued or issuable upon conversion of
the Series A Preferred Stock described in clause (ii) above, and (iv) any
securities issued or issuable with respect to any Series A Preferred Stock,
Series B Preferred Stock, Class A Common Stock or Class B Common Stock described
in clauses (i), (ii) and (iii) above by way of stock dividend or stock split or
in connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 18, 1999, by and among the Company and the
persons listed on the signature pages thereof.
"Restated Certificate of Incorporation" means the Restated
Certificate of Incorporation of the Company, as proposed to be filed with the
Secretary of State of the State of Delaware on the date of the Closing under the
Securities Purchase Agreement.
"Required Investor Director Percentage" means 1.0 divided by the
total number of Class B directors of the Company that may be elected pursuant to
Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L.P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
5
<PAGE>
"Securities Act" means, as of any date, the Securities Act of 1933,
as amended, or any similar Federal statute then in effect and superseding such
act, and any reference to a particular section thereof shall include a reference
to the comparable section, if any, of any such similar Federal statute, and the
rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
references in this Agreement to the "Shares" shall be deemed to include
additional shares of Series B Preferred Stock that are issued pursuant to the
Certificate of Designation for such Preferred Stock.
"Stockholders" shall mean (i) the Stockholders named on the
signature page hereto and (ii) each Third Party Transferee who becomes a party
to or bound by the provisions of this Agreement in accordance with the terms
hereof, in each case for so long as such person continues to hold Equity
Securities in the Company.
"Third Party Transferee" has the meaning specified in Section 3.2.
"Voting Stock" means Capital Stock of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote in the election of directors (or Persons performing similar functions).
Article 2. Board of Directors
Section 2.1. Board of Directors. (a) For so long as this Agreement
is in effect, each of the Stockholders shall vote all of the Voting Stock owned
or held of record by such Stockholder so as to elect, and to continue in office,
each of the directors of the Company designated by the Lead Stockholders. So
long as the Stockholders are entitled to elect eight Class B directors pursuant
to the Restated Certificate of Incorporation, the Apollo Stockholder shall have
the right to designate four Class B directors of the Company and the Lee
Stockholder shall have the right to designate four Class B directors of the
Company. In the event that the number of Class B directors of the Company that
the Stockholders are entitled to elect is reduced to below eight pursuant to
Section V(D) of the Restated Certificate of Incorporation, (i) the number of
Class B directors that the Lee Stockholder shall be entitled to designate shall
be equal to the Lee Director Percentage divided by the Required Investor
Director Percentage (rounded up or down to the nearest integer) and (ii) the
number of Class B directors that the Apollo Stockholder
6
<PAGE>
shall be entitled to designate shall be equal to the total number of Class B
directors of the Company that the Stockholders are entitled to elect pursuant to
Section V(D) of the Restated Certificate of Incorporation minus the number of
Class B directors that the Lee Stockholder is entitled to designate pursuant to
this Section 2.1(a).
(b) If either of the Lead Stockholders shall notify the other
Stockholders of its desire to remove, with or without cause, any director of the
Company previously designated by it, each Stockholder shall vote all of the
shares of Voting Stock owned or held by such Stockholder and take all other
necessary actions to cause the removal of any director designated by such Lead
Stockholder pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead Stockholder shall
for any reason cease to serve as a member of the Board of Directors during his
term of office, the resulting vacancy on the Board of Directors will be filled
by a representative designated by such Lead Stockholder.
Article 3. Restrictions on Transfer
Section 3.1. Restrictions on Transfer.
(a) Each Stockholder agrees that for a period of five years
following the date of this Agreement, such Stockholder will not, directly or
indirectly, offer, sell, transfer, assign or otherwise dispose of (or make any
exchange, gift, assignment or pledge of) (collectively, for purposes of Articles
3 and 4 only, a "transfer") any of its Shares, any shares of Common Stock or
Preferred Stock issuable upon conversion of Shares, or options, warrants or
rights to subscribe for or purchase Shares, Preferred Stock or Common Stock that
may be issued hereafter to such Stockholder, except as provided in this Article
3. In addition to the other restrictions contained in this Article 3, each
Stockholder agrees that it will not, directly or indirectly, transfer any of its
Shares or any shares of Common Stock or Preferred Stock issuable upon conversion
of Shares except as permitted under the Securities Act and other applicable
securities laws.
(b) Any attempt by any Stockholder to transfer any Shares and any
Common Stock or Preferred Stock issuable upon conversion of the Shares not in
compliance with this Agreement shall be null and void. Without limiting the
foregoing, it is expressly understood and agreed that any transfer of Shares by
the Beacon Voting Trust that is not the Permitted Beacon Voting Trust Transfer
or a transfer otherwise expressly permitted under this Agreement shall be null
and void and not be recorded on the transfer books of the Company.
Section 3.2 Exceptions to Restrictions. The provisions of Section
3.1 shall not apply to any of the following transfers:
7
<PAGE>
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its
respective Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, in accordance with Article 4 or 5
hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or Preferred
Stock issuable upon conversion of such Shares, to a bank, financial institution
or other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third Party
Transferee") execute (or, in the case of clause (d) above, that the pledging
Stockholder use its reasonable efforts to cause the pledgee referred to therein
to execute prior to any foreclosure of the shares so pledged) the agreement
referred to in Section 3.3 hereof. The provisions of this Agreement shall be
applied to the Shares, including the shares of Common Stock or Preferred Stock
issuable upon conversion of Shares, acquired by any Third Party Transferee of a
Stockholder in the same manner and to the same extent as such provisions were
applicable to such Shares, or Common Stock or Preferred Stock issuable upon
conversion of Shares, in the hands of such Stockholder. Any reference in this
Agreement to the Stockholders shall be deemed to include each Stockholder and
its respective Third Party Transferees.
No transfer of any Shares, or shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, to a Third Party Transferee shall be
effective unless such transfer is made (i) pursuant to an effective registration
statement under the Securities Act and is qualified under applicable state
securities or blue sky laws or (ii) without registration under the Securities
Act and qualification under applicable state securities or blue sky laws, as a
result of the availability of an exemption from registration and qualification
under such laws, and such Stockholder shall have furnished to the Lead
Stockholders a certificate to that effect; provided, however, that no such
certificate or opinion of counsel shall be required in connection with a
transfer of shares of Common Stock pursuant to Sections 4.1 or 4.2 hereof.
Section 3.3 Binding Effect on Transferees. The obligations of a
party hereto shall be binding upon any transferee to whom Shares or Common Stock
or Preferred Stock issuable upon conversion of such Shares are transferred by
such party, whether or not such transfer is permitted under the terms of this
Agreement; provided, that the foregoing shall not apply to (a) transferees
(other than the Beacon Affiliates) pursuant to the Permitted Beacon Voting Trust
Transfer, (b) transferees pursuant to transfers permitted under Section 3.2(c)
or (c) transferees for which the transfer occurs following
8
<PAGE>
the fifth anniversary of the date of this Agreement (transferees permitted under
clause (a), (b) or (c), collectively, the "Exempted Transferees"). Prior to
consummation of any such transfer other than to an Exempted Transferee, such
party shall cause the transferee to execute an agreement in form and substance
reasonably satisfactory to the Lead Stockholders, providing that such transferee
shall be bound by and shall fully comply with the terms of this Agreement.
Section 3.4. Notifications Regarding Transfers. To the extent that
any Stockholder proposes a transfer pursuant to Section 3.2, such Stockholder
shall provide notice to the Lead Stockholders at least ten Business Days prior
to the proposed transfer date of the number of Shares proposed to be
transferred. Not less that two Business Days prior to a proposed transfer date
requiring the approval of the Lead Stockholders, the Lead Stockholders shall
notify such Stockholder of whether the transfer has been approved, it being
agreed and understood that the Permitted Beacon Voting Trust Transfer shall not
require such approval.
Section 3.5. Restrictions on Conversion. Each Stockholder
understands and agrees that, for a period of five years following the date of
this Agreement, such Stockholder will not convert any Shares into shares of
Common Stock or Series A Preferred Stock without the consent of each of the Lead
Stockholders, except in connection with (i) an exercise of such Stockholder's
rights under Section 4.1 in connection with a sale of Shares by one of the Lead
Stockholders, (ii) a sale of Registrable Securities pursuant to Section 5.1 or
(iii) the Permitted Beacon Voting Trust Transfer or a subsequent conversion of
shares of Series A Preferred Stock received thereunder (other than by a Beacon
Affiliate).
Article 4. Tag-Along Rights; Drag-Along Rights
Section 4.1. Tag-Along Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
except in the case of (i) transfers by the Stockholders to a Third Party
Transferee referred to in Section 3.2(b), (c), (d) and (e) hereof, (ii)
transactions where rights are exercised pursuant to Section 4.2 hereof and (iii)
sales pursuant to Article 5 hereof or in connection with a sale pursuant to Rule
144 under the Securities Act of 1933, each Stockholder shall refrain from
effecting any transfer of Shares, Series A Preferred Stock or Class B Common
Stock unless, prior to the consummation thereof, the other Stockholders shall
have been afforded the opportunity to join in such transfer on a pro rata basis,
as provided in this Section 4.1 (each such Stockholder, a "Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the Stockholder
proposing a transfer shall cause the person or group that proposes to acquire
such shares (the "Proposed Purchaser") to offer in writing (the "Tag-Along
Offer") to purchase
9
<PAGE>
Shares, Series A Preferred Stock or Class B Common Stock owned by the Tag-Along
Person, such that the number of Shares, Series A Preferred Stock or Class B
Common Stock so offered to be purchased from the Tag-Along Person shall be equal
to the product obtained by multiplying the aggregate number of Shares, Series A
Preferred Stock or Class B Common Stock proposed to be purchased by the Proposed
Purchaser by such Tag-Along Person's Pro Rata Portion. If the Purchase Offer is
accepted by any Tag-Along Person, then the number of Shares, Series A Preferred
Stock or Class B Common Stock to be sold to the Proposed Purchaser by the
Stockholder proposing the transfer, shall be reduced by the aggregate number of
Shares, Series A Preferred Stock or Class B Common Stock to be purchased by the
Proposed Purchaser from such Tag-Along Person pursuant thereto. Such purchase
shall be made on the same terms and conditions (including timing of receipt of
consideration) as the Proposed Purchaser shall have offered to purchase Shares,
Series A Preferred Stock or Class B Common Stock to be sold by the Stockholder
who proposed the transfer (net, in the case of any options, warrants or rights,
of any amounts required to be paid by the holder upon exercise thereof). The
Tag-Along Person shall have 20 days from the date of receipt of the Purchase
Offer during which to accept such Purchase Offer, and the closing of such
purchase shall occur within 30 days after such acceptance or at such other time
as the Tag-Along Person and the Proposed Purchaser may agree.
Section 4.2. Drag-Along Rights.
(a) If both of the Lead Stockholders propose a transfer in
connection with a sale or exchange, whether directly or pursuant to a merger,
consolidation or otherwise (a "Drag-Along Sale"), the Lead Stockholders may
require all other Stockholders to sell all Shares proposed to be sold therein
("Drag-Along Rights") then held by every Stockholder, for the same consideration
and otherwise on the same terms and conditions (including timing of receipt of
consideration) as the sale by Lead Stockholders; provided, however, that if
either of the Lead Stockholders and its respective Affiliates cease to
collectively beneficially own at least 20% of the shares of Common Stock
(including shares of Common Stock issuable upon conversion of securities
convertible, exchangeable or exercisable for shares of Common Stock)
beneficially owned by them immediately following the closing of the transactions
contemplated by the Securities Purchase Agreement, Stockholders collectively
holding more than 50% of the voting power represented by the outstanding Shares
and shares of Class B Common Stock (the "Majority Stockholders") shall have the
ability to exercise the Drag-Along Rights described in this Section 4.2.
(b) The Lead Stockholders or the Majority Stockholders, as
applicable, shall provide written notice of such Drag-Along Sale to the other
Stockholders (a "Drag-Along Notice") not later than the 15th day prior to the
proposed Drag-Along Sale. The Drag-Along Notice shall identify the transferee,
the number of Shares and/or shares of Class B Common Stock to be transferred,
the consideration for which a transfer is proposed to be made (the "Drag-Along
Sale Price(s)") and all other material terms and conditions of the
10
<PAGE>
Drag-Along Sale. Subject to Section 4.2(d), each Stockholder shall be required
to participate in the Drag-Along Sale on the terms and conditions set forth in
the Drag-Along Notice and to tender all its Shares and shares of Class B Common
Stock as set forth below. The price(s) payable in such transfer shall be the
Drag-Along Sale Price(s). Not later than the 10th day following the date of the
Drag-Along Notice (the "Drag-Along Notice Period"), each of the Stockholders
shall deliver to a representative of Lead Stockholders or the Majority
Stockholders, as applicable, designated in the Drag-Along Notice certificates
representing all the Shares and shares of Class B Common Stock beneficially
owned and held by such Stockholder, duly endorsed, together with all other
documents required to be executed in connection with such Drag-Along Sale, or if
such delivery is not permitted by applicable law, an unconditional agreement to
deliver such shares pursuant to this Section 4.2 at the closing for such
Drag-Along Sale against delivery to such Stockholder of the consideration
therefor.
(c) The Lead Stockholders or the Majority Stockholders, as
applicable, shall have a period of 90 days from the date of receipt of the
Drag-Along Notice to consummate the Drag-Along Sale on the terms and conditions
set forth in such Drag-Along Sale Notice. If the Drag-Along Sale shall not have
been consummated during such period, the Lead Stockholders or the Majority
Stockholders, as applicable, shall return to each of the Stockholders all
certificates or other evidence of title and ownership representing shares that
such Stockholders delivered for transfer pursuant hereto, together with any
documents in the possession of the Lead Stockholders or the Majority
Stockholders, as applicable, executed by the other Stockholders in connection
with such proposed transfer, and all the restrictions on transfer contained in
this Agreement or otherwise applicable at such time with respect to shares owned
by the Stockholders shall again be in effect.
(d) Concurrently with the consummation of the transfer of shares
pursuant to this Section 4.2, the Lead Stockholders or the Majority
Stockholders, as applicable, shall give notice thereof to all Stockholders,
shall remit to each of the Stockholders who have surrendered their certificates
or other evidence of title and ownership the total consideration (by bank or
certified check) for the shares transferred pursuant hereto and shall furnish
such other evidence of the completion and time of completion of such transfer
and the terms thereof as may be reasonably requested by such Stockholders.
Article 5. Registration Rights
Section 5.1. Registration Rights.
(a) Each of the Stockholders shall be entitled to the benefits of,
and shall be bound by the obligations of, the Registration Rights Agreement with
respect to any Registrable Securities held by such Stockholder as if the
Stockholder were a party to the Registration Rights Agreement; provided,
however, that (i) any request for a Required
11
<PAGE>
Registration (as such term is defined in the Registration Rights Agreement)
pursuant to Section 2.1(a) of the Registration Rights Agreement made on or prior
to the third anniversary of the date of this Agreement shall only be made by or
with the consent of both of the Lead Stockholders, (ii) any request for a
Required Registration pursuant to Section 2.1(a) of the Registration Rights
Agreement made during the period following the third anniversary of the date of
this Agreement through the fifth anniversary of the date of this Agreement shall
only be made by the Apollo Stockholder, the Lee Stockholder or the Beacon
Stockholder and (iii) any request for a Shelf (as such term is defined in the
Registration Rights Agreement) pursuant to Section 2.1(a) of the Registration
Rights Agreement made on or prior to the fifth anniversary of the date of this
Agreement shall only be made by or with the consent of both of the Lead
Stockholders. Notwithstanding the foregoing, each of the Stockholders shall be
entitled to exercise its rights to include its Registrable Securities in a
registration effected by the Company pursuant to Section 2.1(b) of the
Registration Rights Agreement if such registration is a Required Registration
made in accordance with the immediately preceding sentence or if either Lead
Stockholder is including Registrable Securities in such registration. Each of
the Lead Stockholders agrees for the benefit of the other Lead Stockholder that
it will not, without the approval of the other Lead Stockholder, include its
Registrable Securities in a registration effected by the Company pursuant to
Section 2.1(b) of the Registration Rights Agreement during the three year period
following the date of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the
Registration Rights Agreement to the contrary, in the event that the Permitted
Beacon Voting Trust Transfer occurs, none of the shares of Preferred Stock or
Common Stock that are received by the beneficiaries of the Beacon Voting Trust
in connection therewith or are issued or issuable upon conversion of such shares
or shares received upon such conversion shall be Registrable Securities, other
than those shares that are held by the Beacon Stockholder or by a Beacon
Affiliate and remain subject to the transfer, conversion and other restrictions
of this Agreement. The Beacon Stockholder, in its capacities as the trustee and
initial beneficiary of the First Beacon Voting Trust and the Second Beacon
Voting Trust, hereby consents and agrees to be bound by the provisions of this
Section 5.1(b) on behalf of itself and all future beneficiaries of the Beacon
Voting Trust and acknowledges and agrees that it has the sole responsibility to
notify all such beneficiaries or transferees of Shares owned by the Beacon
Voting Trust of the terms of this Section 5.1(b) and the fact that they are
bound thereby.
Article 6. Miscellaneous
Section 6.1. Further Actions; Cooperation. Each of the Stockholders
agrees to use its reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable in connection with
the transactions contemplated by this Agreement. Without limiting the generality
of the foregoing, each of the Stockholders (i)
12
<PAGE>
acknowledges that the Stockholders will prepare and file with the Securities and
Exchange Commission filings under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"), including under Section 13(d) of the Exchange Act, relating to their
beneficial ownership of the Securities and (ii) agrees to use its reasonable
efforts to assist and cooperate with the other parties in promptly preparing,
reviewing and executing any such filings under the Exchange Act, including any
amendments thereto.
Section 6.2. Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. No Stockholder may assign any of
its rights hereunder to any Person other than a transferee that has complied in
all respects with the requirements of this Agreement (including, without
limitation, Section 3.4 hereof). If any transferee of any Stockholder shall
acquire any Shares or Common Stock issuable upon conversion of such Shares, in
any manner, whether by operation of law or otherwise, such shares shall be held
subject to all of the terms of this Agreement, and by taking and holding such
shares such Person shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement.
Section 6.3. Representatives. Each of the Stockholders hereby
designates and appoints (and each Third Party Transferee of each such
Stockholders is hereby deemed to have so designated and appointed) the Lead
Stockholders to serve as the representatives of each such Stockholder to
administer and make determinations as to matters arising or contemplated by the
Securities Purchase Agreement and related documentation, including without
limitation indemnification obligations, disputes and other rights and
obligations. Each of the Stockholders hereby agrees and acknowledges that the
Lead Stockholders shall be the only persons authorized to take any action so
required, authorized or contemplated by the Securities Purchase Agreement by
each such person. Each such person hereby authorizes (and each such Third Party
Transferee shall be deemed to have authorized) the other parties hereto to
disregard any notice or other action taken by such person pursuant to the
Securities Purchase Agreement except for the Lead Stockholders. The other
parties hereto are and will be entitled to rely on any action so taken by the
Lead Stockholders.
Section 6.4. Amendment; Modification; Waiver. No provision of this
Agreement may be amended, modified or waived except by an instrument in writing
executed by the Majority Stockholders at the time of such proposed amendment,
modification or waiver; provided, however, that, so long as either of the Lead
Stockholders and their respective Affiliates beneficially own at least 20% of
the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) initially owned by such Stockholders at the closing of the
transactions contemplated by the
13
<PAGE>
Securities Purchase Agreement, this Agreement may not be amended or modified
without such Lead Stockholder's consent.
Section 6.5. Notices. All notices and other communications provided
for hereunder shall be in writing by hand delivery, telex, telecopier, or any
courier guaranteeing overnight delivery (i) if to the Stockholders as of the
date hereof, the address set forth next to the Stockholder's name on the
signature pages hereof, with a copy to Randall H. Doud, Esq., telecopier number
(212) 735-2000, and (ii) with respect to each Stockholder who becomes such after
the date hereof, the address of such Stockholder in the stock records of the
Company. All such communications shall be deemed to have been given or made when
so delivered by hand or sent by telecopy, or three business days after being so
mailed.
Section 6.6. Entire Agreement: Governing Law.
(a) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire agreement
among the parties hereto with respect to the subject transactions contemplated
hereby and supersede all prior oral and written agreements and memoranda and
undertakings among the parties hereto with regard to this subject matter.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE CHOICE OF
LAW PRINCIPLES THEREOF).
Section 6.7. Injunctive Relief. The Stockholders acknowledge and
agree that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any Stockholder from committing any
violations of the provisions of this Agreement.
Section 6.8. Headings. The section and paragraph headings contained
in this Agreement are for reference purposes only and shall not affect in any
way the meaning or interpretation of this Agreement.
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to the Shares and Common Stock and
Preferred Stock issuable upon conversion of such Shares and to any and all
equity or debt securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise) which
may be issued in respect of, in exchange for, or in substitution of, such equity
or debt securities and shall be appropriately adjusted for any
14
<PAGE>
stock dividends, splits, reverse splits, combinations, reclassifications,
recapitalizations, reorganizations and the like occurring after the date hereof.
Section 6.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
Section 6.11. 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.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
APOLLO REAL ESTATE
INVESTMENT FUND IV, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General Partner
By:
-------------------------------------------------
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 Real Estate Management IV,
L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
16
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
-------------------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
-------------------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
-------------------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
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
<PAGE>
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware
corporation
By:
-------------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS Co-Investment Partners I-Q, L.P., a
Delaware limited partnership
By: CMS/Co-Investment Associates, L.P.,
a Delaware limited partnership
By: MSPS/Co-Investment Associates,
Inc., a Delaware corporation
By:
---------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
By: CMS 1997 Investment Partners, L.P.
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By:
-------------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
<PAGE>
GUAYACAN PRIVATE EQUITY FUND LIMITED PARTNERSHIP
By:
-------------------------------------------------
Name:
Title:
Address: 206 Tetuan Street
San Juan, Puerto Rico 00902
<PAGE>
CKE ASSOCIATES LLC
By:
-------------------------------------------------
Name:
Title:
Address: 9465 Wilshire Boulevard
Suite 519
Beverly Hills, CA 90212
<PAGE>
PW HOTEL I, LLC
By:
-------------------------------------------------
Name:
Title:
Address: 1285 Avenue of the Americas
New York, NY 10019
<PAGE>
THE DARTMOUTH TRUST
By:
-------------------------------------------------
Name:
Title:
Address:
THE BONNYBROOK TRUST
By:
-------------------------------------------------
Name:
Title:
Address:
THE FRANKLIN TRUST
By:
-------------------------------------------------
Name:
Title:
Address:
<PAGE>
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:
-----------------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
<PAGE>
THOMAS H. LEE FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By:
---------------------------------------------
Name:
Title:
Address: 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 4
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
---------------------------
Dated as of February 18, 1999
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Section 1. Definitions.......................................................................2
Section 2. Registration Under the Securities Act.............................................5
(a) Required Registration....................................................6
(b) Incidental Registration..................................................9
(c) Expenses................................................................11
(d) Effective Registration Statement Suspension.............................11
(e) Selection of Underwriters...............................................12
Section 3. Restrictions on Public Sale by Wyndham...........................................12
Section 4. Registration Procedures..........................................................12
Section 5. Indemnification; Contribution....................................................19
(a) Indemnification by Wyndham..............................................19
(b) Indemnification by Holders..............................................20
(c) Conduct of Indemnification Proceedings..................................20
(d) Contribution............................................................21
Section 6. Miscellaneous....................................................................23
(a) Inconsistent Agreements.................................................23
(b) Amendments and Waivers..................................................23
(c) Notices.................................................................23
(d) Successors and Assigns..................................................24
(e) Recapitalizations, Exchanges, etc., Affecting Registrable
Securities..............................................................25
(f) Counterparts............................................................25
(g) Descriptive Headings, Etc...............................................25
(h) Severability............................................................25
(i) Governing Law...........................................................26
(j) Specific Performance....................................................26
(k) Entire Agreement........................................................26
</TABLE>
(i)
<PAGE>
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 18, 1999, by and among Wyndham International, Inc., a Delaware
corporation ("Wyndham"), the other Persons (as hereinafter defined) listed on
the signature pages hereof (herein referred to collectively, along with their
respective affiliates and successors who from and after the date hereof
acquire or are otherwise the transferee of any Registrable Securities (as
hereinafter defined), as the "Initial Holders" and individually, as an
"Initial Holder") and any other Person that shall from and after the date
hereof acquire or otherwise be the transferee of any Registrable Securities
and who shall be a Permitted Transferee (as hereinafter defined) of any
Initial Holder (herein referred to collectively as the "Holders" and
individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc.
("Patriot" and, together with Wyndham, the "Companies"), Wyndham International
Operating Partnership, L.P. and Patriot American Hospitality Partnership, L.P.
have entered into a Securities Purchase Agreement, dated as of February 18,
1999 (the "Securities Purchase Agreement"), with the Initial Holders, which
provides, upon the terms and subject to the conditions thereof, for the
purchase by the Initial Holders of shares of Wyndham's Series B Convertible
Preferred Stock, par value $0.01 per share (the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class B Common Stock, par value
$0.01 per share (the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of
Series B Preferred Stock to any Person other than an Initial Holder, such
shares of Series B Preferred Stock will automatically convert, upon the terms
and subject to the conditions set forth in the Certificate of Designation
relating thereto, into shares of Series A Convertible Preferred Stock, par
value $0.01 per share (the "Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of Wyndham;
<PAGE>
WHEREAS, in the event of any transfer of any shares of Class
B Common Stock to any Person other than an Initial Holder, such shares of
Class B Common Stock will automatically convert, upon the terms and subject to
the conditions set forth in the Restated Certificate of Incorporation of
Wyndham; and
WHEREAS, in order to induce the Initial Holders to complete
the transactions contemplated by the Securities Purchase Agreement, Wyndham
has agreed to provide registration rights on the terms and subject to the
conditions provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
Section 1. Definitions.
(a) As used in this Agreement, the following terms shall
have the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promul gated under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section
2(a)(i).
"Class A Common Stock" shall have the meaning set forth in
the preamble; provided, that if there shall be only one authorized class of
Wyndham's common stock at the time, Class A Common Stock shall be deemed to
refer to such common stock.
"Class B Common Stock" shall have the meaning set forth in the
preamble.
"Closing" shall mean the date upon which the purchase and
sale of the Preferred Stock pursuant to the Securities Purchase Agreement
occurs.
"Companies" shall have the meaning set forth in the preamble
and shall also include Patriot's and Wyndham's successors.
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"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required
to be effected by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a
registration statement of Wyndham, as provided in Section 2(b), which covers
any of the Registrable Securities on an appropriate form in accordance with
the Securities Act and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material
incorporated by reference therein.
"Initial Holder(s)" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean Holders of the Registrable
Securities as to which registration has been requested representing in the
aggregate a majority of such shares beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A
Preferred Stock or the Class A Common Stock, the average, rounded to the
nearest cent ($0.01), of the closing price per share of the Series A Preferred
Stock or the Class A Common Stock, respectively, on the New York Stock
Exchange for twenty consecutive calendar days ending on the trading day
immediately preceding the date in question.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be
a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general
partnership, corporation, trust, joint venture, association, joint stock
company or unincorporated organization.
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"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities and by all other amendments and supplements to such Prospectus,
including post-effective amendments, and in each case including all material
incorporated by reference therein.
"Registrable Securities" shall mean (i) any shares of Class
B Common Stock issued or issuable upon conversion of any shares of Series B
Preferred Stock, (ii) any shares of Series A Preferred Stock issued or
issuable upon conversion of the shares of Series B Preferred Stock, (iii) any
shares of Class A Common Stock issued or issuable upon conversion of any
shares of Series A Preferred Stock described in clause (ii) above, and (iv)
any securities issued or issuable with respect to any Series A Preferred
Stock, Series B Preferred Stock, Class A Common Stock or Class B Common Stock
described in clauses (i), (ii) and (iii) above by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, reorganization or otherwise.
"Registration Expenses" shall mean (i) all registration,
listing, qualification and filing fees (including NASD filing fees), (ii) fees
and disbursements of counsel for Wyndham, (iii) accounting fees incident to
any such registration, (iv) blue sky fees and expenses (including counsel fees
in connection with the preparation of a Blue Sky Memorandum and legal
investment survey), (v) all expenses of any Persons in preparing or assisting
in preparing, printing, distributing, mailing and delivering any Registration
Statement, any Prospectus, any underwriting agreements, transmittal letters,
securities sales agreements, securities certificates and other documents
relating to the performance of and compliance with this Agreement, (vi) the
expenses incurred in connection with making road show presentations and
holding meetings with potential investors to facilitate the distribution and
sale of Registrable Securities which are customarily borne by the issuer, and
(v) all internal expenses of Wyndham (including all salaries and expenses of
officers and employees performing legal or accounting duties), provided,
however, that Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration
statement of Wyndham which covers any Registrable Securities and all
amendments and supplements to any such Registration Statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
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"Required Registration Statement" shall mean a Registration
State ment pursuant to Section 2(a)(i).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Securities Purchase Agreement" shall have the meaning set
forth in the preamble.
"Selling Expenses" shall mean underwriting discounts,
selling commissions and stock transfer taxes applicable to the shares
registered by the Holders, fees and disbursements of counsel for the Holders
retained by them (other than with respect to the fees and disbursements made
in connection with the preparation of a Blue Sky Memorandum and legal
investment survey).
"Series A Preferred Stock" shall have the meaning set forth
in the preamble.
"Series B Preferred Stock" shall have the meaning set forth
in the preamble.
"Shelf Registration" shall mean a registration required to
be effected pursuant to Section 2(a)(ii).
"Shelf Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(ii).
"Underwriter" shall have the meaning set forth in Section
5(a).
"Underwritten Offering" shall mean a sale of securities of
Wyndham to an Underwriter or Underwriters for reoffering to the public.
(b) Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Securities Purchase
Agreement.
Section 2. Registration Under the Securities Act.
(a) Required Registration.
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(i) Right to Require Registration. One or more Holders of
Registrable Securities shall have the right from time to time to request in
writing (a "Request") which Request shall specify the Registrable Securities
intended to be disposed of by such Holders and the intended method of
distribution thereof) that Wyndham register such Holders' Registrable
Securities by filing with the SEC a Required Registration Statement. Upon the
receipt of such a Request, Wyndham will, by the fifth business day thereafter,
give written notice of such requested registration to all Initial Holders of
Registrable Securities, and, not later than the 45th calendar day after the
receipt of such a Request by Wyndham, Wyndham will use all reasonable efforts
to cause to be filed with the SEC a Required Registration State ment covering
the Registrable Securities which Wyndham has been so requested to register by
Holders thereof other than the Initial Holder(s) initiating the Request by
written request given to Wyndham within 9 business days after the giving of
such written notice by Wyndham, providing for the registration under the
Securities Act of the Registrable Securities which Wyndham has been so
requested to register by all such Holders, to the extent necessary to permit
the disposition of such Registrable Securities so to be registered in
accordance with the intended methods of distribution thereof specified in such
Request or further requests, and shall use all reasonable efforts to have such
Required Registration Statement declared effective by the SEC as soon as
practicable thereafter and to keep such Required Registration Statement
continuously effective for a period of at least 60 calendar days (or, in the
case of an Underwritten Offering, such period as the Underwriters shall
reasonably require) following the date on which such Required Registration
Statement is declared effective (or such shorter period which will terminate
when all of the Registrable Securities covered by such Required Registration
Statement have been sold pursuant thereto), including, if necessary, by filing
with the SEC a post-effective amendment or a supplement to the Required
Registration Statement or the related Prospectus or any document incorporated
therein by reference or by filing any other required document or otherwise
supplementing or amending the Required Registration Statement, if required by
the rules, regulations or instructions applicable to the registration form
used by Wyndham for such Required Registration Statement or by the Securities
Act, the Exchange Act, any state securities or blue sky laws, or any rules and
regulations thereunder.
Wyndham shall not be required to effect, pursuant to this
Section 2(a)(i), (i) a Required Registration hereunder unless Holders
beneficially owning Registrable Securities with an aggregate Market Value of
$50 million have initiated or joined in such Request and (ii) more than eight
registrations in the aggregate requested by the Holders, provided that so long
as the Holders collectively beneficially own Registrable Securities with a
Market Value of at least $100 million,
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the Holders shall have the right to require Wyndham to effect additional
Required Registrations provided that the Registrable Securities included
therein have an aggregate Market Value of at least $50 million and provided
further that any Investor proposing to distribute its Registrable Securities
to its partners or shareholders shall have the right to require Wyndham to
effect an additional Required Registrations to facilitate such distribution.
A Request may be withdrawn prior to the filing of the
Required Registration Statement by the Holder(s) which made such Request (a
"Withdrawn Request") and a Required Registration Statement may be withdrawn
prior to the effectiveness thereof by the Holders of a majority of the
Registrable Securities included therein (a "Withdrawn Required Registration"),
and, in either such event, such withdrawal shall be treated as a Required
Registration which shall have been effected pursuant to clause (ii) of the
immediately preceding paragraph, except that the Holders may require Wyndham
to disregard one Withdrawn Request for purposes of such clause (ii).
The Holders shall not, without Wyndham's consent, be
entitled to deliver a Request for a Required Registration after the completion
of the Required Registration if less than 90 calendar days have elapsed since
(A) the effective date of a prior Required Registration Statement, (B) in the
case of a Required Registration which is effected other than by means of an
Underwritten Offering, the date of sale by the Holders of their Registrable
Securities pursuant thereto or (C) the date of withdrawal of a Withdrawn
Required Registration.
Notwithstanding the foregoing, from and after the Closing,
Wyndham may delay the filing of a Required Registration Statement if the Board
of Directors of Wyndham determines that such action is in the best interests
of Wyndham's stockholders, and only for an aggregate number of days, taken
together with any Blackout Period invoked pursuant to Section 2(a)(ii), not to
exceed 60 days in any twelve month period (a "Blackout Period").
The registration rights granted pursuant to the provisions
of this Section 2(a)(i) shall be in addition to the registration rights
granted pursuant to the other provisions of this Section 2.
(ii) Shelf Registration. Promptly upon the Request of the
Holders (but in no event later than the 75th calendar day after the receipt of
such a Request), the Company shall use its reasonable best efforts to promptly
process, file and cause to become effective a Registration Statement on Form
S-3 (the "Shelf") for an
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offering of Registrable Securities to be made on a delayed or continuous basis
pursuant to Rule 415 under the Securities Act (or any similar rule that may be
adopted by the SEC) and permitting sales in ordinary course brokerage or
dealer transactions not involving an Underwritten Offering. Each Holder which
owns, on the date of the initial filing of the Shelf (the "Initial Filing
Date"), Registrable Securities (each such Holder, an "Eligible Holder") shall
have the right to resell such Registrable Securities under the Shelf until the
date that such Eligible Holder sells all of such Registrable Securities,
whether or not under the Shelf (such Eligible Holder's "Termination Date").
The Company agrees to use its reasonable best efforts to keep the Shelf
continuously effective and usable for resale of Registrable Securities until
all Eligible Holders lose their rights to resell Registrable Securities under
the Shelf.
Notwithstanding the foregoing, (A) from the Closing and
until the effectiveness of a Shelf Registration Statement, Wyndham may delay
the filing of a Shelf Registration Statement, or (B) from and after the
effectiveness of a Shelf Registration Statement, each Holder agrees that it
will not effect any sales of the Registrable Securities pursuant to the Shelf
Registration, in either case, if the Board of Directors of Wyndham determines
that such action is in the best interests of Wyndham's stockholders, and only
for a Blackout Period, taken together with any Blackout Period invoked
pursuant to Section 2(a)(i), not to exceed 60 days.
The registration rights granted pursuant to the provisions
of this Section 2(a)(ii) shall be in addition to the registration rights
granted pursuant to the other provisions of this Section 2.
(iii) Priority in Required and Shelf Registrations. If a
Required or Shelf Registration pursuant to this Section 2(a) involves an
Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise
Wyndham in writing (with a copy to each Holder requesting registration) on or
before the date 5 days prior to the date then scheduled for such offering
that, in its opinion, the amount of Registrable Securities requested to be
included in such Required or Shelf Registration exceeds the amount which can
be sold in such offering without adversely affecting the distribution of the
Registrable Securities being offered, Wyndham will include in such Required or
Shelf Registration only the amount of Registrable Securities that Wyndham is
so advised can be sold in such offering; provided, however, that Wyndham shall
be required to include in such Required or Shelf Registration: first, all
Registrable Securities requested to be included in the Required or Shelf
Registration by the Holders and, to the extent not all such Registrable
Securities can be included in such Required Registration, the number of
Registrable Securities to be included shall be
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allocated pro rata on the basis of the number of shares of Preferred Stock or
Common Stock (whichever is applicable) beneficially owned at that time by all
the Holders requesting to participate in the Required or Shelf Registration or
on such other basis as shall be agreed among the Holders, by agreement of the
Majority Holders; and second, if all Registrable Securities requested to be
included in the Required or Shelf Registration by the Holders can be so
included, all other securities requesting, in accordance with any registration
rights which are granted in compliance with Section 6(a), to be included in
such Required Registration which are of the same class as the Registrable
Securities and, to the extent not all such securities can be included in such
Required or Shelf Registration, the number of securities to be included shall
be allocated pro rata among the holders thereof requesting inclusion in such
Required or Shelf Registration on the basis of the number of securities
requested to be included by all such holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time
Wyndham proposes to register any of their Preferred Stock or Common Stock
under the Securities Act (other than (A) any registration of public sales or
distributions solely by and for the account of Wyndham of securities issued
(x) pursuant to any employee benefit or similar plan or any dividend
reinvestment plan or (y) in any acquisition by Wyndham, or (B) pursuant to
Section 2(a) hereof), either in connection with a primary offering for cash
for the account of Wyndham or a secondary offering, Wyndham will, each time it
intends to effect such a registration, give written notice to all Initial
Holders of Registrable Securities at least 10 business days prior to the
initial filing of a Registration Statement with the SEC pertaining thereto,
informing such Initial Holders of its intent to file such Registration
Statement and of the Holders' rights to request the registration of the
Registrable Securities held by the Holders under this Section 2(b) (the
"Company Notice"). Upon the written request of any Initial Holder made within
7 business days after any such Company Notice is given (which request shall
specify the Registrable Securities intended to be disposed of by such Initial
Holder and such Initial Holder's Permitted Transferees and, unless the
applicable registration is intended to effect a primary offering of Preferred
Stock or Common Stock for cash for the account of Wyndham, the intended method
of distribution thereof), Wyndham will use all reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities which
Wyndham has been so requested to register by such Initial Holders to the extent
required to permit the disposition (in accordance with the intended methods of
distribution thereof or, in the case of a registration which is intended to
effect a primary offering for cash for the account of Wyndham, in accordance
with
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Wyndham's intended method of distribution) of the Registrable Securities so
requested to be registered, including, if necessary, by filing with the SEC a
post-effective amendment or a supplement to the Incidental Registration
Statement or the related Prospectus or any document incorporated therein by
reference or by filing any other required document or otherwise supplementing
or amending the Incidental Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by
Wyndham for such Incidental Registration Statement or by the Securities Act,
any state securities or blue sky laws, or any rules and regulations
thereunder; provided, however, that if, at any time after giving written
notice of its intention to register any securities and prior to the effective
date of the Incidental Registration Statement filed in connection with such
registration, Wyndham shall determine for any reason not to register or to
delay registration of such securities, Wyndham may, at its election, give
written notice of such determination to each Initial Holder of Registrable
Securities and, thereupon, (A) in the case of a determination not to register,
Wyndham shall be relieved of their obligation to register any Registrable
Securities in connection with such registration (but not from their obligation
to pay the Registration Expenses incurred in connection therewith), and (B) in
the case of a determination to delay such registration, Wyndham shall be
permitted to delay registration of any Registrable Securities requested to be
included in such Incidental Registration Statement for the same period as the
delay in registering such other securities.
The registration rights granted pursuant to the provisions
of this Section 2(b) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account of
Wyndham, and the sole Underwriter or the lead managing Underwriter, as the
case may be, of such Underwritten Offering shall advise Wyndham in writing
(with a copy to each Initial Holder of Registrable Securities requesting
registration) on or before the date 5 days prior to the date then scheduled
for such offering that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such
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registration exceeds the amount which can be sold in (or during the time of)
such offering without adversely affecting the distribution of the securities
being offered, then Wyndham will include in such registration: first, all the
securities entitled to be sold pursuant to such Registration Statement without
reference to the incidental registration rights of any holder (including the
Holders), and second, the amount of other securities (including Registrable
Securities) requested to be included in such registration that Wyndham is so
advised can be sold in (or during the time of) such offering, allocated, if
necessary, pro rata among the holders (including the Holders) thereof
requesting such registration on the basis of the number of the securities
(including Registrable Securities) beneficially owned at the time by the
holders (including the Holders) requesting inclusion of their securities;
provided, however, that in the event Wyndham will not, by virtue of this
paragraph, include in any such registration all of the Registrable Securities
of any Holder requested to be included in such registration, such Holder may,
upon written notice to Wyndham given within 3 days of the time such Holder
first is notified of such matter, reduce the amount of Registrable Securities
it desires to have included in such registration, whereupon only the
Registrable Securities, if any, it desires to have included will be so
included and the Holders not so reducing shall be entitled to a corresponding
increase in the amount of Registrable Securities to be included in such
registration.
(c) Expenses. Wyndham agrees to pay all Registration
Expenses in connection with (i) each of the registrations requested pursuant
to Section 2(a) and (ii) each registration as to which Holders request
inclusion of Registrable Securities pursuant to Section 2(b). All Selling
Expenses relating to securities registered on behalf of the Holders shall be
borne by the Holders of shares included in such registration, other selling
stockholders and Wyndham pro rata on the basis of the number of shares of
Preferred Stock or Common Stock so registered.
(d) Effective Registration Statement; Suspension. Subject to
the third paragraph of Section 2(a)(i), a Registration Statement pursuant to
Section 2(a) will not be deemed to have become effective (and the related
registration will not be deemed to have been effected) unless it has been
declared effective by the SEC prior to a request by the Holders of a majority
of the Registrable Securities included in such registration that such
Registration Statement be withdrawn; provided, however, that if, after it has
been declared effective, the offering of any Registrable Securities pursuant
to such Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other governmental
agency or court shall have been in effect for at least 30 days, such
Registration Statement will be deemed not to have become effective and the
related registration will not be deemed to have been effected.
(e) Selection of Underwriters. At any time or from time to
time, the Holders of a majority of the Registrable Securities covered by a
Required Registration Statement may elect to have such Registrable Securities
sold in an Underwritten Offering and may select the investment banker or
investment bankers and manager or managers that will serve as lead and
co-managing Underwriters with
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respect to the offering of such Registrable Securities, subject to the consent
of Wyndham which shall not be unreasonably withheld. No Holder may participate
in any Underwritten Offering hereunder unless such Holder (a) agrees to sell
such Holder's securities on the basis provided in any underwriting
arrangements approved by the Persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires, powers of
attorney, custody agreements, indemnities, underwriting agreements and other
documents required under the terms of such Underwritten Offering.
Section 3. Restrictions on Public Sale by Wyndham.
If requested by the sole Underwriter or lead managing
Underwriter(s) in such Underwritten Offering, Wyndham agrees not to effect any
public sale or distribution (other than public sales or distributions solely
by and for the account of Wyndham of securities issued pursuant to any
employee benefit or similar plan or any dividend reinvestment plan) of any
securities during the period commencing on the date Wyndham receives a Request
from any Initial Holder and continuing until (a) for a Registration Statement
relating to such Underwritten Offering other than a Shelf Registration, 90
days after such Registration Statement is declared effective by the SEC and
(b) for a Shelf Registration Statement relating to such Underwritten Offering,
90 days after the commencement of such Underwritten Offering, (or for such
shorter period as the sole or lead managing Underwriter shall request) unless
earlier terminated by the sole Underwriter or lead managing Underwriter(s) in
such Underwritten Offering.
Section 4. Registration Procedures.
In connection with the obligations of Wyndham pursuant to
Section 2, Wyndham shall use all reasonable efforts to effect or cause to be
effected the registration of the Registrable Securities under the Securities
Act to permit the sale of such Registrable Securities by the Holders in
accordance with their intended method or methods of distribution, and Wyndham
shall:
(a) (i) prepare and file a Registration Statement with the
SEC which (x) shall be on Form S-3 (or any successor to such form), if
available, (y) shall be available for the sale or exchange of the Registrable
Securities in accordance with the intended method or methods of distribution
by the selling Holders thereof and (z) shall comply as to form with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith and all other information reasonably
requested by the lead managing Underwriter or sole
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Underwriter, if applicable, to be included therein, (ii) use all reasonable
efforts to cause such Registration Statement to become effective and remain
effective in accordance with Section 2, (iii) use all reasonable efforts to
not take any action that would cause a Registration Statement to contain a
material misstatement or omission or to be not effective and usable for resale
of Registrable Securities during the period that such Registration Statement
is required to be effective and usable and (iv) cause each Registration
Statement and the related Prospectus and any amendment or supplement thereto,
as of the effective date of such Registration Statement, amendment or
supplement (x) to comply in all material respects with any requirements of the
Securities Act and the rules and regulations of the SEC and (y) not to contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading;
(b) subject to paragraph (j) of this Section 4, prepare and
file with the SEC such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such Registration
Statement effective for the applicable period; cause each such Prospectus to
be supplemented by any required prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Securities Act; and comply with the
provisions of the Securities Act with respect to the disposition of all
securities covered by each Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the
selling Holders thereof, as set forth in such registration statement;
(c) furnish to each Holder of Registrable Securities and to
each Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, as many copies of each Prospectus, including each
preliminary Prospectus, and any amendment or supplement thereto and such other
documents as such Holder or Underwriter may reasonably request in order to
facilitate the public sale or other disposition of any Registrable Securities;
Wyndham hereby consents to the use of the Prospectus, including each
preliminary Prospectus, by each Holder of Registrable Securities and each
Underwriter of an Underwritten Offering of Registrable Securities, if any, in
connection with the offering and sale of the Registrable Securities covered by
the Prospectus or the preliminary Prospectus (the Holders hereby agreeing not
to make a broad public dissemination of a form of preliminary Prospec tus
which is designed to be a "quiet filing" without Wyndham's consent, such
consent to not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify
the Registrable Securities, no later than the time the applicable Registration
Statement is
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declared effective by the SEC, under all applicable state securities or "blue
sky" laws of such jurisdictions as each Underwriter, if any, or any Holder of
Registrable Securities covered by a Registration Statement, shall reasonably
request; (ii) use all reasonable efforts to keep each such registration or
qualification effective during the period such Registration Statement is
required to be kept effective; and (iii) do any and all other acts and things
which may be reasonably necessary or advisable to enable each such
Underwriter, if any, and Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; pro vided,
however, that Wyndham shall not be obligated to qualify as a foreign corpora
tion or as a dealer in securities in any jurisdiction in which it is not so
qualified or to consent to be subject to general service of process (other
than service of process in connection with such registration or qualification
or any sale of Registrable Securities in connection therewith) in any such
jurisdiction;
(e) notify each Holder of Registrable Securities promptly,
and, if requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by
the SEC or any state securities authority of any stop order, injunction or
other order or requirement suspending the effectiveness of a Registration
Statement or the initiation of any proceedings for that purpose, (iii) if,
between the effective date of a Registration Statement and the closing of any
sale of securities covered thereby pursuant to any agreement to which Wyndham
is a party, the representations and warranties of Wyndham contained in such
agreement cease to be true and correct in all material respects or if Wyndham
receives any notification with respect to the suspension of the qualification
of the Registrable Securities for sale in any jurisdiction or the initiation
of any proceeding for such purpose and (iv) of the happening of any event
during the period a Registration Statement is effective as a result of which
such Registration Statement or the related Prospectus contains any untrue
statement of a material fact or omits to state any material fact required to
be stated therein or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and
for the Holders of Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of
any order suspending the effectiveness of a Registration Statement at the
earliest possible time;
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(h) upon request, furnish to the sole Underwriter or lead
managing Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, at least one signed copy of each Registration Statement
and any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits;
and furnish to each Holder of Registrable Securities, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto (without docu ments incorporated therein by reference or
exhibits thereto, unless requested);
(i) cooperate with the selling Holders of Registrable
Securities and the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the
provisions of the governing documents thereof) and registered in such names as
the selling Holders or the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, may reasonably
request at least three business days prior to any sale of Registrable
Securities;
(j) upon the occurrence of any event contemplated by
paragraph (e)(iv) of this Section, use all reasonable efforts to prepare a
supplement or post-effective amendment to a Registration Statement or the
related Prospectus, or any document incorporated therein by reference, or file
any other required document so that, as thereafter delivered to the purchasers
of the Registrable Securities, such Prospectus will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading;
(k) enter into customary agreements (including, in the case
of an Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of such
Registrable Securities and in connection therewith:
(1) make such representations and warranties to the Holders
of such Registrable Securities and the Underwriters, if any, in form,
substance
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<PAGE>
and scope as are customarily made by issuers to underwriters in similar
underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reason ably satisfactory to the lead managing Underwriter,
if any, and the Majority Holders of the Registrable Securities being
sold) addressed to each selling Holder and the Underwriters, if any,
covering the matters customarily covered in opinions requested in
sales of securities or underwritten offerings and such other matters
as may be reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from
Wyndham's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary underwritten
offerings;
(4) to the extent requested and customary for the relevant
transac tion, enter into a securities sales agreement with the
Holders and such repre sentative of the selling Holders as the
Majority Holders of the Registrable Securities covered by any
Registration Statement relating to the Registration and providing
for, among other things, the appointment of such representative as
agent for the selling Holders for the purpose of soliciting purchases
of Registrable Securities, which agreement shall be customary in
form, sub stance and scope and shall contain customary
representations, warranties and covenants; and
(5) deliver such customary documents and certificates as may
be reasonably requested by the Majority Holders of the Registrable
Securities being sold or by the managing Underwriters, if any.
The above shall be done (i) at be effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any
registration, and (ii) at each closing under any underwriting or similar
agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the
Initial Holders of the Registrable Securities and any Underwriters
participating in any
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<PAGE>
disposition pursuant to a Registration Statement and any counsel or accountant
retained by such Holders or Underwriters, all relevant financial and other
records, pertinent corporate documents and properties of Wyndham and cause the
respective officers, directors and employees of Wyndham to supply all
information reasonably requested by any such representative, Underwriter,
counsel or accountant in connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Initial Holders of Registrable Securities and to counsel to
such Initial Holders and to the Underwriter or Underwriters of an Underwritten
Offering of Registrable Securities, if any; fairly consider such reasonable
changes in any such document prior to or after the filing thereof as the
counsel to the Holders or the Underwriter or the Underwriters may request and
not file any such document in a form to which the Majority Holders of
Registrable Securities being registered or any Underwriter shall reasonably
object; and make such of the representatives of Wyndham as shall be reasonably
requested by the Holders of Registrable Securities being registered or any
Underwriter available for discussion of such document;
(ii) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration
Statement or a Prospectus, provide copies of such document to counsel for the
Holders; fairly consider such reasonable changes in such document prior to or
after the filing thereof as counsel for such Holders or such Underwriter shall
request; and make such of the representatives of Wyndham as shall be
reasonably requested by such counsel available for discus sion of such
document;
(n) cause all Registrable Securities to be qualified for
inclusion in or listed on the New York Stock Exchange or any securities
exchange on which securities of the same class issued by Wyndham is then so
qualified or listed if so requested by the Majority Holders of Registrable
Securities covered by a Registration Statement, or if so requested by the
Underwriter or Underwriters of an Under written Offering of Registrable
Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11 (a) of the Securities Act and Rule 158
thereunder;
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<PAGE>
(p) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
Under writer in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the
distribution and sale of any Registrable Securities to be offered pursuant to
this Agreement, including without limitation by making road show
presentations, holding meetings with potential investors and taking such other
actions as shall be requested by the Majority Holders of Registrable
Securities covered by a Registration Statement or the lead managing
Underwriter of an Underwritten Offering, in each case subject to the
reasonable availability of Wyndham's executives given their other duties.
Each selling Holder of Registrable Securities as to which
any registra tion is being effected pursuant to this Agreement agrees, as a
condition to the registration obligations with respect to such Holder provided
herein, to furnish to Wyndham such information regarding such Holder required
to be included in the Registration Statement, the ownership of Registrable
Securities by such Holder and the proposed distribution by such Holder of such
Registrable Securities as Wyndham may from time to time reasonably request in
writing.
Each Holder agrees that, upon receipt of any notice from
Wyndham of the happening of any event of the find described in paragraph
(e)(iv) of this Section, such Holder will forthwith discontinue disposition of
Registrable Securities pursuant to the affected Registration Statement until
such Holder's receipt of the copies of the supplemented or amended Prospectus,
contemplated by paragraph (j) of this Section, and, if so directed by Wyndham,
such Holder will deliver to Wyndham (at the expense of Wyndham), all copies in
its possession, other than permanent file copies then in such Holder's
possession, of the Prospectus covering such Registrable Securities which was
current at the time of receipt of such notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by Wyndham. Wyndham agrees, jointly and
severally, to indemnify and hold harmless each Person who participates as an
underwriter (any such Person being an "Underwriter"), each Holder and their
respective partners, directors, officers and employees and each Person, if
any, who controls any Holder or Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act as follows:
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<PAGE>
(i) against any and all losses, liabilities, claims,
damages, judg ments and expenses whatsoever, as incurred, arising out
of any untrue statement or alleged untrue statement of a material
fact contained in any Registration Statement pursuant to which
Registrable Securities were registered under the Securities Act,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, including
all documents incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all losses, liabilities, claims,
damages, judgments and expenses whatsoever, as incurred, to the
extent of the aggregate amount paid in settlement of any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any other claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel), incurred in
investigating, preparing or defending against any litigation,
investigation or proceeding by any governmental agency or body,
commenced or threatened, in each case whether or not such Person is a
party, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph (i) or
(ii) above;
provided, however, that this indemnity agreement does not apply to any Holder
or Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to Wyndham by such Holder or Underwriter
expressly for use in a Registration
19
<PAGE>
Statement (or any amendment thereto) or any Prospectus (or any amendment or
supple ment thereto).
(b) Indemnification by Holders. (i) Each selling Holder
severally agrees to indemnify and hold harmless Wyndham, each Underwriter and
the other selling Holders, and each of their respective partners, directors,
officers and employ ees (including each officer of Wyndham who signed the
Registration Statement), and each Person, if any, who controls Wyndham, any
Underwriter or any other selling Holder within the meaning of Section 15 of
the Securities Act, against any and all losses, liabilities, claims, damages,
judgments and expenses described in the indemnity contained in paragraph (a)
of this Section (provided that any settlement of the type described therein is
effected with the written consent of such selling Holder), as incurred, but
only with respect to untrue statements or alleged untrue statements of a
material fact contained in any Prospectus or the omissions, or alleged
omissions therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to Wyndham by such selling Holder expressly for
use in such Registration Statement (or any amendment thereto) or such
Prospectus (or any amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified
party or parties shall give reasonably prompt notice to each indemnifying
party or parties of any action or proceeding commenced against it in respect
of which indemnity may be sought hereunder, but failure so to notify an
indemnifying party or parties shall not relieve it or them from any liability
which it or they may have under this indemnity agreement, except to the extent
that the indemnifying party is materially prejudiced by such failure to give
notice. If the indemnifying party or parties so elects within a reasonable
time after receipt of such notice, the indemnifying party or parties may
assume the defense of such action or proceeding at such indemnifying party's
or parties' expense with counsel chosen by the indemnifying party or parties
and approved by the indemnified party defendant in such action or proceeding,
which approval shall not be unreasonably withheld; provided, however, that, if
such indemnified party or parties determine in good faith that a conflict of
interest exists and that therefore it is advisable for such indemnified party
or parties to be represented by separate counsel or that, upon advice of
counsel, there may be legal defenses available to it or them which are
different from or in addition to those available to the indemnifying party,
then the indemnifying party or parties shall not be entitled to assume such
defense and the indemnified party or parties shall be entitled to separate
counsel (limited in each jurisdiction to one
20
<PAGE>
counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement) at the indemnifying party's or parties' expense.
If an indemnifying party or parties is not so entitled to assume the defense
of such action or does not assume such defense, after having received the
notice referred to in the first sentence of this paragraph, the indemnifying
party or parties will pay the reasonable fees and expenses of counsel for the
indemnified party or parties (limited in each jurisdiction to one counsel for
all Underwriters and another counsel for all other indemnified parties under
this Agreement). No indemnifying party or parties will be liable for any
settlement effected without the written consent of such indemnifying party or
parties, which consent shall not be unreasonably withheld. If an indemnifying
party is entitled to assume, and assumes, the defense of such action or
proceeding in accordance with this paragraph, such indemnifying party or
parties shall not, except as otherwise provided in this subsection (c), be
liable for any fees and expenses of counsel for the indemnified parties
incurred thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms in
respect of any losses, liabilities, claims, damages, judgments and expenses
suffered by an indemnified party referred to therein, each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, liabilities, claims, damages, judgments and expenses in such
proportion as is appropriate to reflect the relative fault of Wyndham on the
one hand and of the liable selling Holders (including, in each case, that of
their respective officers, directors, employees and agents) on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages, judgments or expenses, as well as any other
relevant equitable considerations. The relative fault of Wyndham on the one
hand and of the liable selling Holders (including, in each case, that of
their respective officers, directors, employees and agents) on the other shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Wyndham,
on the one hand, or by or on behalf of the selling Holders, on the other, and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable
by a party as a result of the losses, liabilities, claims, damages, judgments
and expenses referred to above shall be deemed to include, subject to the
limitations set forth in paragraph (c) of this Section, any legal or other
fees or expenses reasona-
21
<PAGE>
bly incurred by such party in connection with investigating or defending any
action or claim.
(ii) Wyndham and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations
referred to in sub-paragraph (i) above. Notwithstanding the provisions of this
paragraph (d), in the case of distributions to the public, an indemnifying
Holder shall not be required to contribute any amount in excess of the amount
by which (A) the total price at which the Registrable Securities sold by such
indemnifying Holder and its affiliated indemnifying Holders and distributed to
the public were offered to the public exceeds (B) the amount of any damages
which such indemnifying Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11 (f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
(iii) For purposes of this Section, each Person, if any, who
controls a Holder or an Underwriter within the meaning of Section 15 of the
Securities Act (and their respective partners, directors, officers and
employees) shall have the same rights to contribution as such Holder or
Underwriter; and each director of Wyndham, each officer of Wyndham who signed
the Registration Statement, and each Person, if any, who controls Wyndham
within the meaning of Section 15 of the Securities Act, shall have the same
rights to contribution as Wyndham.
Section 6. Miscellaneous.
(a) Inconsistent Agreements. Wyndham is not a party to, and
will not on or after the date of this Agreement enter into, any agreement
which conflicts with the provisions of this Agreement nor has Wyndham entered
into any such agreement, and Wyndham will not on or after the date of this
Agreement modify in any manner adverse to the Holders any such agreement;
provided, however, that nothing in this sentence shall prohibit Wyndham from
granting registration rights, which become exercisable from and after the
Closing, to any Person (a "Third Party") who becomes an owner of shares of any
of Wyndham's capital stock after the date hereof (including granting
incidental registration rights with respect to any Registration Statement
required to be filed or maintained hereunder) if and only if (i) the
Third-Party's registration rights (including, without limitation, demand
registration rights) provide to the Holders of Registrable Securities who
seek to
22
<PAGE>
participate in such registration (whether or not such registration is
initiated hereunder) rights no less favorable to such Holders than those
rights provided to the Holders hereunder as if such registration were a
Required Registration (including, without limitation, the priority provisions
contained in Section 2(a)(iii)), provided, further, however, that if such
registration is not initiated by the Initial Holders such registration shall
not be deemed one of the eight Required Registrations for purposes of the
limitations contained in the second paragraph of Section 2(a)(i), and (ii) the
Third Party is required to enter into the agreements provided for in Section 3
hereof (as if it were Wyndham) on the terms and for the period applicable to
Wyndham (including preventing sales pursuant to Rule 144 under the Securities
Act) if requested by the sole Underwriter or lead managing Underwriter in an
Underwritten Offering initiated by Holders of Registrable Securities pursuant
to Section 2(a). The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of Wyndham's other issued and outstanding securities under any such
agreements.
(b) Amendments and Waivers. The provisions of this
Agreement, including the provisions of this sentence, may not be amended,
modified or supple mented, and waivers or consents to departures from the
provisions hereof may not be given unless Wyndham has obtained the written
consent of a majority of the Holders and, if any such amendment, modification,
supplement, waiver or consent would adversely affect the rights of any Holder
hereunder, the written consent of each Holder which is affected shall be
obtained; provided, however, that nothing herein shall prohibit any amendment,
modification, supplement, waiver or consent the effect of which is limited
only to those Holders who have agreed to such amendment, modification,
supplement, waiver or consent.
(c) Notices. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to Wyndham by means of a
notice given in accordance with the provisions of this paragraph (c), which
address initially is, with respect to each Holder as of the date hereof, the
address set forth next to such Holder's name on the signature pages hereof
with a copy to Randall H. Doud, Esq., telecopier number (212) 735-2000, and
with respect to each Holder who becomes such after the date hereof, the
address of such Holder in the stock records of Wyndham, (ii) if to Wyndham, at
1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207, telecopier number
(214) 863-1527, Attention: General Counsel, with a copy to Gilbert G. Menna,
P.C., telecopier number (617) 523-1231, and thereafter at such other address,
notice of which is given in accordance with the provisions of this paragraph.
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<PAGE>
Notwithstanding the foregoing, Wyndham shall not be obligated to provide any
notice to any Holder which is not an Initial Holder except with respect to a
Required or Incidental Registration Statement which has been filed and
pursuant to which such Holder is identified as a selling stockholder.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to a courier guaranteeing overnight
delivery. Notwithstanding the foregoing, nothing in this Section 6(c) is
intended to enlarge the class of Persons which are Holders, as defined in the
preamble of this Agreement, and thus entitled to the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to
the benefit of and be binding upon the successors, assigns and transferees of
each of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and to
receive the benefits hereof. Notwithstanding the foregoing, nothing in this
Section 6(d) is intended to enlarge the class of Persons which are Holders, as
defined in the preamble of this Agreement, and thus entitled to the rights
granted hereunder. For purposes of this Agreement, "successor" for any entity
other than a natural person shall mean a successor to such entity as a result
of such entity's merger, consolidation, liquidation, dissolution, sale of
substantially all of its assets, or similar transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting
Registrable Securities. The provisions of this Agreement shall apply, to the
full extent set forth herein with respect to the Registrable Securities, to
any and all securities or capital stock of Wyndham or any successor or assign
of Wyndham (whether by merger, consolidation, sale of assets or otherwise)
which may be issued in respect of, in exchange for, or in substitution of such
Registrable Securities, by reason of any dividend, split, issuance, reverse
split, combination, recapitalization, reclassification, merger, consolidation
or otherwise. Upon the occurrence of any of such events, Preferred Stock and
Common Stock amounts hereunder shall be appropriately adjusted if necessary.
24
<PAGE>
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which, when so executed and delivered, shall be
deemed to be an original, but all of which counterparts, taken together, shall
constitute one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this
Agreement are for convenience of reference only and shall not limit or
otherwise affect the meaning of terms contained herein. Unless the context of
this Agreement otherwise requires: (1) words of any gender shall be deemed to
include each other gender; (2) words using the singular or plural number shall
also include the plural or singular number, respectively; (3) the words
"hereof", "herein" and "hereunder" and words of similar import when used in
this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement, and Article, Section, paragraph and
clause references are to the Articles, Sections, paragraphs and clauses to
this Agreement unless otherwise specified; (4) the word "including" and words
of similar import when used in this Agreement shall mean "including, without
limitation," unless otherwise specified; (5) "or" is not exclusive; and (6)
provisions apply to successive events and transactions.
(h) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained
herein, or the application thereof in any circumstances, is held invalid,
illegal or unenforceable in any respect for any reason, the validity, legality
and enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any
way impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOV
ERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE
(WITHOUT GIVING EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge
that there would be no adequate remedy at law if any party fails to perform in
any material respect any of its obligations hereunder, and accordingly agree
that each party, in addition to any other remedy to which it may be entitled
at law or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the
terms and conditions of this Agreement in any court of the United States or
any State thereof having jurisdiction.
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<PAGE>
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between Wyndham, on the one
hand, and the other parties to this Agreement, on the other, with respect to
such subject matter.
* * *
26
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By:
--------------------------------
Name:
Title:
27
<PAGE>
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc.,
its General Partner
Address:
1301 Avenue of the Americas
38th Floor
New York, New York 10019 By: ____________________________________
Attention: Name:
Telecopier Number: Title:
(212) 261-4060
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV,
Inc., its General Partner
Address:
1301 Avenue of the Americas
38th Floor
New York, New York 10019 By: ____________________________________
Attention: Name:
Telecopier Number: Title:
(212) 261-4060
28
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: _____________________________________
Telecopier Number: Name:
(617) 227-3514 Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: _____________________________________
Telecopier Number: Name:
(617) 227-3514 Title:
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: _____________________________________
Telecopier Number: Name:
(617) 227-3514 Title:
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: _____________________________________
Telecopier Number: Name:
(617) 227-3514 Title:
29
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc.,
1 Federal Street, 26th Floor its General Partner
Boston, MA 02110
Attention: By: _____________________________________
Telecopier Number: Name:
(617) 457-0499 Title:
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
Address:
1995 University Avenue
Suite 550
Berkeley, CA 94704 By: _____________________________________
Attention: Name:
Telecopier Number: Title:
(510) 849-1209
<PAGE>
Exhibit 5
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made
as of this __ day of June, 1999, by and among (i) Thomas H. Lee Equity Fund
IV, L.P., Thomas H. Lee Foreign Fund IV, L.P. THL-CCI Limited Partnership,
Apollo Real Estate Investment Fund III, L.P. and Apollo Investment Fund, IV,
L.P. (collectively, the "Assignor"), (ii) Chase Equity Associates, L.P. (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 "Origi nal 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 Securi ties 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 250,000 Shares (the "Subject Shares") and the
Assignee desires to accept such assignment and assume such obligation.
NOW, THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the receipt and adequacy of
which is hereby acknowledged:
1. Assignment and Assumption.
(a) The Assignor hereby assigns its right and obligation to
purchase the Subject Shares under the Securities Purchase Agreement to the
Assignee.
<PAGE>
(b) The Assignee, for the benefit of the Companies, each of
the Original Investors and any other persons who become Investors under the
Securities Purchase Agreement, hereby accepts the assignment of the Assignor's
right, and assumes its obligation, to purchase the Subject Shares under the
Securities Purchase Agreement and agrees to pay at the Closing all amounts due
under the Securities Purchase Agreement in respect of the Subject Shares. The
Assignee, for the benefit of the Companies, each of the Original Investors and
any other persons who become Investors under the Securities Purchase
Agreement, hereby makes the representations and warranties contained in
Article IV of the Securities Purchase Agreement and agrees to perform and
discharge all of the covenants, agreements, terms, provisions, conditions and
other obligations to be performed by an Investor under the Securities Purchase
Agreement as if the Assignee were an Investor originally named in the
Securities Purchase Agreement. Notwithstanding the foregoing, the Assignee
agrees that it will not have any rights under Section 6.12 of the Securities
Purchase Agreement.
(c) The Assignee hereby represents and warrants to each of
the Original Investors and any other persons who become Investors under the
Securities Purchase Agreement that (i) the Assignee has received copies of the
Securities Purchase Agreement and in making its determination to purchase the
Subject Shares and undertake the obligations of an Investor under the
Securities Purchase Agreement has relied solely on the representations and
warranties, covenants and other agreements of the Companies contained therein
and not on any representations, warranties or undertakings by the Assignor or
any of the other Original Investors, (ii) the Assignee currently has, or prior
to the Closing will have, sufficient funds to purchase the Subject Shares as
contemplated by the Securities Purchase Agreement, and (iii) the Assignee's
purchase of the Subject Shares will qualify as a passive investment by the
Assignee for purposes of the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended (the "HSR Act"), and accordingly the Assignee is not required
to make any filings under the HSR Act to purchase the Subject Shares.
(d) The Assignee agrees, for the benefit of each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement, (i) to fulfill its obligations under the
Securities Purchase Agreement assumed hereunder, including without limitation
those contained in Article VII, (ii) not to assign without the prior written
consent of the Original Investors any of its rights or obligations under this
Assignment and Assumption and (iii) to be a party to and fulfill its
obligations under the Stockholders' Agreement in the form delivered to the
Assignee by the Assignor.
2
<PAGE>
(e) (i) The Assignee agrees, for the benefit of each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement, to pay the purchase price for the Subject
Shares into escrow (the "Escrow Amount") no later than June 22, 1999, which
Escrow Amount shall be held in an escrow account, with Apollo Management IV,
L.P. acting as escrow agent (the "Escrow Agent"), pending the Closing. The
Escrow Agent shall be permitted to invest the Escrow Amount in the Chase Vista
Premiere U.S. Government Money Fund or similar investments until the Escrow
Amount is paid to the Company as purchase price for the Subject Shares upon
the Closing; provided, however, that if the Closing does not occur by July 15,
1999, the Escrow Agent shall release to the Assignee the amount of the Escrow
Amount which it deposited with the Escrow Agent. Any interest or other income
received on the on the Escrow Amount shall be distributed to the Assignee in
proportion to its contribution to the Escrow Amount, as soon as practicable,
but no more than three business days, following the Closing.
(ii) The Escrow Agent shall not be liable, except for its
own gross negligence or willful misconduct and, except with respect to claims
based upon such gross negligence or willful misconduct that are successfully
asserted against the Escrow Agent, and the Assignee hereto shall indemnify and
hold harmless the Escrow Agent and its officers, directors, employees and
agents from and against any and all losses, liabilities, claims, actions,
damages and expenses, including reasonable attorneys' fees and disbursements,
arising out of and in connection with its acting as escrow agent under this
Assignment. Without limiting the foregoing, the Escrow Agent shall in no event
be liable in connection with its investment or reinvestment of any cash held
by it hereunder in good faith, in accordance with the terms hereof, including
without limitation any liability for any delays (not resulting from its gross
negligence or willful misconduct) in the investment or reinvestment of the
Escrow Amount or any loss of interest incident to any such delays.
(iii) The Assignee shall pay or reimburse the Escrow Agent
upon request for any taxes relating to income derived from the Escrow Amount
and shall indemnify and hold harmless the Escrow Agent from any amounts that
it is obligated to pay in the way of such taxes. Any payments of income from
this Escrow Account shall be subject to withholding regulations then in force
with respect to United States taxes.
(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
3
<PAGE>
determination made by the Lead Investors under the Securities Purchase
Agreement and any related documentation shall be binding upon the Assignee as
if the Assignee had consented thereto, including without limitation any
determination as to whether closing conditions have been satisfied or waived,
any amendments or waivers of provisions of the Securities Purchase Agreement
and any determination or exercise of remedies by the Investors under the
Securities Purchase Agreement.
(g) The Companies acknowledge their consent to the
assignment and assumption effected hereby and agree that (i) the Assignor
shall no longer be obligated to purchase the Subject Shares under the
Securities Purchase Agreement and (ii) the Assignee shall be entitled to rely
on the Companies' representations and warranties, covenants and other
agreements under the Securities Purchase Agreement as if the Assignee were an
Investor originally named in the Securities Purchase Agreement.
(h) The Original Investors other than the Assignor hereby
consent to this Assignment and Assumption and acknowledge that the assignment
contemplated hereby will limit their collective right to make assignments
under the Securities Purchase Agreement.
(i) Notwithstanding anything to the contrary herein, the
Assignee agrees that, upon its payment for the Subject Shares in accordance
with the terms of this Assignment and Assumption and the Securities Purchase
Agreement, it shall only be entitled to receive the Subject Shares from the
Companies and shall not, under any circumstances, be entitled to receive any
fees or expenses pursuant to the Securities Purchase Agreement or otherwise
from the Companies, the Original Investors or any other persons that may
become Investors under the Securities Purchase Agreement, except that the
Assignee will be entitled to receive and the Companies hereby agree to pay an
equity transaction funding fee of $262,500 at the time the Subject Shares are
purchased by the Assignee. 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 the Companies in connection with the
transactions contemplated by the Securities Purchase Agreement and is not acting
as counsel to the Assignee in connection therewith.
4
<PAGE>
(b) The Assignee acknowledges that PricewaterhouseCoopers
LLP is advising the Original Investors as to certain matters in connection
with the transactions contemplated by the Securities Purchase Agreement and
is not acting as advisor to the Assignee in connection therewith.
3. Binding Effect. This Assignment and Assumption shall
inure to the benefit of and be binding on the Assignee, the Assignor, the
Companies, the Original Investors and their respective permitted successors
and assigns, effective immediately upon delivery.
4. Governing Law. This Assignment and Assumption shall be
governed and construed in accordance with the laws of the State of New York,
without regard to any applicable principles of conflicts of law.
5
<PAGE>
IN WITNESS WHEREOF, parties hereto have caused this Assignment
and Assumption to be executed as of the date first above written.
ASSIGNOR:
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:
6
<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:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
------------------------------------------
Name:
Title:
7
<PAGE>
ASSIGNEE:
CHASE EQUITY ASSOCIATES, L.P.
Federal Tax ID No.:13-3371826
By:
------------------------------------------
Name:
Title:
8
<PAGE>
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By:
- ----------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By:
- ----------------------------------
Name:
Title:
9
<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:
10
<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:
11
<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:
12
<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By:
----------------------------------
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By:
----------------------------------
Name:
Title:
13
