SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1 AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
Wyndham International, Inc.
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(Name of Issuer)
Class A Common Stock, $0.01 par value per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
983101 10 6
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(CUSIP Number)
Dhananjay M. Pai
PaineWebber Capital Inc.
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
(212) 713-1213
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
With a copy to:
Thomas Patrick Dore, Jr., Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4136
June 30, 1999
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box: [ ]
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CUSIP No. 983101 10 6 13D Page 1 of 14 Pages
NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
1
PW Hotel I, LLC
Tax ID No. 13-4066735
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
2 (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,910,361 (see Item 5)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH
10 SHARED DISPOSITIVE POWER
2,910,361 (see Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,910,361 (see Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
14 TYPE OF REPORTING PERSON
OO
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CUSIP No. 983101 10 6 13D Page 2 of 14 Pages
NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
1
PaineWebber Capital Inc.
13-3261841
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP.
2 (a) |_|
(b) |X|
3 SEC USE ONLY
4 SOURCE OF FUNDS OO
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) |_|
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF 0
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 2,910,361 (see Item 5)
EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH
10 SHARED DISPOSITIVE POWER
2,910,361 (see Item 5)
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,910,361 (see Item 5)
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.7%
14 TYPE OF REPORTING PERSON
CO
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Item 1. Security and Issuer.
The class of equity securities to which this statement relates is
the Class A Common Stock, $0.01 par value per share (the "Shares"), of Wyndham
International, Inc., a Delaware corporation ("Wyndham"). The principal executive
offices of Wyndham are located at 1950 Stemmons Freeway, Suite 6001, Dallas,
Texas 75207.
Item 2. Identity and Background.
This statement is being filed jointly on behalf of the following
persons (collectively, the "Reporting Persons"): (1) PW Hotel I, LLC, a Delaware
limited liability company ("PW Hotel") and (2) PaineWebber Capital Inc., a
Delaware corporation.
The address of the principal business and the principal office of
each Reporting Person is 1285 Avenue of the Americas, New York, New York 10019.
The name, business address, present principal occupation or employment, and
citizenship of each director and executive officer of each Reporting Person is
set forth on Schedule A.
PW Hotel is principally engaged in the business of investment in
securities. The managing member of PW Hotel is PaineWebber Capital Inc., which
is principally in the business of engaging in venture capital, merchant banking
and other proprietary investment on a principal basis.
During the last five years, neither of the Reporting Persons, to
the best of their knowledge, nor any of the persons listed on Schedule A
attached hereto, have been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors) or have been a party to a civil proceeding
of a judicial or administra tive body of competent jurisdiction and as a result
of such proceeding was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibit ing or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a Securities Purchase Agreement, dated as of February
18, 1999 and amended as of June 28, 1999 (the "Securities Purchase Agreement"),
by and among Wyndham, Patriot American Hospitality, Inc. ("Patriot"), Patriot
Ameri can Hospitality Partnership, L.P. ("Patriot OP"), Wyndham International
Operating Partnership, L.P. and the investors set forth on the signature pages
thereto (the "Original Investors"), the Original Investors were entitled,
subject to compliance with the terms and conditions set forth therein to
purchase 10,000,000 shares of Series B Convertible Preferred Stock, $0.01 par
value per share (the "Series B
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Preferred Stock"), of Wyndham for aggregate consideration of $1,000,000,000.
Certain of the Original Investors subsequently entered into Assignment and
Assump tion Agreements (each an "Assignment", collectively, the "Assignments")
with certain other Investors, including PW Hotel, and others who are parties to
the Stockholders' Agreement described below (collectively, the "Co-Investors"
and, together with the Original Investors, the "Investors"), pursuant to which
such Original Investors assigned to the Co-Investors their right to purchase
certain of the shares of Series B Preferred Stock that such Original Investors
were entitled to purchase under the Securities Purchase Agreement.
Pursuant to the Securities Purchase Agreement and the Assignment
to which PW Hotel is a party, PW Hotel purchased an aggregate of 250,000 shares
of Series B Preferred Stock for an aggregate cash purchase price of $25,000,000.
PW Hotel obtained funds to make the purchase described herein
through capital contributions from its members. PaineWebber Capital Inc.
obtained funds to contribute to PW Hotel for the purchase of such shares through
internally generated funds.
Item 4. Purpose of Transactions.
PW Hotel has purchased the Series B Preferred Stock for general
investment purposes and retains the right to change its investment intent.
Subject to market conditions and other factors, including the restrictive
provisions of the Securities Purchase Agreement and the Stockholders' Agreement
described below, PW Hotel may acquire or dispose of securities of Wyndham from
time to time in future open-market, privately negotiated or other transactions.
Such acquisitions could include purchases pursuant to the Rights Offering (as
defined below) or pursuant to the exercise of preemptive rights as described
below. In addition, PW Hotel may maintain various credit facilities and
arrangements, including customary margin arrangements, with banks and other
financial institutions in the ordinary course of business and in connection
therewith provide to the lenders as collateral thereunder the shares of Series B
Preferred Stock purchased by PW Hotel.
The Series B Preferred Stock is convertible, at the option of the
holder, into shares of Wyndham Class B Common Stock, par value $0.01 per share
(the "Class B Common Stock"), which in turn is convertible on a one for one
basis into the Shares. For each share of Series B Preferred Stock converted into
Class B Common Stock, the holder is entitled to receive that number of shares of
Class B Common Stock equal to $100.00 divided by the conversion price of the
Series B Preferred Stock, which is currently $8.59 per share, subject to
adjustment, in addition to accrued but unpaid dividends. Each share of the
Series B Preferred Stock may also be converted into one share of Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Preferred
Stock"), of Wyndham and, other than certain permitted transfers under the
Securities Purchase Agreement, is mandatorily con verted into one share of
Series A Preferred Stock if it is transferred to unaffiliated
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transferees. The Series A Preferred Stock will be convertible into Shares at the
same conversion rate from time to time in effect at which the Series B Preferred
Stock is convertible into shares of Class B Common Stock.
Both the Series A Preferred Stock and the Series B Preferred
Stock will pay quarterly dividends at the rate per annum of 9.75% of the stated
amount thereof, with a portion paid in cash and a portion paid in additional
shares of Series A Preferred Stock or Series B Preferred Stock, respectively.
The Series A Preferred Stock will vote on an as converted basis with the Shares
on matters submitted to the holders of the Shares and the Series B Preferred
Stock will vote as a separate class on certain specified matters, including
specified "change of control" events occurring prior to June 30, 2005. The terms
of the Series A Preferred Stock are otherwise identical to the terms of the
Series B Preferred Stock, except that the Series A Preferred Stock will not have
voting rights, except as required by law or as necessary to permit its listing.
Under the terms of the Securities Purchase Agreement and the
Certificate of Designation for the Series B Preferred Stock (the "Certificate of
Designation"), during the 170-day period following the closing of the
transactions contemplated by the Securities Purchase Agreement, which occurred
on June 30, 1999, Wyndham has the right to redeem on a pro rata basis up to
3,000,000 of the 10,000,000 shares of Series B Preferred Stock currently held by
the Investors with the proceeds of (i) a rights offering in which the holders of
Wyndham's common stock and Patriot OP's limited partnership interests may
purchase for cash up to 3,000,000 shares of Series A Preferred Stock (the
"Rights Offering") and/or (ii) the sale of specified assets of Wyndham in excess
of a fixed price at or prior to the closing of the Rights Offering, in each case
at a redemption price of 102% of the stated amount of $100 per share, plus
accrued but unpaid dividends to the redemp tion date.
Under the terms of the restated certificate of incorporation of
Wyndham (the "Restated Certificate"), on June 30, 1999, the Board of Directors
of Wyndham (the "Board") was reconstituted to consist of 19 directors, including
eight Class A directors designated by the Board as it existed prior to being
reconstituted (the "Prior Board"), eight Class B directors designated by the
Investors and three Class C directors mutually designated by the existing Board
of Directors and the Investors. The Board is further classified by term of
office into three classes of directors, each serving a staggered term of three
years, until the annual meeting of Wyndham's stockholders in 2002.
The number of Class B directors that the Investors are entitled
to designate will decrease from seven to zero based on certain specified
beneficial ownership percentages of Wyndham Common Stock as more fully set forth
in the Restated Certificate.
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<PAGE>
The Securities Purchase Agreement provides that until the June
30, 2004, so long as the Investors collectively own more than 15% of the fully
diluted Wyndham common stock, in the event that Wyndham proposes to sell Wyndham
common stock or securities convertible into Wyndham common stock (other than in
the Rights Offering or during the six month period following June 30, 1999),
each of the Investors will have the right to purchase a portion of the
securities proposed to be sold equal to its percentage ownership of Wyndham's
outstanding securities. To the extent that one or more of the Investors does not
exercise its purchase rights in full, the unexercised portion of the Investor's
purchase rights will be allocated pro rata to the other Investors.
The Securities Purchase Agreement also provides that, during the
six year period following June 30, 1999, the Investors will not (i) acquire any
shares of Wyndham common stock or securities convertible for Wyndham common
stock, unless the securities are acquired (a) directly from Wyndham in a
transaction approved by a majority of the Class A and Class C directors, (b) as
a dividend on the Series B Preferred Stock or upon conversion of the Series B
Preferred Stock, (c) as part of Wyndham's sale of Series A Preferred Stock or
upon conversion of the Series A Preferred Stock, (d) by an affiliate of any
Investor over whom the Investor does not control voting decisions or hold over
50% of the outstanding voting securities, (e) as non-voting preferred stock of
Wyndham, (f) in the ordinary course of the Investor's market-making activities
or as investment adviser or broker-dealer or (g) by an employee, partner or
stockholder of an Investor for his individual account if the individual does not
acquire beneficial ownership of over 100,000 shares of Wyndham common stock; or
(ii) make any public announcement or proposal or solicitation of proxies
concerning any business combination, extraordinary transac tion, restructuring
or recapitalization involving Wyndham or any affiliate of Wyndham or propose to
seek representation on the Board or seek to control or influence management, the
Board or policies of Wyndham or an affiliate of Wyndham.
As contemplated by the Securities Purchase Agreement, the Board
has adopted a shareholder rights plan (the "Rights Plan") under which preferred
stock purchase rights distributed to Wyndham's stockholders will become
exercisable in the event a third party (other than a "Grandfathered Person")
acquires beneficial ownership of at least 10% of the outstanding shares of
Wyndham common stock. Each Investor will be a "Grandfathered Person" for so long
as it complies with the standstill provisions of the Securities Purchase
Agreement described above.
On June 29, 1999, the Investors entered into a Stockholders'
Agree ment (the "Stockholders' Agreement"), pursuant to which each of (i) Apollo
Manage ment IV, L.P. and Apollo Real Estate Management IV, L.P. (collectively,
the "Apollo Stockholder") and (ii) THL Equity Advisors IV, LLC (the "Lee Stock
holder") (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
8
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are entitled to designate fewer than eight Class B directors, the right to
designate will be allocated as between the Apollo Stockholder and the Lee
Stockholder based on a specified formula. For so long as the Stockholders'
Agreement is in effect, each of the Investors has agreed to vote its Shares and
Series B Preferred Stock in favor of each of the director nominees of the Lead
Stockholders.
The Stockholders' Agreement provides that, for a five year period
from June 29, 1999, no Investor may offer, sell or otherwise dispose of its
shares of Series B Preferred Stock without the consent of each of the Lead
Stockholders, except for (i) transfers to affiliated transferees, (ii) transfers
of shares pursuant to the registration rights, tag along rights or drag along
provisions described below, (iii) bona fide pledges of shares to a bank,
financial institution or other lender and (iv) certain other permitted
transfers, subject in 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
Registra tion Rights Agreement (the "Registration Rights Agreement") with
Wyndham, pursuant to which the Investors have the right to require Wyndham to
register shares of Wyndham preferred stock or shares of Wyndham common stock
into which the Wyndham preferred stock converts in one or more registrations
and/or pursuant to a shelf registration statement. The Stockholders' Agreement
provides, however, that (i) any request for a registration by Wyndham on or
prior to the third anniversary of the date of the Stockholders' Agreement shall
only be made by or with the consent of both Lead Stockholders, (ii) any request
for a registration by Wyndham between the third and fifth anniversaries of the
date of the Stockholders' Agreement may only be made by the Apollo Stockholder,
Lee Stockholder or Beacon Capital Partners, L.P. and its affiliates and (iii)
any request for a shelf registration statement on or prior to the fifth
anniversary of the date of the Stockholders' Agreement may be made only by or
with the consent of the Lead Stockholders.
The Securities Purchase Agreement, the Assignment to which PW
Hotel is a party, the Stockholders' Agreement and the Registration Rights
Agreement described above are filed as exhibits to this Schedule 13D and are
incorporated herein by reference. The Certificate of Designation, the Restated
Certificate and the Rights Plan have been filed as exhibits to filings by
Wyndham with the Securities and Exchange Commission. The foregoing descriptions
of such agreements are not intended to be complete and are qualified in their
entirety by reference to such exhibits.
Item 5. Interest in Securities of the Issuer.
(a) and (b). By virtue of the Stockholders' Agreement and the
relationships described herein, the Investors may be deemed to constitute a
"group"
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within the meaning of Rule 13d-5(b) under the Exchange Act. As of the date
hereof, to the knowledge of each Reporting Person, the Investors collectively
own an aggregate of 116,414,435 Shares, or 41.2% of the Outstanding Shares (as
defined below). For purposes of calculating ownership percentages in this
Schedule 13D, the number of "Outstanding Shares" includes (i) the 165,886,524
Shares outstanding on July 9, 1999, based on information provided to the
Investors by Wyndham and (ii) the Shares issuable upon conversion of the Series
B Preferred Stock held by the Investor or Investors whose ownership is being
measured, excluding for such purposes the Shares issuable upon conversion of any
other shares of Series B Preferred Stock or other convertible securities. Each
Reporting Person expressly disclaims beneficial ownership of those Investors'
Shares held by any other members of such group or of Shares held individually by
certain directors or executive officers of certain of the Investors.
PW Hotel has obtained direct beneficial ownership of 2,910,361
Shares pursuant to the Securities Purchase Agreement and the Assignment to which
PW Hotel is a party, representing approximately 1.7% of the Outstanding Shares.
PW Hotel has shared voting and shared dispositive power with respect to such
Shares.
As managing member of PW Hotel, PaineWebber Capital Inc. has
obtained direct beneficial ownership of 2,910,361 Shares, representing approxi
mately 1.7% of the Outstanding Shares. PaineWebber Capital Inc. has shared
voting and shared dispositive power with respect to such Shares.
All of the foregoing information as to number of Shares and
percent age of Outstanding Shares beneficially owned is set forth without giving
effect to the accrual of dividends payable in additional shares of Series B
Preferred Stock. In addition, as discussed above, the numbers of Shares listed
above are each subject to reduction of up to 30% if redeemed by Wyndham with the
proceeds of the Rights Offering, depending upon the participation of Wyndham's
stockholders in the Rights Offering.
Neither the filing of this Schedule 13D nor any of its contents
shall be deemed to constitute an admission that either Reporting Person is the
beneficial owner of any of the Shares other than those which it has acquired as
stated above.
(c) The responses to Items 3 and 4 of this Schedule 13D are
incorpo rated herein by reference.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
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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 each Reporting Person, there are no contracts, arrangements, under
standings or relationships (legal or otherwise) between the persons named in
Item 2, and any other person, with respect to any securities of Wyndham
including but not limited to transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1:* Joint Filing Agreement dated as of
July 9, 1999 by and among the Reporting
Persons.
Exhibit 2: Securities Purchase Agreement dated as of Feb
ruary 18, 1999 by and among Wyndham, Pa
triot, Patriot American Hospitality Partnership,
L.P., Wyndham International Operating Part
nership, L.P. and the investors set forth on the
signature pages thereto (incorporated herein by
reference to Exhibit 99.1 to Wyndham's Cur
rent Report on Form 8-K filed with the Securi
ties and Exchange Commission on March 2,
1999).
Exhibit 3:* Amendment dated as of June 28, 1999 to Secu
rities Purchase Agreement dated as of February
18, 1999 by and among Wyndham, Patriot,
Patriot American Hospitality Partnership, L.P.,
Wyndham International Operating Partnership,
L.P. and the Investors set forth on the signature
pages thereto.
Exhibit 4:* Stockholders' Agreement dated as of
June 29, 1999 by and among the
Stockholders named therein.
Exhibit 5:* Registration Rights Agreement dated as
of Feb ruary 18, 1999 by and among Wyndham
and the persons listed on the signature
pages thereto.
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Exhibit 6:* Assignment and Assumption Agreement dated
as of June 24, 1999 by and among PW Hotel I,
LLC, 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., Apollo Investment
Fund IV, L.P., Patriot American Hospitality,
Inc., Wyndham International, Inc., Patriot
American Hospitality Partnership, L.P.,
Wyndham International Operating Partnership,
L.P., Thomas H. Lee Charitable Investment
L.P., Beacon Capital Partners, L.P. and Strate-
gic Real Estate Investments I, L.L.C.
* Filed herewith.
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SIGNATURES
After reasonable inquiry and to the best knowledge and belief of
each of the undersigned, each undersigned certifies that the information set
forth in this Statement is true, complete and correct.
PW HOTEL I, LLC
By: /s/ Dhananjay M. Pai
-----------------------------
Name: Dhananjay M. Pai
Title: Vice President
PAINEWEBBER CAPITAL INC.
By: /s/ Dhananjay M. Pai
-----------------------------
Name: Dhananjay M. Pai
Title: President
<PAGE>
SCHEDULE A
EXECUTIVE DIRECTORS AND OFFICERS OF REPORTING PERSONS
The name, business address, title, present principal occupation or employment of
each of the directors and executive officers of PW Hotel I, LLC and PaineWebber
Capital Inc. ("Reporting Persons") are set forth below. If no business address
is given the directors and officer's business address is PaineWebber
Incorporated, 1285 Avenue of the Americas, New York, New York 10019. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to PaineWebber Incorporated. Unless otherwise indicated below, all of the
persons listed below are citizens of the United States of America.
<TABLE>
<S> <C>
Present Principal Occupation Including Name
and
Name and Business Address Address* of Employer
- --------------------------------------------------- ----------------------------------------------------
Directors (of PaineWebber Capital Inc.)
Regina A. Dolan.................................... Executive Vice President and Chief Financial Officer
Dhananjay M. Pai................................... Managing Director
Present Principal Occupation Including Name
and Address* of
Name and Business Address Employer
- --------------------------------------------------- ----------------------------------------------------
Executive Officers (of PW Hotel I, LLC and
PaineWebber Capital Inc.)
Matthew Levitan.................................... Executive Vice President and Director of Human
Resources
Dhananjay M. Pai................................... Managing Director
Terry Francher..................................... Managing Director
William J. Nolan................................... Executive Vice President and Treasurer
Kenneth D. Levine.................................. Vice President and Head of Tax Compliance
Geraldine L. Banyal................................ Secretary and Vice President
</TABLE>
* Same address as officer's business address except where indicated.
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) under the Securities Exchange Act of
1934, the persons named below agree to the joint filing on behalf of each of
them of a Statement on Schedule 13D (including amendments thereto) with respect
to the Class A Common Stock of Wyndham International, Inc. and further agree
that this Agreement be included as an exhibit to such joint filing. This
Agreement may be executed in any number of counterparts, any one of which need
not contain the signatures of more than one party, but all such parts taken
together will constitute a part of the same instrument.
In evidence thereof, the undersigned, being duly authorized, hereby
execute this Agreement this July 9, 1999.
PW HOTEL I, LLC
By: /s/ Dhananjay M. Pai
-----------------------------
Name: Dhananjay M. Pai
Title: Vice President
PAINEWEBBER CAPITAL INC.
By: /s/ Dhananjay M. Pai
-----------------------------
Name: Dhananjay M. Pai
Title: President
EXHIBIT 3
AMENDMENT TO SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT TO SECURITIES PURCHASE AGREEMENT (the "Amendment") is made
as of June 28, 1999, by and among Patriot American Hospitality, Inc., a Delaware
corporation ("Patriot"), Wyndham International, Inc., a Delaware corporation
("Wyndham," and together with Patriot, the "Companies"), Patriot American
Hospitality Partnership, L.P. ("Patriot OP"), Wyndham International Operating
Partnership, L.P. ("Wyndham OP," and together with Patriot OP, the "Operating
Partnerships") and the parties identified on the signature page hereof as the
Original Investors (the "Original Investors"). All capitalized terms used herein
without definition shall have the meanings ascribed to them in that certain
Securities Purchase Agreement dated as of February 18, 1999 by and among the
Companies, the Operating Partnerships and the Original Investors (the
"Securities Purchase Agreement').
WHEREAS, the Companies, the Operating Partnerships, and the Original
Investors desire to make certain amendments to the Securities Purchase
Agreement.
NOW THEREFORE, in consideration of the foregoing premises and for other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Definition of Permitted Assignees and Permitted Third Party Transferee.
The term "Permitted Assignees" as defined in Section 1.1(b) of the Securities
Purchase Agreement shall include (i) the voting trusts formed or to be formed by
Beacon Capital Partners, Inc. and Beacon Capital Partners, L.P. ("Beacon") for
the purpose of holding Beacon's Shares, as described in that certain
Confidential Information Statement prepared by Beacon dated June 8, 1999, as
amended, and (ii) The Dartmouth Trust, The Franklin Trust and The Bonnybrook
Trust. The term "Permitted Third Party Transferees" as defined in Section 1.1(b)
of the Securities Purchase Agreement shall include the beneficiaries of AIF/THL
PAH LLC (other than Ares Leveraged Investment Fund, L.P. and Ares Leveraged
Investment Fund II, L.P., which shall be deemed to be Permitted Assignees of
Apollo Investment Fund IV, L.P. and Apollo Real Estate Investment Fund III,
L.P.) to the extent that AIF/THL PAH LLC distributes Shares to these
beneficiaries and these beneficiaries agree to be bound by the terms and
conditions of the Securities Purchase Agreement.
2. Delayed Closing of Portion of Shares Purchase.
(a) Section 1.2 of the Securities Purchase Agreement is hereby amended
by adding the following sentence at the end of Section 1.2:
"Notwithstanding anything contained in this Agreement to the contrary,
upon the terms and subject to the conditions set forth herein, on July
1, 1999, Wyndham will issue and sell to Beacon, and, in reliance on
the representations and warranties of the Companies and the Operating
Partnerships contained herein, Beacon will purchase from Wyndham
450,000 Shares (the "Delayed Purchase Shares") of the 1,500,000 Shares
to be purchased by Beacon pursuant to Section
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<PAGE>
1.1, for a purchase price of $100.00 per Share. Beacon, in its sole
discretion, may fund up to $45 million (but only to the extent that
the same, less accrued interest and exit fees, has been advanced by
Beacon on or prior to July 1, 1999) of the Purchase Price of the
Delayed Purchase Shares through transfer of all or part of Beacon's
loan receivable, plus accrued interest and exit fees, from PAH Realty
Company, LLC which is secured by a mortgage on the Batterymarch hotel,
Boston, Massachusetts (the "Batterymarch Mortgage Loan")."
(b) Section 2.1 of the Securities Purchase Agreement is hereby amended
by adding the following sentence at the end of Section 2.1:
"Notwithstanding anything contained in this Agreement to the contrary,
for purposes of all matters in this Agreement relating to the purchase
and sale of the Delayed Purchase Shares, including, without limitation
the satisfaction of the conditions precedent contained in Article V of
this Agreement, the term "Closing" shall mean the closing of the
purchase and sale of the Delayed Purchase Shares, and the term
"Closing Date" shall mean July 1, 1999.
3. Unaccredited Investors as Permitted Assignees. Section 4.1(b) of the
Securities Purchase Agreement is amended by deleting the last sentence of
Section 4.1(b) and replacing it with the following"
"Each Investor, other than three of the Permitted Assignees of Thomas
H. Lee Equity Fund IV, L.P., Thomas H. Lee Foreign Fund IV, L.P.,
Thomas H. Lee Charitable Investment L.P., and THL-CCI Limited
Partnership qualifies as an "accredited investor" as such term is
defined in Section 2(15) of the Securities Act and Regulation D
promulgated thereunder."
4. Definition of "Covered Anatole Termination". Section 10.2(a) of the
Securities Purchase Agreement is amended so that the defined term "Covered
Anatole Termination" shall mean any termination of the Anatole Management
Contract pursuant to Section 12.2(2) of the Anatole Management Contract, as
amended February 16, 1999. The Companies and the Operating Partnerships agree to
make no further amendments to Section 12.2(2) of the Anatole Management Contract
without the Investors' prior written consent.
5. Restructuring Plan. The first sentence of paragraph number 6 of Exhibit
A Restructuring Plan, to the Securities Purchase Agreement is hereby amended to
change the reference in such sentence from "voting stock" to "non-voting stock."
6. Form of Bylaws. Exhibit C to the Securities Purchase Agreement, Form of
Amended and Restated Bylaws of Wyndham, is hereby deleted and replaced in its
entirety with the attached Exhibit C.
2
<PAGE>
7. Form of Certificate of Designation of Series B Convertible Preferred
Stock. Exhibit G to the Securities Purchase Agreement, Form of Certificate of
Designation of Series B Convertible Preferred Stock, is hereby deleted and
replaced in its entirety with the attached Exhibit G.
8. Impact of Amendment. All provisions of the Securities Purchase Agreement
and the exhibits thereto not amended by this Amendment shall remain in full
force and effect.
[Remainder of Page Intentionally Left Blank]
DOCSC\766869.1
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
4
<PAGE>
WYNDHAM INTERNATIONAL OPERATING
PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General
Partner
By:
--------------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001 Dallas, Texas 75207
[Remainder of page intentionally left blank]
5
<PAGE>
ORIGINAL INVESTORS:
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc., its General Partner
By:
--------------------------------------
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:
--------------------------------------
Name:
Title:
Address: 1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
--------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
6
<PAGE>
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:
--------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:
--------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By:
--------------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600 Boston,
Massachusetts 02109
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:
ddress: 1995 University Avenue
Suite 550
Berkeley, California 94704
DOCSC\766869.4
8
EXHIBIT 4
================================================================================
-------------------------------
WYNDHAM INTERNATIONAL, INC.
-------------------------------
STOCKHOLDERS' AGREEMENT
BY AND AMONG
THE STOCKHOLDERS NAMED
ON THE SIGNATURE PAGES HERETO
-------------------------------
Dated as of June 29, 1999
-------------------------------
===============================================================================
<PAGE>
TABLE OF CONTENTS
Section Heading Page
- ------- ------- ----
Article 1. Certain Definitions........................................1
Article 2. Board of Directors.........................................7
Section 2.1. Board of Directors................................7
Article 3. Restrictions on Transfer.........................................7
Section 3.1. Restrictions on Transfer..........................8
Section 3.2. Exceptions to Restrictions........................8
Section 3.3. Binding Effect on Transferees.....................9
Section 3.4. Notifications Regarding Transfers.................9
Section 3.5. Restrictions on Conversion........................9
Article 4. Tag-Along Rights; Drag-Along Rights.............................10
Section 4.1. Tag-Along Rights.................................11
Section 4.2. Drag-Along Rights................................11
Article 5. Registration Rights.............................................12
Section 5.1. Registration Rights..............................12
Article 6. Miscellaneous...................................................13
Section 6.1. Further Actions; Cooperation.....................13
Section 6.2. Successors and Assigns...........................13
Section 6.3. Representatives..................................14
Section 6.4. Amendment; Modification; Waiver..................14
Section 6.5. Notices..........................................14
Section 6.6. Entire Agreement: Governing Law..................14
Section 6.7. Injunctive Relief................................15
Section 6.8 Headings.........................................15
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the
mon Stock; New Issuances.........................15
Section 6.10. Counterparts.....................................15
Section 6.11. Jurisdiction; Forum..............................16
Section 6.12. Termination......................................16
<PAGE>
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June 29,
1999, by and among the parties named on the signature pages hereto
(collectively, the "Stockholders") and such other persons that become parties
to this Agreement as described herein.
W I T N E S S E T H:
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as of
Febru ary 18, 1999, as amended, by and among Wyndham International, Inc. (the
"Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partner ship, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the
"Original Investors") and (ii) Assignment and Assumption Agreements by and
among the Company, Patriot and the Stockholders, the Stockholders will
purchase shares of Series B Convertible Preferred Stock (the "Shares") of the
Company; and
WHEREAS, the parties hereto deem it in their best interests to enter
into this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of their securities of
the Company and to provide for certain rights and obligations with respect
thereto as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understand ings set forth herein, the parties hereto hereby agree as follows:
Article 1. Certain Definitions
As used in this Agreement, the following terms shall have the
following respec tive meanings:
"Affiliate" means, as to any Person, (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of
such Person or of any Person which directly or indirectly controls, is
controlled by, or is under common control with such Person, and (c) any
individual who is a member of the immediate family of any Person described in
clause (a) or clause (b) above. For purposes of this definition, "control" of
a Person shall mean the power, direct or indirect, (i) to vote or direct the
voting of 5% or more of the Voting Stock of such Person or (ii) to direct or
cause the direction of the
1
<PAGE>
management and policies of such Person whether by ownership of Capital Stock,
by contract or otherwise.
"Agreement" means this Agreement as in effect on the date hereof and
as hereafter from time to time amended, modified or supplemented in accordance
with the terms hereof.
"Apollo Investors" means Apollo Real Estate Investment Fund IV, L.P.,
Apollo Investment Fund IV, L.P., Strategic Real Estate Investments I, LLC and
their respective Permitted Assignees and Permitted Third Party Transferees.
"Apollo Stockholder" means, collectively, Apollo Management IV, L.P.
and Apollo Real Estate Management IV, L.P.
"Beacon Affiliate" means any director or officer, or member of the
immediate family of a director or officer, of any entity that is included
within the definition of "Beacon Stockholder" in office at the time of the
relevant determination, and any corporation, partnership, limited liability
company, trust or other entity that is controlled by, or the equity interests
of which are owned by, any of the foregoing individuals.
"Beacon Stockholder" means, collectively, Beacon Capital Partners,
L.P., Beacon Capital Partners, Inc., BCP Voting, Inc., as voting trustee of
the First Beacon Voting Trust, and any other entity that is an Affiliate of
Beacon Capital Partners, L.P. that becomes a trustee of the First Beacon
Voting Trust or the Second Beacon Voting Trust, if formed, and any successors
thereto.
"Beacon Voting Trust" means, collectively, the First Beacon Voting
Trust and the Second Beacon Voting Trust.
"Beacon Voting Trust Agreement" means, collectively, (i) the Voting
Trust Agreement, dated as of June 8, 1999, as amended, by and between Beacon
Capital Partners, L.P., as the initial beneficiary of the First Beacon Voting
Trust, and BCP Voting, Inc, as trustee of the First Beacon Voting Trust, an
accurate copy of which has been provided to the Lead Stockholders, and (ii) if
the Second Beacon Voting Trust is formed, the Voting Trust Agreement to be
entered into by and between Beacon Capital Partners, L.P., as the initial
beneficiary of the Second Beacon Voting Trust, and the trustee of the Second
Beacon Voting Trust; provided, that (x) the proposed form of the Voting Trust
Agreement for the Second Beacon Voting Trust and the proposed form of any
amendment to the Voting Trust Agreement for the First Beacon Voting Trust or
the Second Beacon Voting Trust shall be provided to the Lead Stockholders for
their review at least ten days in advance of the earlier of its execution or
distribution and (y) the Lead Stockholders shall have approved in advance of
the earlier of its execution or distribution any provision of the Second
Beacon Voting Trust or any amendment to the Voting Trust
2
<PAGE>
Agreement for the First Beacon Voting Trust or the Second Beacon Voting Trust
that alters or is otherwise inconsistent with the definition of "Permitted
Voting Trust Trans fer" contained in this Agreement or any other provision
affecting those matters addressed in this Agreement.
"Board of Directors" means the Board of Directors of the Company as
from time to time hereafter constituted.
"By-Laws" means the By-Laws of the Company in effect on the date
hereof and as hereafter further amended.
"Capital Stock" means and includes (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock of any Person, including, without limitation, shares of
preferred or preference stock, (ii) all partnership interests (whether general
or limited) in any Person which is a partnership, (iii) all membership
interests or limited liability company interests in any limited liability
company and (iv) all equity or ownership interests in any Person of any other
type.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as in effect on the date hereof and as hereafter amended,
modified, supple mented or restated.
"Class A Common Stock" means the Class A common stock, par value
$0.01 per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value
$0.01 per share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common
Stock or, if the Company's common stock ceases to be so designated, the common
stock, par value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation,
and any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and
any other securities convertible into, exercisable for or exchangeable with
Common Stock or Preferred Stock and other equity security issued by the
Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P.
Voting Trust.
3
<PAGE>
"Lead Stockholders" means the Apollo Stockholder and the Lee
Stockholder; provided that if either of the Lead Stockholders and its
respective Affiliates cease to collectively beneficially own at least 10% of
the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchange able or exercisable for shares
of Common Stock) beneficially owned by such Lead Stockholder and its
Affiliates immediately following the closing of the transactions contemplated
by the Securities Purchase Agreement, then such Lead Stockholder shall cease
to be a Lead Stockholder.
"Lee Director Percentage" means (i) the total number of shares of
Common Stock (including, without duplication, shares of Common Stock issuable
upon conversion of securities convertible, exchangeable or exercisable for
shares of Common Stock) beneficially owned by the Lee Investors (excluding
open market purchases) divided by (ii) the total number of shares of Common
Stock (including, without duplication, shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares
of Common Stock) beneficially owned by the Apollo Investors and the Lee
Investors (excluding open market purchases).
"Lee Investors" means Thomas H. Lee Equity Fund IV, L.P., Thomas H. Lee
Foreign Fund IV, L.P., Thomas H. Lee Charitable Investment L.P., THL-CCI Limited
Partnership, the Beacon Stockholder and their respective Permitted Assignees and
Permitted Third Party Transferees.
"Lee Stockholder" means THL Equity Advisors IV, LLC, in its capacity as
general partner of Thomas H. Lee Equity Fund IV, L.P.
"Permitted Assignee" shall have the same meaning as set forth in the
Securities Purchase Agreement.
"Permitted Beacon Voting Trust Transfer" means a transfer of Shares
through a termination of the Beacon Voting Trust on or after the second
anniversary of the date of this Agreement that complies with each of the
following requirements: (i) the termination shall be made pursuant to Section
15(a)(iv) of the Beacon Voting Trust Agreement at the request of beneficiaries
of the Beacon Voting Trust that shall not include the Beacon Stockholder or
any Beacon Affiliate, such termination shall not have been directly or
indirectly proposed, solicited or encouraged by the Beacon Stockholder (other
than the required action as trustee under such Section 15(a)(iv)) or by any
Beacon Affiliate and the Beacon Stockholder and the Beacon Affiliates shall
have used their reasonable efforts to discourage such termination; (ii) the
Shares so transferred shall be converted into shares of Series A Preferred
Stock; (iii) any shares of Series A Preferred Stock to be received in
connection with such termination by the Beacon Stockholder or by any Beacon
Affiliate shall remain subject to the transfer, conversion and other
restrictions of this Agreement and the Beacon Stockholder and any such Beacon
Affiliate shall execute
4
<PAGE>
any agreement required under Section 3.3 of this Agreement to evidence the
foregoing; (iv) each of the transferees of such Shares shall have acknowledged
in form and sub stance satisfactory to the Lead Stockholders such transferee's
agreement to be bound by Section 5.1(b) of this Agreement; and (v) such
termination and the transfer of Shares made in connection therewith shall be
made in compliance with all applicable law.
"Permitted Third Party Transferee" shall have the same meaning as set
forth in the Securities Purchase Agreement.
"Person" means an individual or a corporation, association,
partnership, limited liability company, joint venture, organization, business,
trust or any other entity or organization, including a government or any
subdivision or agency thereof.
"Preferred Stock" means the Series A Preferred Stock and the Series B
Preferred Stock.
"Pro Rata Portion" means, with reference to any Stockholder at any
time, a fraction, the numerator of which is the number of votes represented by
the Shares and the Class B Common Stock then issued and outstanding and held
by such Stockholder, and the denominator of which is the aggregate number of
votes represented by the Shares and the Class B Common Stock then issued and
outstanding and held by the Stockholders taken together.
"Registrable Securities" means (i) any shares of Class B Common Stock
issued or issuable upon conversion of any of the Shares, (ii) any shares of
Series A Preferred Stock issued or issuable upon conversion of the Shares,
(iii) any shares of Class A Common Stock issued or issuable upon conversion of
the Series A Preferred Stock described in clause (ii) above, and (iv) any
securities issued or issuable with respect to any Series A Preferred Stock,
Series B Preferred Stock, Class A Common Stock or Class B Common Stock
described in clauses (i), (ii) and (iii) above by way of stock dividend or
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation, reorganization or otherwise.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 18, 1999, by and among the Company and the
persons listed on the signature pages thereof.
"Restated Certificate of Incorporation" means the Restated
Certificate of Incorpo ration of the Company, as proposed to be filed with the
Secretary of State of the State of Delaware on the date of the Closing under
the Securities Purchase Agreement.
5
<PAGE>
"Required Investor Director Percentage" means 1.0 divided by the
total number of Class B directors of the Company that may be elected pursuant
to Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L.P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
"Securities Act" means, as of any date, the Securities Act of 1933,
as amended, or any similar Federal statute then in effect and superseding such
act, and any reference to a particular section thereof shall include a
reference to the comparable section, if any, of any such similar Federal
statute, and the rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
references in this Agree ment to the "Shares" shall be deemed to include
additional shares of Series B Preferred Stock that are issued pursuant to the
Certificate of Designation for such Preferred Stock.
"Stockholders" shall mean (i) the Stockholders named on the signature
page hereto and (ii) each Third Party Transferee who becomes a party to or
bound by the provisions of this Agreement in accordance with the terms hereof,
in each case for so long as such person continues to hold Equity Securities in
the Company.
"Third Party Transferee" has the meaning specified in Section 3.2.
"Voting Stock" means Capital Stock of any class or classes, the
holders of which are ordinarily, in the absence of contingencies, entitled to
vote in the election of directors (or Persons performing similar functions).
6
<PAGE>
Article 2. Board of Directors
Section 2.1. Board of Directors. (a) For so long as this Agreement is
in effect, each of the Stockholders shall vote all of the Voting Stock owned
or held of record by such Stockholder so as to elect, and to continue in
office, each of the directors of the Company designated by the Lead
Stockholders. So long as the Stockholders are entitled to elect eight Class B
directors pursuant to the Restated Certificate of Incorporation, the Apollo
Stockholder shall have the right to designate four Class B directors of the
Company and the Lee Stockholder shall have the right to designate four Class B
directors of the Company. In the event that the number of Class B directors of
the Company that the Stockholders are entitled to elect is reduced to below
eight pursuant to Section V(D) of the Restated Certificate of Incorporation,
(i) the number of Class B directors that the Lee Stockholder shall be entitled
to designate shall be equal to the Lee Director Percent age divided by the
Required Investor Director Percentage (rounded up or down to the nearest
integer) and (ii) the number of Class B directors that the Apollo Stockholder
shall be entitled to designate shall be equal to the total number of Class B
directors of the Company that the Stockholders are entitled to elect pursuant
to Section V(D) of the Restated Certificate of Incorporation minus the number
of Class B directors that the Lee Stockholder is entitled to designate
pursuant to this Section 2.1(a).
(b) If either of the Lead Stockholders shall notify the
other Stockhold ers of its desire to remove, with or without cause, any
director of the Company previously designated by it, each Stockholder shall
vote all of the shares of Voting Stock owned or held by such Stockholder and
take all other necessary actions to cause the removal of any director
designated by such Lead Stockholder pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead
Stockholder shall for any reason cease to serve as a member of the Board of
Directors during his term of office, the resulting vacancy on the Board of
Directors will be filled by a representative desig nated by such Lead
Stockholder.
Article 3. Restrictions on Transfer
Section 3.1. Restrictions on Transfer.
(a) Each Stockholder agrees that for a period of five years following
the date of this Agreement, such Stockholder will not, directly or indirectly,
offer, sell, transfer, assign or otherwise dispose of (or make any exchange,
gift, assignment or pledge of) (collectively, for purposes of Articles 3 and 4
only, a "transfer") any of its Shares, any shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, or options, warrants or rights to
subscribe for or purchase Shares, Preferred Stock or
7
<PAGE>
Common Stock that may be issued hereafter to such Stockholder, except as
provided in this Article 3. In addition to the other restrictions contained in
this Article 3, each Stockholder agrees that it will not, directly or
indirectly, transfer any of its Shares or any shares of Common Stock or
Preferred Stock issuable upon conversion of Shares except as permitted under
the Securities Act and other applicable securities laws.
(b) Any attempt by any Stockholder to transfer any Shares and any
Common Stock or Preferred Stock issuable upon conversion of the Shares not in
compliance with this Agreement shall be null and void. Without limiting the
foregoing, it is expressly understood and agreed that any transfer of Shares
by the Beacon Voting Trust that is not the Permitted Beacon Voting Trust
Transfer or a transfer otherwise expressly permitted under this Agreement
shall be null and void and not be recorded on the transfer books of the
Company.
Section 3.2. Exceptions to Restrictions. The provisions of
Section 3.1 shall not apply to any of the following transfers:
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its
respective Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, in accordance with Article 4 or 5
hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or Preferred
Stock issuable upon conversion of such Shares, to a bank, financial
institution or other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third Party
Transferee") execute (or, in the case of clause (d) above, that the pledging
Stockholder use its reasonable efforts to cause the pledgee referred to
therein to execute prior to any foreclosure of the shares so pledged) the
agreement referred to in Section 3.3 hereof. The provisions of this Agree ment
shall be applied to the Shares, including the shares of Common Stock or
Preferred Stock issuable upon conversion of Shares, acquired by any Third
Party Transferee of a Stockholder in the same manner and to the same extent as
such provisions were applica ble to such Shares, or Common Stock or Preferred
Stock issuable upon conversion of Shares, in the hands of such Stockholder.
Any reference in this Agreement to the Stockholders shall be deemed to include
each Stockholder and its respective Third Party Transferees.
8
<PAGE>
No transfer of any Shares, or shares of Common Stock or Preferred
Stock issuable upon conversion of Shares, to a Third Party Transferee shall be
effective unless such transfer is made (i) pursuant to an effective
registration statement under the Securities Act and is qualified under
applicable state securities or blue sky laws or (ii) without registra tion
under the Securities Act and qualification under applicable state securities
or blue sky laws, as a result of the availability of an exemption from
registration and qualification under such laws, and such Stockholder shall
have furnished to the Lead Stockholders a certificate to that effect;
provided, however, that no such certificate or opinion of counsel shall be
required in connection with a transfer of shares of Common Stock pursuant to
Sections 4.1 or 4.2 hereof.
Section 3.3. Binding Effect on Transferees. The obligations of a
party hereto shall be binding upon any transferee to whom Shares or Common
Stock or Preferred Stock issuable upon conversion of such Shares are
transferred by such party, whether or not such transfer is permitted under the
terms of this Agreement; provided, that the foregoing shall not apply to (a)
transferees (other than the Beacon Affiliates) pursuant to the Permitted
Beacon Voting Trust Transfer, (b) transferees pursuant to transfers permit ted
under Section 3.2(c) or (c) transferees for which the transfer occurs
following the fifth anniversary of the date of this Agreement (transferees
permitted under clause (a), (b) or (c), collectively, the "Exempted
Transferees") . Prior to consummation of any such transfer other than to an
Exempted Transferee, such party shall cause the transferee to execute an
agreement in form and substance reasonably satisfactory to the Lead Stock
holders, providing that such transferee shall be bound by and shall fully
comply with the terms of this Agreement.
Section 3.4. Notifications Regarding Transfers. To the extent that
any Stock holder proposes a transfer pursuant to Section 3.2, such Stockholder
shall provide notice to the Lead Stockholders at least ten Business Days prior
to the proposed transfer date of the number of Shares proposed to be
transferred. Not less that two Business Days prior to a proposed transfer date
requiring the approval of the Lead Stockholders, the Lead Stockholders shall
notify such Stockholder of whether the transfer has been approved, it being
agreed and understood that the Permitted Beacon Voting Trust Transfer shall
not require such approval.
Section 3.5. Restrictions on Conversion. Each Stockholder understands
and agrees that, for a period of five years following the date of this
Agreement, such Stock holder will not convert any Shares into shares of Common
Stock or Series A Preferred Stock without the consent of each of the Lead
Stockholders, except in connection with (i) an exercise of such Stockholder's
rights under Section 4.1 in connection with a sale of Shares by one of the
Lead Stockholders, (ii) a sale of Registrable Securities pursuant to Section
5.1 or (iii) the Permitted Beacon Voting Trust Transfer or a subsequent conver
sion of shares of Series A Preferred Stock received thereunder (other than by
a Beacon Affiliate).
9
<PAGE>
Article 4. Tag-Along Rights; Drag-Along Rights
Section 4.1. Tag-Along Rights.
(a) Notwithstanding anything in this Agreement to the contrary,
except in the case of (i) transfers by the Stockholders to a Third Party
Transferee referred to in Section 3.2(b), (c), (d) and (e) hereof, (ii)
transactions where rights are exercised pursuant to Section 4.2 hereof and
(iii) sales pursuant to Article 5 hereof or in connection with a sale pursuant
to Rule 144 under the Securities Act of 1933, each Stockholder shall refrain
from effecting any transfer of Shares, Series A Preferred Stock or Class B
Common Stock unless, prior to the consummation thereof, the other Stockholders
shall have been afforded the opportunity to join in such transfer on a pro
rata basis, as provided in this Section 4.1 (each such Stockholder, a
"Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the Stockholder
proposing a transfer shall cause the person or group that proposes to acquire
such shares (the "Proposed Purchaser") to offer in writing (the "Tag-Along
Offer") to purchase Shares, Series A Preferred Stock or Class B Common Stock
owned by the Tag-Along Person, such that the number of Shares, Series A
Preferred Stock or Class B Common Stock so offered to be purchased from the
Tag-Along Person shall be equal to the product obtained by multiplying the
aggregate number of Shares, Series A Preferred Stock or Class B Common Stock
proposed to be purchased by the Proposed Purchaser by such Tag-Along Person's
Pro Rata Portion. If the Purchase Offer is accepted by any Tag- Along Person,
then the number of Shares, Series A Preferred Stock or Class B Common Stock to
be sold to the Proposed Purchaser by the Stockholder proposing the transfer,
shall be reduced by the aggregate number of Shares, Series A Preferred Stock
or Class B Common Stock to be purchased by the Proposed Purchaser from such
Tag-Along Person pursuant thereto. Such purchase shall be made on the same
terms and conditions (including timing of receipt of consideration) as the
Proposed Purchaser shall have offered to purchase Shares, Series A Preferred
Stock or Class B Common Stock to be sold by the Stockholder who proposed the
transfer (net, in the case of any options, warrants or rights, of any amounts
required to be paid by the holder upon exercise thereof). The Tag-Along Person
shall have 20 days from the date of receipt of the Pur chase Offer during
which to accept such Purchase Offer, and the closing of such purchase shall
occur within 30 days after such acceptance or at such other time as the
Tag-Along Person and the Proposed Purchaser may agree.
10
<PAGE>
Section 4.2. Drag-Along Rights.
(a) If both of the Lead Stockholders propose a transfer in connection
with a sale or exchange, whether directly or pursuant to a merger,
consolidation or otherwise (a "Drag-Along Sale"), the Lead Stockholders may
require all other Stockholders to sell all Shares proposed to be sold therein
("Drag-Along Rights") then held by every Stock holder, for the same
consideration and otherwise on the same terms and conditions (including timing
of receipt of consideration) as the sale by Lead Stockholders; provided,
however, that if either of the Lead Stockholders and its respective Affiliates
cease to collectively beneficially own at least 20% of the shares of Common
Stock (including shares of Common Stock issuable upon conversion of securities
convertible, exchange able or exercisable for shares of Common Stock)
beneficially owned by them immedi ately following the closing of the
transactions contemplated by the Securities Purchase Agreement, Stockholders
collectively holding more than 50% of the voting power represented by the
outstanding Shares and shares of Class B Common Stock (the "Majority
Stockholders") shall have the ability to exercise the Drag-Along Rights
described in this Section 4.2.
(b) The Lead Stockholders or the Majority Stockholders, as
applicable, shall provide written notice of such Drag-Along Sale to the other
Stockholders (a "Drag-Along Notice") not later than the 15th day prior to the
proposed Drag-Along Sale. The Drag- Along Notice shall identify the
transferee, the number of Shares and/or shares of Class B Common Stock to be
transferred, the consideration for which a transfer is proposed to be made
(the "Drag-Along Sale Price(s)") and all other material terms and conditions
of the Drag-Along Sale. Subject to Section 4.2(d), each Stockholder shall be
required to participate in the Drag-Along Sale on the terms and conditions set
forth in the Drag- Along Notice and to tender all its Shares and shares of
Class B Common Stock as set forth below. The price(s) payable in such transfer
shall be the Drag-Along Sale Price(s). Not later than the 10th day following
the date of the Drag-Along Notice (the "Drag-Along Notice Period"), each of
the Stockholders shall deliver to a representative of Lead Stockholders or the
Majority Stockholders, as applicable, designated in the Drag-Along Notice
certificates representing all the Shares and shares of Class B Common Stock
beneficially owned and held by such Stockholder, duly endorsed, together with
all other documents required to be executed in connection with such Drag-Along
Sale, or if such delivery is not permitted by applicable law, an unconditional
agreement to deliver such shares pursuant to this Section 4.2 at the closing
for such Drag-Along Sale against delivery to such Stockholder of the
consideration therefor.
(c) The Lead Stockholders or the Majority Stockholders, as
applicable, shall have a period of 90 days from the date of receipt of the
Drag-Along Notice to consum mate the Drag-Along Sale on the terms and
conditions set forth in such Drag-Along Sale Notice. If the Drag-Along Sale
shall not have been consummated during such period, the
11
<PAGE>
Lead Stockholders or the Majority Stockholders, as applicable, shall return to
each of the Stockholders all certificates or other evidence of title and
ownership representing shares that such Stockholders delivered for transfer
pursuant hereto, together with any docu ments in the possession of the Lead
Stockholders or the Majority Stockholders, as applicable, executed by the
other Stockholders in connection with such proposed transfer, and all the
restrictions on transfer contained in this Agreement or otherwise applicable
at such time with respect to shares owned by the Stockholders shall again be
in effect.
(d) Concurrently with the consummation of the transfer of shares
pursuant to this Section 4.2, the Lead Stockholders or the Majority
Stockholders, as applicable, shall give notice thereof to all Stockholders,
shall remit to each of the Stockholders who have surrendered their
certificates or other evidence of title and ownership the total consider ation
(by bank or certified check) for the shares transferred pursuant hereto and
shall furnish such other evidence of the completion and time of completion of
such transfer and the terms thereof as may be reasonably requested by such
Stockholders.
Article 5. Registration Rights
Section 5.1. Registration Rights.
(a) Each of the Stockholders shall be entitled to the benefits of,
and shall be bound by the obligations of, the Registration Rights Agreement
with respect to any Registrable Securities held by such Stockholder as if the
Stockholder were a party to the Registration Rights Agreement; provided,
however, that (i) any request for a Required Registration (as such term is
defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of
the Registration Rights Agreement made on or prior to the third anniversary of
the date of this Agreement shall only be made by or with the consent of both
of the Lead Stockholders, (ii) any request for a Required Registration
pursuant to Section 2.1(a) of the Registration Rights Agreement made during
the period following the third anniversary of the date of this Agreement
through the fifth anniversary of the date of this Agreement shall only be made
by the Apollo Stockholder, the Lee Stockholder or the Beacon Stockholder and
(iii) any request for a Shelf (as such term is defined in the Registration
Rights Agreement) pursuant to Section 2.1(a) of the Registration Rights
Agreement made on or prior to the fifth anniversary of the date of this
Agreement shall only be made by or with the consent of both of the Lead
Stockholders. Notwithstanding the foregoing, each of the Stockholders shall be
entitled to exercise its rights to include its Registrable Securities in a
registration effected by the Company pursuant to Section 2.1(b) of the
Registration Rights Agreement if such registration is a Required Registra tion
made in accordance with the immediately preceding sentence or if either Lead
Stockholder is including Registrable Securities in such registration. Each of
the Lead Stockholders agrees for the benefit of the other Lead Stockholder
that it will not, without the approval of the other Lead Stockholder, include
its Registrable Securities in a
12
<PAGE>
registration effected by the Company pursuant to Section 2.1(b) of the
Registration Rights Agreement during the three year period following the date
of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the
Registration Rights Agreement to the contrary, in the event that the Permitted
Beacon Voting Trust Transfer occurs, none of the shares of Preferred Stock or
Common Stock that are received by the beneficiaries of the Beacon Voting Trust
in connection therewith or are issued or issuable upon conversion of such
shares or shares received upon such conversion shall be Registrable
Securities, other than those shares that are held by the Beacon Stockholder or
by a Beacon Affiliate and remain subject to the transfer, conversion and other
restrictions of this Agreement. The Beacon Stockholder, in its capacities as
the trustee and initial beneficiary of the First Beacon Voting Trust and the
Second Beacon Voting Trust, hereby consents and agrees to be bound by the
provisions of this Section 5.1(b) on behalf of itself and all future
beneficiaries of the Beacon Voting Trust and acknowledges and agrees that it
has the sole responsibility to notify all such beneficiaries or transferees of
Shares owned by the Beacon Voting Trust of the terms of this Section 5.1(b)
and the fact that they are bound thereby.
Article 6. Miscellaneous
Section 6.1. Further Actions; Cooperation. Each of the Stockholders
agrees to use its reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable in
connection with the transactions contemplated by this Agreement. Without
limiting the generality of the foregoing, each of the Stockholders (i) acknowl
edges that the Stockholders will prepare and file with the Securities and
Exchange Commission filings under the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder (the "Exchange
Act"), including under Section 13(d) of the Exchange Act, relating to their
beneficial ownership of the Securities and (ii) agrees to use its reasonable
efforts to assist and cooperate with the other parties in promptly preparing,
reviewing and executing any such filings under the Exchange Act, including any
amendments thereto.
Section 6.2. Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. No Stockholder may assign any of
its rights hereunder to any Person other than a transferee that has complied
in all respects with the requirements of this Agreement (including, without
limitation, Section 3.4 hereof). If any transferee of any Stockholder shall
acquire any Shares or Common Stock issuable upon conversion of such Shares, in
any manner, whether by operation of law or otherwise, such shares shall be
held subject to all of the terms of this Agreement, and by taking and holding
such shares such Person
13
<PAGE>
shall be entitled to receive the benefits of and be conclusively deemed to
have agreed to be bound by and to comply with all of the terms and provisions
of this Agreement.
Section 6.3. Representatives. Each of the Stockholders hereby
designates and appoints (and each Third Party Transferee of each such
Stockholders is hereby deemed to have so designated and appointed) the Lead
Stockholders to serve as the representatives of each such Stockholder to
administer and make determinations as to matters arising or contemplated by
the Securities Purchase Agreement and related documentation, including without
limitation indemnification obligations, disputes and other rights and
obligations. Each of the Stockholders hereby agrees and acknowledges that the
Lead Stockholders shall be the only persons authorized to take any action so
required, authorized or contem plated by the Securities Purchase Agreement by
each such person. Each such person hereby authorizes (and each such Third
Party Transferee shall be deemed to have authorized) the other parties hereto
to disregard any notice or other action taken by such person pursuant to the
Securities Purchase Agreement except for the Lead Stockholders. The other
parties hereto are and will be entitled to rely on any action so taken by the
Lead Stockholders.
Section 6.4. Amendment; Modification; Waiver. No provision of this
Agree ment may be amended, modified or waived except by an instrument in
writing executed by the Majority Stockholders at the time of such proposed
amendment, modification or waiver; provided, however, that, so long as either
of the Lead Stockholders and their respective Affiliates beneficially own at
least 20% of the shares of Common Stock (including shares of Common Stock
issuable upon conversion of securities convertible, exchangeable or
exercisable for shares of Common Stock) initially owned by such Stockholders
at the closing of the transactions contemplated by the Securities Purchase
Agreement, this Agreement may not be amended or modified without such Lead
Stock holder's consent.
Section 6.5. Notices. All notices and other communications provided
for hereunder shall be in writing by hand delivery, telex, telecopier, or any
courier guarantee ing overnight delivery (i) if to the Stockholders as of the
date hereof, the address set forth next to the Stockholder's name on the
signature pages hereof, with a copy to Randall H. Doud, Esq., telecopier
number (212) 735-2000, and (ii) with respect to each Stockholder who becomes
such after the date hereof, the address of such Stockholder in the stock
records of the Company. All such communications shall be deemed to have been
given or made when so delivered by hand or sent by telecopy, or three business
days after being so mailed.
Section 6.6. Entire Agreement: Governing Law.
(a) This Agreement and the other writings referred to herein or
delivered pursuant hereto which form a part hereof contain the entire
agreement among the parties
14
<PAGE>
hereto with respect to the subject transactions contemplated hereby and
supersede all prior oral and written agreements and memoranda and undertakings
among the parties hereto with regard to this subject matter.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CON STRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF DELA WARE (WITHOUT GIVING EFFECT TO THE CHOICE
OF LAW PRINCIPLES
THEREOF).
Section 6.7. Injunctive Relief. The Stockholders acknowledge and
agree that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief from
any court of competent jurisdiction, restraining any Stockholder from
committing any violations of the provisions of this Agreement.
Section 6.8. Headings. The section and paragraph headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement.
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances. The provisions of this Agreement shall apply,
to the full extent set forth herein with respect to the Shares and Common
Stock and Preferred Stock issuable upon conversion of such Shares and to any
and all equity or debt securities of the Company or any successor or assign of
the Company (whether by merger, consolidation, sale of assets, or otherwise)
which may be issued in respect of, in exchange for, or in substitution of,
such equity or debt securities and shall be appropriately adjusted for any
stock dividends, splits, reverse splits, combinations, reclassifications,
recapitalizations, reorganizations and the like occurring after the date
hereof.
Section 6.10. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
15
<PAGE>
Section 6.11. Jurisdiction; Forum. With respect to any suit, action
or proceeding ("Proceeding") arising out of or relating to this Agreement,
each of the parties hereto hereby irrevocably:
(a) submits to the exclusive jurisdiction of the United States
District Court for the Southern District of New York, the United States
District Court for the District of Delaware, or any state court located in the
State of Delaware, County of Newcastle (the "Selected Courts") and waives any
objection to venue being laid in the Selected Courts whether based on the
grounds of forum non conveniens or otherwise;
(b) consents to service of process in any Proceeding by the mailing
of copies thereof by registered or certified mail, postage prepaid, or by
recognized international express carrier or delivery service, to such party at
its respective address referred to in Section 6.4 hereof; provided, however,
that nothing herein shall affect the right of any party hereto to serve
process in any other manner permitted by law; and
(c) waives, to the fullest extent permitted by law, any right it may
have to a trial by jury in any Proceeding.
Section 6.12. Termination. Upon the mutual consent of all of the
parties hereto or at such earlier time as each of the Lead Stockholders and
its respective Affiliates ceases to collectively beneficially own at least 10%
of the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares
of Common Stock) beneficially owned by such Lead Stockholder and its
Affiliates immediately following the closing of the transactions contemplated
by the Securities Purchase Agreement, this Agreement shall terminate and be of
no further force and effect.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the date first above written.
APOLLO REAL ESTATE INVESTMENT
FUND IV, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General
Partner
By:_________________________________________
Name:
Title:
Address: c/o Apollo Real Estate
Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By:_________________________________________
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
17
<PAGE>
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By:_________________________________________
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
<PAGE>
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
0258163.17-New YorkS6A
EXHIBIT 5
==============================================================================
REGISTRATION RIGHTS AGREEMENT
By and among
WYNDHAM INTERNATIONAL, INC.
and
The Persons Listed on
the Signature Pages Hereof
---------------------------
Dated as of February 18, 1999
==============================================================================
<PAGE>
TABLE OF CONTENTS
Page
Section 1. Definitions.......................................................2
Section 2. Registration Under the Securities Act.............................5
(a) Required Registration........................................6
(b) Incidental Registration......................................9
(c) Expenses....................................................11
(d) Effective Registration Statement Suspension.................11
(e) Selection of Underwriters...................................12
Section 3. Restrictions on Public Sale by Wyndham...........................12
Section 4. Registration Procedures..........................................12
Section 5. Indemnification; Contribution....................................19
(a) Indemnification by Wyndham..................................19
(b) Indemnification by Holders..................................20
(c) Conduct of Indemnification Proceedings......................20
(d) Contribution................................................21
Section 6. Miscellaneous....................................................23
(a) Inconsistent Agreements.....................................23
(b) Amendments and Waivers......................................23
(c) Notices.....................................................23
(d) Successors and Assigns......................................24
(e) Recapitalizations, Exchanges, etc., Affecting Registrable
Securities..................................................25
(f) Counterparts................................................25
(g) Descriptive Headings, Etc...................................25
(h) Severability................................................25
(i) Governing Law...............................................26
(j) Specific Performance........................................26
(k) Entire Agreement............................................26
(i)
<PAGE>
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 18, 1999, by and among Wyndham International, Inc., a Delaware
corporation ("Wyndham"), the other Persons (as hereinafter defined) listed on
the signature pages hereof (herein referred to collectively, along with their
respective affiliates and successors who from and after the date hereof
acquire or are otherwise the transferee of any Registrable Securities (as
hereinafter defined), as the "Initial Holders" and individually, as an
"Initial Holder") and any other Person that shall from and after the date
hereof acquire or otherwise be the transferee of any Registrable Securities
and who shall be a Permitted Transferee (as hereinafter defined) of any
Initial Holder (herein referred to collectively as the "Holders" and
individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc.
("Patriot" and, together with Wyndham, the "Companies"), Wyndham International
Operating Partnership, L.P. and Patriot American Hospitality Partnership, L.P.
have entered into a Securities Purchase Agreement, dated as of February 18,
1999 (the "Securities Purchase Agreement"), with the Initial Holders, which
provides, upon the terms and subject to the conditions thereof, for the
purchase by the Initial Holders of shares of Wyndham's Series B Convertible
Preferred Stock, par value $0.01 per share (the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class B Common Stock, par value
$0.01 per share (the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of
Series B Preferred Stock to any Person other than an Initial Holder, such
shares of Series B Preferred Stock will automatically convert, upon the terms
and subject to the conditions set forth in the Certificate of Designation
relating thereto, into shares of Series A Convertible Preferred Stock, par
value $0.01 per share (the "Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of Wyndham;
WHEREAS, in the event of any transfer of any shares of Class
B Common Stock to any Person other than an Initial Holder, such shares of
Class B
<PAGE>
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 acknowl edged, 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.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended from time to time.
2
<PAGE>
"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 state ment 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 consecu tive calendar days ending on the trading day
immediately preceding the date in question.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be
a "qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general
partnership, corporation, trust, joint venture, association, joint stock
company or unincorporated organization.
"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any prospectus supplement with
respect to the terms of
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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 prepara tion 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 Ex penses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement of
Wyndham which covers any Registrable Securities and all amendments and supple
ments to any such Registration Statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Required Registration Statement" shall mean a Registration State
ment pursuant to Section 2(a)(i).
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"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 prepara tion 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
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own Registrable Securities with a Market Value of at least $100 million, the
Holders shall have the right to require Wyndham to effect additional Required
Registrations provided that the Registrable Securities included therein have
an aggregate Market Value of at least $50 million and provided further that
any Investor proposing to distribute its Registrable Securities to its
partners or shareholders shall have the right to require Wyndham to effect an
additional Required Registrations to facilitate such distribution.
A Request may be withdrawn prior to the filing of the Required
Registration Statement by the Holder(s) which made such Request (a "Withdrawn
Request") and a Required Registration Statement may be withdrawn prior to the
effectiveness thereof by the Holders of a majority of the Registrable
Securities included therein (a "Withdrawn Required Registration"), and, in
either such event, such withdrawal shall be treated as a Required Registration
which shall have been effected pursuant to clause (ii) of the immediately
preceding paragraph, except that the Holders may require Wyndham to disregard
one Withdrawn Request for purposes of such clause (ii).
The Holders shall not, without Wyndham's consent, be entitled to
deliver a Request for a Required Registration after the completion of the
Required Registration if less than 90 calendar days have elapsed since (A) the
effective date of a prior Required Registration Statement, (B) in the case of
a Required Registration which is effected other than by means of an
Underwritten Offering, the date of sale by the Holders of their Registrable
Securities pursuant thereto or (C) the date of withdrawal of a Withdrawn
Required Registration.
Notwithstanding the foregoing, from and after the Closing, Wyndham
may delay the filing of a Required Registration Statement if the Board of
Directors of Wyndham determines that such action is in the best interests of
Wyndham's stockholders, and only for an aggregate number of days, taken
together with any Blackout Period invoked pursuant to Section 2(a)(ii), not to
exceed 60 days in any twelve month period (a "Blackout Period").
The registration rights granted pursuant to the provisions of this
Section 2(a)(i) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(ii) Shelf Registration. Promptly upon the Request of the Holders
(but in no event later than the 75th calendar day after the receipt of such a
Request),
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the Company shall use its reasonable best efforts to promptly process, file
and cause to become effective a Registration Statement on Form S-3 (the
"Shelf") for an offering of Registrable Securities to be made on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act (or any similar
rule that may be adopted by the SEC) and permitting sales in ordinary course
brokerage or dealer transactions not involving an Underwritten Offering. Each
Holder which owns, on the date of the initial filing of the Shelf (the
"Initial Filing Date"), Registrable Securities (each such Holder, an "Eligible
Holder") shall have the right to resell such Registrable Securities under the
Shelf until the date that such Eligible Holder sells all of such Registrable
Securities, whether or not under the Shelf (such Eligible Holder's
"Termination Date"). The Company agrees to use its reasonable best efforts to
keep the Shelf continuously effective and usable for resale of Registrable
Securities until all Eligible Holders lose their rights to resell Registrable
Securities under the Shelf.
Notwithstanding the foregoing, (A) from the Closing and until the
effectiveness of a Shelf Registration Statement, Wyndham may delay the filing
of a Shelf Registration Statement, or (B) from and after the effectiveness of
a Shelf Registration Statement, each Holder agrees that it will not effect any
sales of the Registrable Securities pursuant to the Shelf Registration, in
either case, if the Board of Directors of Wyndham determines that such action
is in the best interests of Wyndham's stockholders, and only for a Blackout
Period, taken together with any Blackout Period invoked pursuant to Section
2(a)(i), not to exceed 60 days.
The registration rights granted pursuant to the provisions of this
Section 2(a)(ii) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(iii) Priority in Required and Shelf Registrations. If a Required or
Shelf Registration pursuant to this Section 2(a) involves an Underwritten
Offering, and the sole Underwriter or the lead managing Underwriter, as the
case may be, of such Underwritten Offering shall advise Wyndham in writing
(with a copy to each Holder requesting registration) on or before the date 5
days prior to the date then scheduled for such offering that, in its opinion,
the amount of Registrable Securities requested to be included in such Required
or Shelf Registration exceeds the amount which can be sold in such offering
without adversely affecting the distribution of the Registrable Securities
being offered, Wyndham will include in such Required or Shelf Registration
only the amount of Registrable Securities that Wyndham is so advised can be
sold in such offering; provided, however, that Wyndham shall be required to
include in such Required or Shelf Registration: first, all Registrable
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<PAGE>
Securities requested to be included in the Required or Shelf Registration by
the Holders and, to the extent not all such Registrable Securities can be
included in such Required Registration, the number of Registrable Securities
to be included shall be allocated pro rata on the basis of the number of
shares of Preferred Stock or Com mon 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
compli ance 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 connec tion 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 registra tion under the Securities Act of all Registrable Securities which
Wyndham has been
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<PAGE>
so requested to register by such Initial Holders to the extent required to
permit the disposition (in accordance with the intended methods of
distribution thereof or, in the case of a registration which is intended to
effect a primary offering for cash for the account of Wyndham, in accordance
with Wyndham's intended method of distribu tion) of the Registrable Securities
so requested to be registered, including, if neces sary, by filing with the
SEC a post-effective amendment or a supplement to the Incidental Registration
Statement or the related Prospectus or any document incorpo rated 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 Under writer or the lead managing Underwriter, as the
case may be, of such Underwritten Offering shall advise Wyndham in writing
(with a copy to each Initial Holder of Registrable Securities requesting
registration) on or before the date 5 days prior to the date then scheduled
for such offering that, in its opinion, the amount of securities (including
Registrable Securities) requested to be included in such registration exceeds
the amount which can be sold in (or during the time of) such offering without
adversely affecting the distribution of the securities being offered, then
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<PAGE>
Wyndham will include in such registration: first, all the securities entitled
to be sold pursuant to such Registration Statement without reference to the
incidental registra tion rights of any holder (including the Holders), and
second, the amount of other securities (including Registrable Securities)
requested to be included in such registra tion 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, injunc
tion 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.
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<PAGE>
(e) Selection of Underwriters. At any time or from time to time, the
Holders of a majority of the Registrable Securities covered by a Required
Registration Statement may elect to have such Registrable Securities sold in
an Underwritten Offering and may select the investment banker or investment
bankers and manager or managers that will serve as lead and co-managing
Underwriters with respect to the offering of such Registrable Securities,
subject to the consent of Wyndham which shall not be unreasonably withheld. No
Holder may participate in any Underwritten Offering hereunder unless such
Holder (a) agrees to sell such Holder's securities on the basis provided in
any underwriting arrangements approved by the Persons entitled hereunder to
approve such arrangements and (b) completes and executes all questionnaires,
powers of attorney, custody agreements, indemnities, underwriting agreements
and other documents required under the terms of such Underwritten Offering.
Section 3. Restrictions on Public Sale by Wyndham.
If requested by the sole Underwriter or lead managing Underwriter(s)
in such Underwritten Offering, Wyndham agrees not to effect any public sale or
distribution (other than public sales or distributions solely by and for the
account of Wyndham of securities issued pursuant to any employee benefit or
similar plan or any dividend reinvestment plan) of any securities during the
period commencing on the date Wyndham receives a Request from any Initial
Holder and continuing until (a) for a Registration Statement relating to such
Underwritten Offering other than a Shelf Registration, 90 days after such
Registration Statement is declared effective by the SEC and (b) for a Shelf
Registration Statement relating to such Underwritten Offering, 90 days after
the commencement of such Underwritten Offering, (or for such shorter period as
the sole or lead managing Underwriter shall request) unless earlier terminated
by the sole Underwriter or lead managing Underwriter(s) in such Underwritten
Offering.
Section 4. Registration Procedures.
In connection with the obligations of Wyndham pursuant to Section 2,
Wyndham shall use all reasonable efforts to effect or cause to be effected the
registration of the Registrable Securities under the Securities Act to permit
the sale of such Registrable Securities by the Holders in accordance with
their intended method or methods of distribution, and Wyndham shall:
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(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 Under writer, 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 Securi ties, if any, in connection
with the offering and sale of the Registrable Securities
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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 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 Securi ties 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;
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(f) furnish counsel for each such Underwriter, if any, and for the
Holders of Registrable Securities copies of any request by the SEC or any
state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the sole Underwriter or lead managing
Underwriter of an Underwritten Offering of Registrable Securities, if any,
without charge, at least one signed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits;
and furnish to each Holder of Registrable Securities, without charge, at least
one conformed copy of each Registration Statement and any post-effective
amendment thereto (without 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 denomina tions (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;
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(k) enter into customary agreements (including, in the case of an
Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and
appropriate actions in order to expedite or facilitate the disposition of such
Registrable Securities and in connection therewith:
(1) make such representations and warranties to the Holders
of such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to
underwriters in similar underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be 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 cov ered 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
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(5) deliver such customary documents and certificates as may
be reasonably requested by the Majority Holders of the Registrable
Securities being sold or by the managing Underwriters, if any.
The above shall be done (i) at be effectiveness of such Registration Statement
(and each post-effective amendment thereto) in connection with any
registration, and (ii) at each closing under any underwriting or similar
agreement as and to the extent required thereunder;
(l) make available for inspection by representatives of the Initial
Holders of the Registrable Securities and any Underwriters participating in
any disposition pursuant to a Registration Statement and any counsel or
accountant retained by such Holders or Underwriters, all relevant financial
and other records, pertinent corporate documents and properties of Wyndham and
cause the respective officers, directors and employees of Wyndham to supply
all information reasonably requested by any such representative, Underwriter,
counsel or accountant in connec tion with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any Registra
tion 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 Securi ties, 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
Prospec tus, 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;
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<PAGE>
(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 Registra tion 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;
(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 Major ity 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
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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 Securi ties Act or Section 20 of the Exchange Act as follows:
(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 regis tered 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, judg ments 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 govern mental 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
19
<PAGE>
untrue statement or omission, or any such alleged untrue statement or
omis sion, 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 State ment (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 indem nity 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
20
<PAGE>
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 repre
sented by separate counsel or that, upon advice of counsel, there may be legal
defenses available to it or them which are different from or in addition to
those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is not so entitled to
assume the defense of such action or does not assume such defense, after
having received the notice referred to in the first sentence of this
paragraph, the indemnifying party or parties will pay the reasonable fees and
expenses of counsel for the indemnified party or parties (limited in each
jurisdiction to one counsel for all Underwriters and another counsel for all
other indemnified parties under this Agreement). No indemnifying party or
parties will be liable for any settlement effected without the written consent
of such indemnifying party or parties, which consent shall not be unreasonably
withheld. If an indemnifying party is entitled to assume, and assumes, the
defense of such action or proceeding in accordance with this paragraph, such
indemnifying party or parties shall not, except as otherwise provided in this
subsection (c), be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action or
pr
oceeding.
(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 indemni fied 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
21
<PAGE>
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 (includ ing, 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 state ment or omission. The amount paid or payable by a party
as a result of the losses, liabilities, claims, damages, judgments and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in paragraph (c) of this Section, any legal or other
fees or expenses reasonably incurred by such party in connection with
investigating or defending any action or claim.
(ii) Wyndham and each Holder of Registrable Securities agree that it
would not be just and equitable if contribution pursuant to this paragraph (d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to in
sub-paragraph (i) above. Notwithstanding the provisions of this paragraph (d),
in the case of distribu tions 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.
22
<PAGE>
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
registra tion rights) provide to the Holders of Registrable Securities who
seek to participate in such registration (whether or not such registration is
initiated hereunder) rights no less favorable to such Holders than those
rights provided to the Holders hereunder as if such registration were a
Required Registration (including, without limitation, the priority provisions
contained in Section 2(a)(iii)), provided, further, however, that if such
registration is not initiated by the Initial Holders such registration shall
not be deemed one of the eight Required Registrations for purposes of the
limitations contained in the second paragraph of Section 2(a)(i), and (ii) the
Third Party is required to enter into the agreements provided for in Section 3
hereof (as if it were Wyndham) on the terms and for the period applicable to
Wyndham (including preventing sales pursuant to Rule 144 under the Securities
Act) if requested by the sole Underwriter or lead managing Underwriter in an
Underwritten Offering initiated by Holders of Registrable Securities pursuant
to Section 2(a). The rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to the holders
of Wyndham's other issued and outstanding securi ties 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
23
<PAGE>
of which is limited only to those Holders who have agreed to such amendment,
modification, supplement, waiver or consent.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to Wyndham by means of a
notice given in accordance with the provisions of this paragraph (c), which
address initially is, with respect to each Holder as of the date hereof, the
address set forth next to such Holder's name on the signature pages hereof
with a copy to Randall H. Doud, Esq., telecopier number (212) 735-2000, and
with respect to each Holder who becomes such after the date hereof, the
address of such Holder in the stock records of Wyndham, (ii) if to Wyndham, at
1950 Stemmons Freeway, Suite 6001, Dallas, Texas 75207, telecopier number
(214) 863-1527, Attention: General Counsel, with a copy to Gilbert G. Menna,
P.C., telecopier number (617) 523-1231, and thereafter at such other address,
notice of which is given in accordance with the provisions of this paragraph.
Notwithstanding the foregoing, Wyndham shall not be obligated to provide any
notice to any Holder which is not an Initial Holder except with respect to a
Required or Incidental Registration Statement which has been filed and
pursuant to which such Holder is identified as a selling stockholder.
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next business day if timely delivered to a courier guaranteeing overnight
delivery. Notwithstanding the foregoing, nothing in this Section 6(c) is
intended to enlarge the class of Persons which are Holders, as defined in the
preamble of this Agreement, and thus entitled to the rights granted hereunder.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors, assigns and transferees of each
of the parties, including, without the need for an express assignment,
subsequent Holders. If any successor, assignee or transferee of any Holder
shall acquire Registrable Securities in any manner, whether by operation of
law or otherwise, such Registrable Securities shall be held subject to all of
the terms of this Agreement, and by taking and holding such Registrable
Securities such Person shall be conclusively deemed to have agreed to be bound
by and to perform all of the terms and provisions of this Agreement and to
receive the benefits hereof. Notwithstanding the foregoing, nothing in this
Section 6(d) is intended to enlarge the class of Persons which are Holders, as
defined in the preamble of this Agreement, and thus entitled to the rights
24
<PAGE>
granted hereunder. For purposes of this Agreement, "successor" for any entity
other than a natural person shall mean a successor to such entity as a result
of such entity's merger, consolidation, liquidation, dissolution, sale of
substantially all of its assets, or similar transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent
set forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of Wyndham or any successor or assign of Wyndham
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution of such Registrable
Securities, by reason of any dividend, split, issuance, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, Preferred Stock and
Common Stock amounts hereunder shall be appropriately adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed
to be an original, but all of which counterparts, taken together, shall
constitute one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, paragraph and clause references are to the
Articles, Sections, paragraphs and clauses to this Agreement unless otherwise
specified; (4) the word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless otherwise
specified; (5) "or" is not exclusive; and (6) provisions apply to successive
events and transactions.
(h) Severability. In the event that any one or more of the provi
sions, 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
25
<PAGE>
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.
(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:
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<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
30
EXHIBIT 6
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made
as of this 24th 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) PW Hotel I, LLC (the "Assignee"),
(iii) Patriot American Hospitality, Inc., Wyndham International, Inc., Patriot
American Hospital ity Partnership, L.P. and Wyndham International Operating
Partnership, L.P. (collectively, the "Companies"), and (iv) the Investors (the
"Original Investors") named on the signature pages of the Securities Purchase
Agreement, dated as of February 18, 1999, as amended, by and among the
Companies and the Original Investors (the "Securities Purchase Agreement").
Capitalized terms used and not defined herein shall have the meanings ascribed
to such terms in the Securities Purchase Agreement.
W I T N E S S E T H:
WHEREAS, in accordance with Sections 1.1(b) and 11.3 of the
Securities Purchase Agreement, the Original Investors have the right to assign
their rights and obligations to purchase some or all of the Shares with the
Companies' consent (not to be unreasonably withheld or delayed) to other
persons, provided that no more than 25% in interest in the aggregate in the
rights and obligations to purchase Shares may be assigned to persons other
than Permitted Assignees;
WHEREAS, the Assignor desires to assign to the Assignee its
right and obligation to purchase 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.
(b) The Assignee, for the benefit of the Companies, each of
the Original Investors and any other persons who become Investors under the
Securities
<PAGE>
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 Agree ment 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 Im provements 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.
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<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 24, 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 reason able attorneys' fees and disbursements,
arising out of and in connection with its acting as escrow agent under this
Assignment. Without limiting the foregoing, the Escrow Agent shall in no event
be liable in connection with its investment or reinvestment of any cash held
by it hereunder in good faith, in accordance with the terms hereof, including
without limitation any liability for any delays (not resulting from its gross
negligence or willful misconduct) in the investment or reinvestment of the
Escrow Amount or any loss of interest incident to any such delays.
(iii) The Assignee shall pay or reimburse the Escrow Agent
upon request for any taxes relating to income derived from the Escrow Amount
and shall indemnify and hold harmless the Escrow Agent from any amounts that
it is obligated to pay in the way of such taxes. Any payments of income from
this Escrow Account shall be subject to withholding regulations then in force
with respect to United States taxes.
(f) The Assignee agrees that Thomas H. Lee Equity Fund IV,
L.P. and Apollo Management IV, L.P. (collectively, the "Lead Investors") shall
have the sole authority to administer and make determinations as to matters
arising under the Securities Purchase Agreement and related documentation and
that any determination
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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
contem plated hereby will limit their collective right to make assignments
under the Securi ties Purchase Agreement.
(i) Notwithstanding anything to the contrary herein, the
Assignee agrees that, upon its payment for the Subject Shares in accordance
with the terms of this 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 acknowl edge 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 acknowl
edges that Skadden, Arps, Slate, Meagher & Flom LLP is representing the
Original Investors as to certain matters in connection with the transactions
contemplated by
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the Securities Purchase Agreement and is not acting as counsel to the Assignee
in connection therewith.
(b) The Assignee acknowledges that PricewaterhouseCoopers
LLP is advising the Original Investors as to certain matters in connection
with the transac tions 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.
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IN WITNESS WHEREOF, parties hereto have caused this Assign-
ment 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:
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<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:
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<PAGE>
ASSIGNEE:
PW HOTEL I, LLC
Federal Tax ID No.:_______________
By: ___________________________
Name:
itle:
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<PAGE>
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By:___________________________
Name:
Title:
WYNDHAM INTERNATIONAL, INC.
By:___________________________
Name:
Title:
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<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:
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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:
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<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:
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<PAGE>
BEACON CAPITAL PARTNERS, L.P.
By: __________________________
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: __________________________
Name:
Title:
13
