<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED
PURSUANT TO RULE 13d-1 AND AMENDMENTS THERETO
FILED PURSUANT TO RULE 13d-2(a)
Wyndham International, Inc.
(Name of Issuer)
Class A Common Stock, $0.01 par value per share
(Title of Class of Securities)
983101106
(CUSIP Number)
J. Robert Casey, Trustee
The Bonnybrook Trust
c/o Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
(617) 482-1776
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
With a copy to:
Timothy B. Bancroft, Esq.
Goulston & Storrs, P.C.
400 Atlantic Avenue
Boston, Massachusetts 02110-3333
(617) 574-3511
June 30, 1999
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition 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. 983101601 13D Page 2 of 12 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The Bonnybrook Trust
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(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
MA
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 81,490 (see Item 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
0 (see Item 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 81,490 (see Item 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0 (see Item 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
81,490 (see Item 5)
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[X]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.1%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 983101601 13D Page 3 of 12 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The Franklin Trust
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(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
MA
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 58,207 (see Item 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
0 (see Item 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 58,207 (see Item 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0 (see Item 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
58,207 (see Item 5)
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[X]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than .1%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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CUSIP No. 983101601 13D Page 4 of 12 Pages
________________________________________________________________________________
1 NAME OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
The Dartmouth Trust
________________________________________________________________________________
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(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
MA
________________________________________________________________________________
7 SOLE VOTING POWER
NUMBER OF 116,414 (see Item 5)
SHARES _________________________________________________________________
8 SHARED VOTING POWER
BENEFICIALLY
0 (see Item 5)
OWNED BY
_________________________________________________________________
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 116,414 (see Item 5)
PERSON _________________________________________________________________
10 SHARED DISPOSITIVE POWER
WITH
0 (see Item 5)
________________________________________________________________________________
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
116,414 (see Item 5)
________________________________________________________________________________
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[X]
________________________________________________________________________________
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
.1%
________________________________________________________________________________
14 TYPE OF REPORTING PERSON*
OO
________________________________________________________________________________
*SEE INSTRUCTIONS BEFORE FILLING OUT!
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Item 1. Security and Issuer.
The class of equity securities to which this statement relates
is the Class A Common Stock, $0.01 par value per share (the "Shares"), of
Wyndham International, Inc., a Delaware corporation ("Wyndham"). The principal
executive offices of Wyndham are located at 1950 Stemmons Freeway, Suite 6001,
Dallas, Texas 75207.
Item 2. Identity and Background.
(a)-(c), (f). This statement is being filed jointly on behalf
of the following persons (collectively, the "Reporting Persons"): (1) The
Bonnybrook Trust ("Bonnybrook"); (2) The Franklin Trust ("Franklin"); and (3)
The Dartmouth Trust ("Dartmouth").
The trustees of Bonnybrook are Alan M. Leventhal and J. Robert
Casey. The trustees of Franklin are Mark S. Leventhal, Alan M. Leventhal, and J.
Robert Casey. The trustees of Dartmouth are Norman B. Leventhal, Alan M.
Leventhal, and Mark S. Leventhal.
The address of each of the Reporting Persons is c/o The Beacon
Companies, 2 Oliver Street, Boston, Massachusetts 02110.
(d) and (e). None of the Reporting Persons or any of their
trustees has been convicted in a criminal proceeding during the past five years
(excluding traffic violations and similar misdemeanors).
None of the Reporting Persons or any of their trustees has
been party to a civil proceeding of a judicial or administrative body of
competent jurisdiction during the past five years as a result of which it was or
is subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws.
Item 3. Source and Amount of Funds or Other Consideration.
Pursuant to a Securities Purchase Agreement, dated as of
February 18, 1999 and amended as of June 28, 1999 (the "Securities Purchase
Agreement"), by and among Wyndham, Patriot American Hospitality, Inc.
("Patriot"), Patriot American Hospitality Partnership, L.P. ("Patriot OP"),
Wyndham International Operating Partnership, L.P. ("Wyndham OP", and together
with Patriot OP, the "Operating Partnerships") and certain investors named
therein (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 Preferred Stock"), of Wyndham for aggregate
consideration of $1,000,000,000. Certain of the Original Investors subsequently
entered into Assignment and Assumption Agreements (collectively, the
"Assignments" or individually the "Assignment") with certain other investors,
including Bonnybrook, Franklin, and Dartmouth 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 the
Original Investors assigned to the Co-Investors their right to purchase certain
of the shares of Series
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B Preferred Stock that the Original Investors were entitled to purchase under
the Securities Purchase Agreement.
Pursuant to the Securities Purchase Agreement and Assignments,
the Reporting Persons purchased an aggregate of 22,000 shares of Series B
Preferred Stock for an aggregate cash purchase price of $2,200,000. Of this
amount, Bonnybrook purchased 7,000 shares for $700,000, Franklin purchased 5,000
shares for $500,000, and Dartmouth purchased 10,000 shares for $1,000,000.
Each of Bonnybrook, Franklin, and Dartmouth obtained funds to
make the purchases described herein from their respective trust corpuses.
Item 4. Purpose of Transactions.
The Reporting Persons have purchased the Series B Preferred
Stock for general investment purposes and retain the right to change their
investment intent. Subject to market conditions and other factors, including the
restrictive provisions of the Securities Purchase Agreement and the
Stockholders' Agreement described below, the Reporting Persons may acquire or
dispose of securities of Wyndham from time to time in future open-market,
privately negotiated or other transactions. Such acquisitions could include
purchases pursuant to the Rights Offering (as defined below) or pursuant to the
exercise of preemptive rights as described below. In addition, the Reporting
Persons may maintain various credit facilities and arrangements, including
customary margin arrangements, with banks and other financial institutions in
the ordinary course of business and in connection therewith provide to the
lenders as collateral thereunder the shares of Series B Preferred Stock
purchased by them or other securities of Wyndham held by them.
The Series B Preferred Stock is convertible, at the option of
the holder, into shares of Wyndham Class B Common Stock, par value $0.01 per
share (the "Class B Common Stock"), which in turn is convertible on a one for
one basis into the Shares. For each share of Series B Preferred Stock converted
into Class B Common Stock, the holder is entitled to receive that number of
shares of Class B Common Stock equal to $100.00 divided by the conversion price
of the Series B Preferred Stock, which is currently $8.59 per share, subject to
adjustment, in addition to accrued but unpaid dividends. Each share of the
Series B Preferred Stock may also be converted into one share of Series A
Convertible Preferred Stock, $0.01 par value per share (the "Series A Preferred
Stock"), of Wyndham and, other than certain permitted transfers under the
Securities Purchase Agreement, is mandatorily converted into one share of Series
A Preferred Stock if it is transferred to unaffiliated transferees. The Series A
Preferred Stock will be convertible into Shares at the same conversion rate from
time to time in effect at which the Series B Preferred Stock is convertible into
shares of Class B Common Stock.
Both the Series A Preferred Stock and the Series B Preferred
Stock will pay quarterly dividends at the rate per annum of 9.75% of the stated
amount thereof, with a portion paid in cash and a portion paid in additional
shares of Series A Preferred Stock or Series B Preferred Stock, respectively.
The Series A Preferred Stock will vote on an as converted basis with the Shares
on matters submitted to the holders of the Shares and the
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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 Operating Partnership limited partnership interests
may purchase for cash up to 3,000,000 shares of Series A Preferred Stock (the
"Rights Offering") and/or (ii) the sale of specified assets of Wyndham in excess
of a fixed price at or prior to the closing of the Rights Offering, in each case
at a redemption price of 102% of the stated amount of $100 per share, plus
accrued but unpaid dividends to the redemption date.
Under the terms of the restated certificate of incorporation
of Wyndham (the "Restated Certificate"), on June 30, 1999, the Board of
Directors of Wyndham (the "Board") was reconstituted to consist of 19 directors,
including eight Class A directors designated by the Board as it existed prior to
being reconstituted (the "Prior Board"), eight Class B directors designated by
the Investors and three Class C directors mutually designated by the existing
Board of Directors and the Investors. The Board is further classified by term of
office into three classes of directors, each serving a staggered term of three
years, until the annual meeting of Wyndham's stockholders in 2002.
The number of Class B directors that the Investors are
entitled to designate will decrease from seven to zero based on certain
specified beneficial ownership percentages of Wyndham Common Stock as more fully
set forth in the Restated Certificate.
The Securities Purchase Agreement provides that until the June
30, 2004, so long as the Investors collectively own more than 15% of the fully
diluted Wyndham common stock, in the event that Wyndham proposes to sell Wyndham
common stock or securities convertible into Wyndham common stock (other than in
the Rights Offering or during the six month period following June 30, 1999),
each of the Investors will have the right to purchase a portion of the
securities proposed to be sold equal to its percentage ownership of Wyndham's
outstanding securities. To the extent that one or more of the Investors does not
exercise its purchase rights in full, the unexercised portion of the Investor's
purchase rights will be allocated pro rata to the other Investors.
The Securities Purchase Agreement also provides that, during
the six year period following June 30, 1999, the Investors will not (i) acquire
any shares of Wyndham common stock or securities convertible for Wyndham common
stock, unless the securities are acquired (a) directly from Wyndham in a
transaction approved by a majority of the Class A and Class C directors, (b) as
a dividend on the Series B Preferred Stock or upon conversion of the Series B
Preferred Stock, (c) as part of Wyndham's sale of Series A Preferred Stock or
upon conversion of the Series A Preferred Stock, (d) by an affiliate of any
Investor over whom the Investor does not control voting decisions or hold over
50% of
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the outstanding voting securities, (e) as non-voting preferred stock of Wyndham,
(f) in the ordinary course of the Investor's market-making activities or as
investment adviser or broker-dealer or (g) by an employee, partner or
stockholder of an Investor for his individual account if the individual does not
acquire beneficial ownership of over 100,000 shares of Wyndham common stock; or
(ii) make any public announcement or proposal or solicitation of proxies
concerning any business combination, extraordinary transaction, restructuring or
recapitalization involving Wyndham or any affiliate of Wyndham or propose to
seek representation on the Board or seek to control or influence management, the
Board or policies of Wyndham or an affiliate of Wyndham.
As contemplated by the Securities Purchase Agreement, the
Board has adopted a shareholder rights plan (the "Rights Plan") under which
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'
Agreement (the "Stockholders' Agreement"), pursuant to which each of (i) Apollo
Management IV and Apollo Real Estate Management IV (collectively, the "Apollo
Stockholder") and (ii) THL Advisors (together with the Apollo Stockholder, the
"Lead Stockholders") will have the right, for so long as the Investors are
entitled to designate eight Class B directors to the Board, to designate four
directors to the Board. At such time as the Investors are entitled to designate
fewer than eight Class B directors, the right to designate will be allocated as
between the Apollo Stockholder and the THL Advisors based on a specified
formula. For so long as the Stockholders' Agreement is in effect, each of the
Investors has agreed to vote its Shares and Series B Preferred Stock in favor of
each of the director nominees of the Lead Stockholders.
The Stockholders' Agreement provides that, for a five year
period from June 29, 1999, no Investor may offer, sell or otherwise dispose of
its shares of Series B Preferred Stock without the consent of each of the Lead
Stockholders, except for (i) transfers to affiliated transferees, (ii) transfers
of shares pursuant to the registration rights, tag along rights or drag along
provisions described below, (iii) bona fide pledges of shares to a bank,
financial institution or other lender and (iv) certain other permitted
transfers, subject in case of certain of these transfers to the transferee
agreeing to be bound by the provisions of the Stockholders' Agreement. The
Stockholders' Agreement does provide, however, for certain "tag-along rights"
and "drag-along rights" in favor of non-transferring stockholders with respect
to proposed transfers of securities.
On February 18, 1999, the Original Investors entered into a
Registration Rights Agreement (the "Registration Rights Agreement") with
Wyndham, pursuant to which the Investors will 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
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request for a registration by Wyndham between the third and fifth anniversaries
of the date of the Stockholders' Agreement may only be made by the Apollo
Stockholder, THL Advisors or Beacon Capital Partners, L.P. and its affiliates
and (iii) any request for a shelf registration statement on or prior to the
fifth anniversary of the date of the Stockholders' Agreement may be made only by
or with the consent of the Lead Stockholders.
The Securities Purchase Agreement, the Assignment to which any
of the Reporting Persons is a party, the Stockholders' Agreement and the
Registration Rights Agreement described are filed as exhibits to this Schedule
13D and are incorporated herein by reference. The Certificate of Designation,
the Restated Certificate and the Rights Plan have been filed as exhibits to
filings by Wyndham with the Securities and Exchange Commission. The foregoing
descriptions of such agreements are not intended to be complete and are
qualified in their entirety by reference to such exhibits.
Item 5. Interest in Securities of the Issuer.
(a) and (b). By virtue of the Stockholders' Agreement and the
relationships described herein, the Investors may be deemed to constitute a
"group" within the meaning of Rule 13d-5(b) under the Exchange Act. As of the
date hereof, to the knowledge of the Reporting Persons, the Investors
collectively own an aggregate of 116,414,435 Shares (or 41.2% of the Outstanding
Shares (as defined below)). For purposes of calculating ownership percentages in
this Schedule 13D, the number of "Outstanding Shares" includes (i) the
165,886,524 Shares outstanding on July 9, 1999, based on information provided to
the Investors by Wyndham and (ii) the Shares issuable upon conversion of the
Series B Preferred Stock held by the Investor or Investors whose ownership is
being measured, excluding for such purpose the Shares issuable upon conversion
of any other shares of Series B Preferred Stock or other convertible securities.
Each of the Reporting Persons expressly 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.
Bonnybrook has obtained direct beneficial ownership of 81,490
Shares pursuant to the Assignment, representing approximately .05% of the
Outstanding Shares.
Franklin has obtained direct beneficial ownership of 58,207
Shares pursuant to the Assignment, representing approximately .035% of the
Outstanding Shares.
Dartmouth has obtained beneficial ownership of 116,414 Shares
pursuant to the Assignment, representing approximately .07% of the Outstanding
Shares.
The Shares held by Bonnybrook, Franklin, and Dartmouth
combined represent approximately .15% of the Outstanding Shares.
All of the foregoing information as to number of Shares and
percentage of Outstanding Shares beneficially owned is set forth without giving
effect to the accrual of dividends payable in additional shares of Series B
Preferred Stock. In addition, as discussed above, the numbers of Shares listed
above are each subject to reduction of up to 30% if
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redeemed by Wyndham with the proceeds of the Rights Offering, depending upon the
participation of Wyndham's stockholders in the Rights Offering.
Neither the filing of this Schedule 13D nor any of its
contents shall be deemed to constitute an admission that a Reporting Person is
the beneficial owner of any of the Shares other than those which such Reporting
Person has acquired pursuant to the Securities Purchase Agreement or an
Assignment.
(c) The responses to Items 3 and 4 of this Schedule 13D are
incorporated herein by reference.
(d) Not applicable.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
The responses to Items 3, 4 and 5 of this Schedule 13D and the
Exhibits to this Schedule 13D are incorporated herein by reference.
Except for the agreements described in Items 3 and 4, to the
best knowledge of the Reporting Persons, there are no contracts, arrangements,
understandings or relationships (legal or otherwise) between the persons named
in Item 2, and any other person, with respect to any securities of Wyndham
including but not limited to transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit 1:* Joint Filing Agreement dated as of July 12,
1999 by and among the Reporting Persons.
Exhibit 2: Securities Purchase Agreement dated as of
February 18, 1999 by and among Wyndham,
Patriot, Patriot American Hospitality
Partnership, L.P., Wyndham International
Operating Partnership, L.P. and the
investors set forth on the signature pages
thereto (incorporated herein by reference to
Exhibit 99.1 to Wyndham's Current Report on
Form 8-K filed with the Securities and
Exchange Commission on March 2, 1999).
Exhibit 3:* Amendment dated as of June 28, 1999 to
Securities Purchase Agreement dated as of
February 18, 1999 by and among Wyndham,
Patriot, Patriot American Hospitality
Partnership, L.P., Wyndham International
Operating
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<PAGE> 11
Partnership, L.P. and the Investors set
forth on the signature pages thereto.
Exhibit 4:* Stockholders' Agreement dated as of June 29,
1999 by and among the Stockholders named
therein.
Exhibit 5:* Registration Rights Agreement dated as of
February 18, 1999 by and among Wyndham and
the persons listed on the signature pages
thereto.
Exhibit 6:* Assignment and Assumption Agreement dated as
of June 21, 1999 by and among Thomas H. Lee
Equity Fund IV, L.P., Thomas H. Lee Foreign
Fund IV, L.P., and THL-CCI Limited
Partnership, as Assignor, and The Bonnybrook
Trust, The Franklin Trust, and The Dartmouth
Trust, as Assignee.
* Filed herewith.
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SIGNATURES
After reasonable inquiry and to the best knowledge and belief
of the undersigned, each of the undersigned certifies that the information set
forth in this Statement with respect to it is true, complete and correct.
THE BONNYBROOK TRUST
By: /s/ J. Robert Casey
------------------------------
Name: J. Robert Casey
Title: Trustee
THE FRANKLIN TRUST
By: /s/ J. Robert Casey
------------------------------
Name: J. Robert Casey
Title: Trustee
THE DARTMOUTH TRUST
By: /s/ Norman B. Leventhal
------------------------------
Name: Norman B. Leventhal
Title: Trustee
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<PAGE> 1
EXHIBIT 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(f) promulgated under the Securities
Exchange Act of 1934, as amended, the undersigned hereby agree to the joint
filing with all other Reporting Persons listed below on behalf of each of them
of a Statement on Schedule 13D (including any amendments thereto) with respect
to the common stock, par value $.01 per share, of Wyndham International, Inc., a
Delaware corporation. The undersigned further consent and agree to the inclusion
of this Agreement as an Exhibit to such Schedule 13D. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned parties have caused this Agreement
to be executed as of the 12th day of July, 1999.
THE BONNYBROOK TRUST
By: /s/ J. Robert Casey
-----------------------------
Name: J. Robert Casey
Title: Trustee
THE FRANKLIN TRUST
By: /s/ J. Robert Casey
-----------------------------
Name: J. Robert Casey
Title: Trustee
THE DARTMOUTH TRUST
By: /s/ Norman B. Leventhal
-----------------------------
Name: Norman B. Leventhal
Title: Trustee
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<PAGE> 1
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:
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<PAGE> 2
"Notwithstanding anything contained in this Agreement
to the contrary, upon the terms and subject to the
conditions set forth herein, on July 1, 1999, Wyndham
will issue and sell to Beacon, and, in reliance on
the representations and warranties of the Companies
and the Operating Partnerships contained herein,
Beacon will purchase from Wyndham 450,000 Shares (the
"Delayed Purchase Shares") of the 1,500,000 Shares to
be purchased by Beacon pursuant to Section 1.1, for a
purchase price of $100.00 per Share. Beacon, in its
sole discretion, may fund up to $45 million (but only
to the extent that the same, less accrued interest
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."
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<PAGE> 3
6. Form of Bylaws. Exhibit C to the Securities Purchase
Agreement, Form of Amended and Restated Bylaws of Wyndham, is hereby deleted and
replaced in its entirety with the attached Exhibit C.
7. Form of Certificate of Designation of Series B Convertible
Preferred Stock. Exhibit G to the Securities Purchase Agreement, Form of
Certificate of Designation of Series B Convertible Preferred Stock, is hereby
deleted and replaced in its entirety with the attached Exhibit G.
8. Impact of Amendment. All provisions of the Securities Purchase
Agreement and the exhibits thereto not amended by this Amendment shall remain in
full force and effect.
[Remainder of Page Intentionally Left Blank]
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<PAGE> 4
IN WITNESS WHEREOF, each of the undersigned has caused the
foregoing Agreement to be executed by one of its duly authorized signatories as
of the date first above written.
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/
-----------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL, INC.
By: /s/
-----------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
-----------------------------------
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General
Partner
By: /s/
-----------------------------------
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<PAGE> 5
Name:
Title:
Address: 1950 Stemmons Freeway
Suite 6001
Dallas, Texas 75207
[Remainder of page intentionally left blank]
-5-
<PAGE> 6
ORIGINAL INVESTORS:
APOLLO REAL ESTATE INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc., its General Partner
By: /s/
-----------------------------------
Name:
Title:
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
-----------------------------------
Name:
Title:
Address: 1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
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<PAGE> 7
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
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<PAGE> 8
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General
Partner
By: /s/
-----------------------------------
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
-----------------------------------
Name:
Title:
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
-8-
<PAGE> 1
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> 2
TABLE OF CONTENTS
Section Heading Page
- ------- ------- ----
Article 1. Certain Definitions 1
Article 2. Board of Directors 6
Section 2.1. Board of Directors 6
Article 3. Restrictions on Transfer 6
Section 3.1. Restrictions on Transfer 6
Section 3.2. Exceptions to Restrictions 7
Section 3.3. Binding Effect on Transferees 8
Section 3.4. Notifications Regarding Transfers 8
Section 3.5. Restrictions on Conversion 8
Article 4. Tag-Along Rights; Drag-Along Rights 8
Section 4.1. Tag-Along Rights 8
Section 4.2. Drag-Along Rights 9
Article 5. Registration Rights 10
Section 5.1. Registration Rights 10
Article 6. Miscellaneous 11
Section 6.1. Further Actions; Cooperation 11
Section 6.2. Successors and Assigns 12
Section 6.3. Representatives 12
Section 6.4. Amendment; Modification; Waiver 12
Section 6.5. Notices 13
Section 6.6. Entire Agreement: Governing Law 13
Section 6.7. Injunctive Relief13
Section 6.8 Headings 13
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting
the Shares of Common Stock; New Issuances 13
Section 6.10. Counterparts 13
Section 6.11. Jurisdiction; Forum 14
Section 6.12. Termination 14
<PAGE> 3
STOCKHOLDERS' AGREEMENT (this "Agreement"), dated as of June 29, 1999,
by and among the parties named on the signature pages hereto (collectively, the
"Stockholders") and such other persons that become parties to this Agreement as
described herein.
W I T N E S S E T H:
WHEREAS, pursuant to (i) a Securities Purchase Agreement, dated as of
February 18, 1999, as amended, by and among Wyndham International, Inc. (the
"Company"), Patriot American Hospitality, Inc. ("Patriot"), Wyndham
International Operating Partnership, L.P., Patriot American Hospitality
Partnership, L.P. and the persons identified therein as Investors (the "Original
Investors") and (ii) Assignment and Assumption Agreements by and among the
Company, Patriot and the Stockholders, the Stockholders will purchase shares of
Series B Convertible Preferred Stock (the "Shares") of the Company; and
WHEREAS, the parties hereto deem it in their best interests to enter
into this Agreement in order to govern certain of their rights, duties and
obligations in connection with their investment in the Company; and
WHEREAS, the parties hereto also desire to restrict the sale,
assignment, transfer, encumbrance or other disposition of their securities of
the Company and to provide for certain rights and obligations with respect
thereto as hereinafter provided.
NOW, THEREFORE, in consideration of the mutual agreements and
understandings set forth herein, the parties hereto hereby agree as follows:
1. Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" means, as to any Person, (a) any Person which directly or
indirectly controls, is controlled by, or is under common control with such
Person, (b) any Person who is a director, officer, partner or principal of such
Person or of any Person which directly or indirectly controls, is controlled by,
or is under common control with such Person, and (c) any individual who is a
member of the immediate family of any Person described in clause (a) or clause
(b) above. For purposes of this definition, "control" of a Person shall mean the
power, direct or indirect, (i) to vote or direct the voting of 5% or more of the
Voting Stock of such Person or (ii) to direct or cause the direction of the
management and policies of such Person whether by ownership of Capital Stock, by
contract or otherwise.
"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.
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<PAGE> 4
"Apollo Investors" means Apollo Real Estate Investment Fund IV, L.P.,
Apollo Investment Fund IV, L.P., Strategic Real Estate Investments I, LLC and
their respective Permitted Assignees and Permitted Third Party Transferees.
"Apollo Stockholder" means, collectively, Apollo Management IV, L.P.
and Apollo Real Estate Management IV, L.P.
"Beacon Affiliate" means any director or officer, or member of the
immediate family of a director or officer, of any entity that is included within
the definition of "Beacon Stockholder" in office at the time of the relevant
determination, and any corporation, partnership, limited liability company,
trust or other entity that is controlled by, or the equity interests of which
are owned by, any of the foregoing individuals.
"Beacon Stockholder" means, collectively, Beacon Capital Partners,
L.P., Beacon Capital Partners, Inc., BCP Voting, Inc., as voting trustee of the
First Beacon Voting Trust, and any other entity that is an Affiliate of Beacon
Capital Partners, L.P. that becomes a trustee of the First Beacon Voting Trust
or the Second Beacon Voting Trust, if formed, and any successors thereto.
"Beacon Voting Trust" means, collectively, the First Beacon Voting
Trust and the Second Beacon Voting Trust.
"Beacon Voting Trust Agreement" means, collectively, (i) the Voting
Trust Agreement, dated as of June 8, 1999, as amended, by and between Beacon
Capital Partners, L.P., as the initial beneficiary of the First Beacon Voting
Trust, and BCP Voting, Inc, as trustee of the First Beacon Voting Trust, an
accurate copy of which has been provided to the Lead Stockholders, and (ii) if
the Second Beacon Voting Trust is formed, the Voting Trust Agreement to be
entered into by and between Beacon Capital Partners, L.P., as the initial
beneficiary of the Second Beacon Voting Trust, and the trustee of the Second
Beacon Voting Trust; provided, that (x) the proposed form of the Voting Trust
Agreement for the Second Beacon Voting Trust and the proposed form of any
amendment to the Voting Trust Agreement for the First Beacon Voting Trust or the
Second Beacon Voting Trust shall be provided to the Lead Stockholders for their
review at least ten days in advance of the earlier of its execution or
distribution and (y) the Lead Stockholders shall have approved in advance of the
earlier of its execution or distribution any provision of the Second Beacon
Voting Trust or any amendment to the Voting Trust Agreement for the First Beacon
Voting Trust or the Second Beacon Voting Trust that alters or is otherwise
inconsistent with the definition of "Permitted Voting Trust Transfer" contained
in this Agreement or any other provision affecting those matters addressed in
this Agreement.
"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.
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<PAGE> 5
"Capital Stock" means and includes (i) any and all shares, interests,
participations or other equivalents of or interests in (however designated)
corporate stock of any Person, including, without limitation, shares of
preferred or preference stock, (ii) all partnership interests (whether general
or limited) in any Person which is a partnership, (iii) all membership interests
or limited liability company interests in any limited liability company and (iv)
all equity or ownership interests in any Person of any other type.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company as in effect on the date hereof and as hereafter amended,
modified, supplemented or restated.
"Class A Common Stock" means the Class A common stock, par value $0.01
per share, of the Company.
"Class B Common Stock" means the Class B common stock, par value $0.01
per share, of the Company.
"Common Stock" means the Class A Common Stock and Class B Common Stock
or, if the Company's common stock ceases to be so designated, the common stock,
par value $0.01 per share, of the Company.
"Company" means Wyndham International, Inc., a Delaware corporation,
and any successor thereto.
"Equity Securities" means the Common Stock and Preferred Stock and any
other securities convertible into, exercisable for or exchangeable with Common
Stock or Preferred Stock and other equity security issued by the Company.
"First Beacon Voting Trust" means the Beacon Capital Partners, L.P.
Voting Trust.
"Lead Stockholders" means the Apollo Stockholder and the Lee
Stockholder; provided that if either of the Lead Stockholders and its respective
Affiliates cease to collectively beneficially own at least 10% of the shares of
Common Stock (including shares of Common Stock issuable upon conversion of
securities convertible, exchangeable or exercisable for shares of Common Stock)
beneficially owned by such Lead Stockholder and its Affiliates immediately
following the closing of the transactions 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).
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<PAGE> 6
"Lee Investors" means Thomas H. Lee Equity Fund IV, L.P., Thomas H. Lee
Foreign Fund IV, L.P., Thomas H. Lee Charitable Investment L.P., THL-CCI Limited
Partnership, the Beacon Stockholder and their respective Permitted Assignees and
Permitted Third Party Transferees.
"Lee Stockholder" means THL Equity Advisors IV, LLC, in its capacity as
general partner of Thomas H. Lee Equity Fund IV, L.P.
"Permitted Assignee" shall have the same meaning as set forth in the
Securities Purchase Agreement.
"Permitted Beacon Voting Trust Transfer" means a transfer of Shares
through a termination of the Beacon Voting Trust on or after the second
anniversary of the date of this Agreement that complies with each of the
following requirements: (i) the termination shall be made pursuant to Section
15(a)(iv) of the Beacon Voting Trust Agreement at the request of beneficiaries
of the Beacon Voting Trust that shall not include the Beacon Stockholder or any
Beacon Affiliate, such termination shall not have been directly or indirectly
proposed, solicited or encouraged by the Beacon Stockholder (other than the
required action as trustee under such Section 15(a)(iv)) or by any Beacon
Affiliate and the Beacon Stockholder and the Beacon Affiliates shall have used
their reasonable efforts to discourage such termination; (ii) the Shares so
transferred shall be converted into shares of Series A Preferred Stock; (iii)
any shares of Series A Preferred Stock to be received in connection with such
termination by the Beacon Stockholder or by any Beacon Affiliate shall remain
subject to the transfer, conversion and other restrictions of this Agreement and
the Beacon Stockholder and any such Beacon Affiliate shall execute any agreement
required under Section 3.3 of this Agreement to evidence the foregoing; (iv)
each of the transferees of such Shares shall have acknowledged in form and
substance satisfactory to the Lead Stockholders such transferee's agreement to
be bound by Section 5.1(b) of this Agreement; and (v) such termination and the
transfer of Shares made in connection therewith shall be made in compliance with
all applicable law.
"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.
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<PAGE> 7
"Registrable Securities" means (i) any shares of Class B Common Stock
issued or issuable upon conversion of any of the Shares, (ii) any shares of
Series A Preferred Stock issued or issuable upon conversion of the Shares, (iii)
any shares of Class A Common Stock issued or issuable upon conversion of the
Series A Preferred Stock described in clause (ii) above, and (iv) any securities
issued or issuable with respect to any Series A Preferred Stock, Series B
Preferred Stock, Class A Common Stock or Class B Common Stock described in
clauses (i), (ii) and (iii) above by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger,
consolidation, reorganization or otherwise.
"Registration Rights Agreement" shall mean the Registration Rights
Agreement, dated as of February 18, 1999, by and among the Company and the
persons listed on the signature pages thereof.
"Restated Certificate of Incorporation" means the Restated Certificate
of Incorporation of the Company, as proposed to be filed with the Secretary of
State of the State of Delaware on the date of the Closing under the Securities
Purchase Agreement.
"Required Investor Director Percentage" means 1.0 divided by the total
number of Class B directors of the Company that may be elected pursuant to
Section V(D) of the Restated Certificate of Incorporation.
"Second Beacon Voting Trust" means, collectively, the Beacon Capital
Partners, L.P. Voting Trust II and the Beacon Capital Partners, L.P. Voting
Trust III, in each case if formed.
"Securities Act" means, as of any date, the Securities Act of 1933, as
amended, or any similar Federal statute then in effect and superseding such act,
and any reference to a particular section thereof shall include a reference to
the comparable section, if any, of any such similar Federal statute, and the
rules and regulations thereunder.
"Series A Preferred Stock" means the Series A Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred
Stock, par value $0.01 per share, of the Company.
"Shares" shall have the meaning set forth in the preamble of this
Agreement; provided, however, that unless the context otherwise requires,
references in this Agreement to the "Shares" shall be deemed to include
additional shares of Series B Preferred Stock that are issued pursuant to the
Certificate of Designation for such Preferred Stock.
"Stockholders" shall mean (i) the Stockholders named on the signature
page hereto and (ii) each Third Party Transferee who becomes a party to or bound
by the provisions of this Agreement in accordance with the terms hereof, in each
case for so long as such person continues to hold Equity Securities in the
Company.
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<PAGE> 8
"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).
2. Board of Directors
Section 2.1. Board of Directors. (a) For so long as this Agreement is
in effect, each of the Stockholders shall vote all of the Voting Stock owned or
held of record by such Stockholder so as to elect, and to continue in office,
each of the directors of the Company designated by the Lead Stockholders. So
long as the Stockholders are entitled to elect eight Class B directors pursuant
to the Restated Certificate of Incorporation, the Apollo Stockholder shall have
the right to designate four Class B directors of the Company and the Lee
Stockholder shall have the right to designate four Class B directors of the
Company. In the event that the number of Class B directors of the Company that
the Stockholders are entitled to elect is reduced to below eight pursuant to
Section V(D) of the Restated Certificate of Incorporation, (i) the number of
Class B directors that the Lee Stockholder shall be entitled to designate shall
be equal to the Lee Director Percentage divided by the Required Investor
Director Percentage (rounded up or down to the nearest integer) and (ii) the
number of Class B directors that the Apollo Stockholder shall be entitled to
designate shall be equal to the total number of Class B directors of the Company
that the Stockholders are entitled to elect pursuant to Section V(D) of the
Restated Certificate of Incorporation minus the number of Class B directors that
the Lee Stockholder is entitled to designate pursuant to this Section 2.1(a).
(b) If either of the Lead Stockholders shall notify the other
Stockholders of its desire to remove, with or without cause, any director of the
Company previously designated by it, each Stockholder shall vote all of the
shares of Voting Stock owned or held by such Stockholder and take all other
necessary actions to cause the removal of any director designated by such Lead
Stockholder pursuant to Section 2.1(a).
(c) In the event that any designee of either Lead Stockholder
shall for any reason cease to serve as a member of the Board of Directors during
his term of office, the resulting vacancy on the Board of Directors will be
filled by a representative designated by such Lead Stockholder.
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
-6-
<PAGE> 9
shares of Common Stock or Preferred Stock issuable upon conversion of Shares, or
options, warrants or rights to subscribe for or purchase Shares, Preferred Stock
or Common Stock that may be issued hereafter to such Stockholder, except as
provided in this Article 3. In addition to the other restrictions contained in
this Article 3, each Stockholder agrees that it will not, directly or
indirectly, transfer any of its Shares or any shares of Common Stock or
Preferred Stock issuable upon conversion of Shares except as permitted under the
Securities Act and other applicable securities laws.
(b) Any attempt by any Stockholder to transfer any Shares and
any Common Stock or Preferred Stock issuable upon conversion of the Shares not
in compliance with this Agreement shall be null and void. Without limiting the
foregoing, it is expressly understood and agreed that any transfer of Shares by
the Beacon Voting Trust that is not the Permitted Beacon Voting Trust Transfer
or a transfer otherwise expressly permitted under this Agreement shall be null
and void and not be recorded on the transfer books of the Company.
Section 3.2. Exceptions to Restrictions. The provisions of Section 3.1
shall not apply to any of the following transfers:
(a) Any transfer approved by each of the Lead Stockholders.
(b) Any transfer from any Stockholder to one or more of its
respective Permitted Assignees.
(c) Any transfer of Shares, or Common Stock or Preferred Stock
issuable upon conversion of such Shares, in accordance with Article 4 or 5
hereof.
(d) Any bona fide pledge of the Shares, or Common Stock or
Preferred Stock issuable upon conversion of such Shares, to a bank, financial
institution or other lender.
(e) The Permitted Beacon Voting Trust Transfer.
The exceptions in clauses (a), (b) or (d) above are subject to the
condition that each such transferee referred to therein (each a "Third Party
Transferee") execute (or, in the case of clause (d) above, that the pledging
Stockholder use its reasonable efforts to cause the pledgee referred to therein
to execute prior to any foreclosure of the shares so pledged) the agreement
referred to in Section 3.3 hereof. The provisions of this Agreement shall be
applied to the Shares, including the shares of Common Stock or Preferred Stock
issuable upon conversion of Shares, acquired by any Third Party Transferee of a
Stockholder in the same manner and to the same extent as such provisions were
applicable to such Shares, or Common Stock or Preferred Stock issuable upon
conversion of Shares, in the hands of such Stockholder. Any reference in this
Agreement to the Stockholders shall be deemed to include each Stockholder and
its respective Third Party Transferees.
No transfer of any Shares, or shares of Common Stock or Preferred Stock
issuable upon conversion of Shares, to a Third Party Transferee shall be
effective unless such transfer is made
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<PAGE> 10
(i) pursuant to an effective registration statement under the Securities Act and
is qualified under applicable state securities or blue sky laws or (ii) without
registration under the Securities Act and qualification under applicable state
securities or blue sky laws, as a result of the availability of an exemption
from registration and qualification under such laws, and such Stockholder shall
have furnished to the Lead Stockholders a certificate to that effect; provided,
however, that no such certificate or opinion of counsel shall be required in
connection with a transfer of shares of Common Stock pursuant to Sections 4.1 or
4.2 hereof.
Section 3.3. Binding Effect on Transferees. The obligations of a party
hereto shall be binding upon any transferee to whom Shares or Common Stock or
Preferred Stock issuable upon conversion of such Shares are transferred by such
party, whether or not such transfer is permitted under the terms of this
Agreement; provided, that the foregoing shall not apply to (a) transferees
(other than the Beacon Affiliates) pursuant to the Permitted Beacon Voting Trust
Transfer, (b) transferees pursuant to transfers permitted under Section 3.2(c)
or (c) transferees for which the transfer occurs following the fifth anniversary
of the date of this Agreement (transferees permitted under clause (a), (b) or
(c), collectively, the "Exempted Transferees") . Prior to consummation of any
such transfer other than to an Exempted Transferee, such party shall cause the
transferee to execute an agreement in form and substance reasonably satisfactory
to the Lead Stockholders, providing that such transferee shall be bound by and
shall fully comply with the terms of this Agreement.
Section 3.4. Notifications Regarding Transfers. To the extent that any
Stockholder proposes a transfer pursuant to Section 3.2, such Stockholder shall
provide notice to the Lead Stockholders at least ten Business Days prior to the
proposed transfer date of the number of Shares proposed to be transferred. Not
less that two Business Days prior to a proposed transfer date requiring the
approval of the Lead Stockholders, the Lead Stockholders shall notify such
Stockholder of whether the transfer has been approved, it being agreed and
understood that the Permitted Beacon Voting Trust Transfer shall not require
such approval.
Section 3.5. Restrictions on Conversion. Each Stockholder understands
and agrees that, for a period of five years following the date of this
Agreement, such Stockholder will not convert any Shares into shares of Common
Stock or Series A Preferred Stock without the consent of each of the Lead
Stockholders, except in connection with (i) an exercise of such Stockholder's
rights under Section 4.1 in connection with a sale of Shares by one of the Lead
Stockholders, (ii) a sale of Registrable Securities pursuant to Section 5.1 or
(iii) the Permitted Beacon Voting Trust Transfer or a subsequent conversion of
shares of Series A Preferred Stock received thereunder (other than by a Beacon
Affiliate).
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),
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<PAGE> 11
(c), (d) and (e) hereof, (ii) transactions where rights are exercised pursuant
to Section 4.2 hereof and (iii) sales pursuant to Article 5 hereof or in
connection with a sale pursuant to Rule 144 under the Securities Act of 1933,
each Stockholder shall refrain from effecting any transfer of Shares, Series A
Preferred Stock or Class B Common Stock unless, prior to the consummation
thereof, the other Stockholders shall have been afforded the opportunity to join
in such transfer on a pro rata basis, as provided in this Section 4.1 (each such
Stockholder, a "Tag-Along Person").
(b) Prior to consummation of such proposed transfer, the
Stockholder proposing a transfer shall cause the person or group that proposes
to acquire such shares (the "Proposed Purchaser") to offer in writing (the
"Tag-Along Offer") to purchase Shares, Series A Preferred Stock or Class B
Common Stock owned by the Tag-Along Person, such that the number of Shares,
Series A Preferred Stock or Class B Common Stock so offered to be purchased from
the Tag-Along Person shall be equal to the product obtained by multiplying the
aggregate number of Shares, Series A Preferred Stock or Class B Common Stock
proposed to be purchased by the Proposed Purchaser by such Tag-Along Person's
Pro Rata Portion. If the Purchase Offer is accepted by any Tag-Along Person,
then the number of Shares, Series A Preferred Stock or Class B Common Stock to
be sold to the Proposed Purchaser by the Stockholder proposing the transfer,
shall be reduced by the aggregate number of Shares, Series A Preferred Stock or
Class B Common Stock to be purchased by the Proposed Purchaser from such
Tag-Along Person pursuant thereto. Such purchase shall be made on the same terms
and conditions (including timing of receipt of consideration) as the Proposed
Purchaser shall have offered to purchase Shares, Series A Preferred Stock or
Class B Common Stock to be sold by the Stockholder who proposed the transfer
(net, in the case of any options, warrants or rights, of any amounts required to
be paid by the holder upon exercise thereof). The Tag-Along Person shall have 20
days from the date of receipt of the Purchase Offer during which to accept such
Purchase Offer, and the closing of such purchase shall occur within 30 days
after such acceptance or at such other time as the Tag-Along Person and the
Proposed Purchaser may agree.
Section 4.2. Drag-Along Rights. If both of the Lead Stockholders
propose a transfer in connection with a sale or exchange, whether directly or
pursuant to a merger, consolidation or otherwise (a "Drag-Along Sale"), the Lead
Stockholders may require all other Stockholders to sell all Shares proposed to
be sold therein ("Drag-Along Rights") then held by every Stockholder, for the
same consideration and otherwise on the same terms and conditions (including
timing of receipt of consideration) as the sale by Lead Stockholders; provided,
however, that if either of the Lead Stockholders and its respective Affiliates
cease to collectively beneficially own at least 20% of the shares of Common
Stock (including shares of Common Stock issuable upon conversion of securities
convertible, exchangeable or exercisable for shares of Common Stock)
beneficially owned by them immediately following the closing of the transactions
contemplated by the Securities Purchase Agreement, Stockholders collectively
holding more than 50% of the voting power represented by the outstanding Shares
and shares of Class B Common Stock (the "Majority Stockholders") shall have the
ability to exercise the Drag-Along Rights described in this Section 4.2.
-9-
<PAGE> 12
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.
The Lead Stockholders or the Majority Stockholders, as
applicable, shall have a period of 90 days from the date of receipt of the
Drag-Along Notice to consummate the Drag-Along Sale on the terms and conditions
set forth in such Drag-Along Sale Notice. If the Drag-Along Sale shall not have
been consummated during such period, the Lead Stockholders or the Majority
Stockholders, as applicable, shall return to each of the Stockholders all
certificates or other evidence of title and ownership representing shares that
such Stockholders delivered for transfer pursuant hereto, together with any
documents in the possession of the Lead Stockholders or the Majority
Stockholders, as applicable, executed by the other Stockholders in connection
with such proposed transfer, and all the restrictions on transfer contained in
this Agreement or otherwise applicable at such time with respect to shares owned
by the Stockholders shall again be in effect.
Concurrently with the consummation of the transfer of shares
pursuant to this Section 4.2, the Lead Stockholders or the Majority
Stockholders, as applicable, shall give notice thereof to all Stockholders,
shall remit to each of the Stockholders who have surrendered their certificates
or other evidence of title and ownership the total consideration (by bank or
certified check) for the shares transferred pursuant hereto and shall furnish
such other evidence of the completion and time of completion of such transfer
and the terms thereof as may be reasonably requested by such Stockholders.
5. Registration Rights
Section 5.1. Registration Rights.
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<PAGE> 13
(a) Each of the Stockholders shall be entitled to the benefits
of, and shall be bound by the obligations of, the Registration Rights Agreement
with respect to any Registrable Securities held by such Stockholder as if the
Stockholder were a party to the Registration Rights Agreement; provided,
however, that (i) any request for a Required Registration (as such term is
defined in the Registration Rights Agreement) pursuant to Section 2.1(a) of the
Registration Rights Agreement made on or prior to the third anniversary of the
date of this Agreement shall only be made by or with the consent of both of the
Lead Stockholders, (ii) any request for a Required Registration pursuant to
Section 2.1(a) of the Registration Rights Agreement made during the period
following the third anniversary of the date of this Agreement through the fifth
anniversary of the date of this Agreement shall only be made by the Apollo
Stockholder, the Lee Stockholder or the Beacon Stockholder and (iii) any request
for a Shelf (as such term is defined in the Registration Rights Agreement)
pursuant to Section 2.1(a) of the Registration Rights Agreement made on or prior
to the fifth anniversary of the date of this Agreement shall only be made by or
with the consent of both of the Lead Stockholders. Notwithstanding the
foregoing, each of the Stockholders shall be entitled to exercise its rights to
include its Registrable Securities in a registration effected by the Company
pursuant to Section 2.1(b) of the Registration Rights Agreement if such
registration is a Required Registration made in accordance with the immediately
preceding sentence or if either Lead Stockholder is including Registrable
Securities in such registration. Each of the Lead Stockholders agrees for the
benefit of the other Lead Stockholder that it will not, without the approval of
the other Lead Stockholder, include its Registrable Securities in a registration
effected by the Company pursuant to Section 2.1(b) of the Registration Rights
Agreement during the three year period following the date of this Agreement.
(b) Notwithstanding anything else in this Agreement or in the
Registration Rights Agreement to the contrary, in the event that the Permitted
Beacon Voting Trust Transfer occurs, none of the shares of Preferred Stock or
Common Stock that are received by the beneficiaries of the Beacon Voting Trust
in connection therewith or are issued or issuable upon conversion of such shares
or shares received upon such conversion shall be Registrable Securities, other
than those shares that are held by the Beacon Stockholder or by a Beacon
Affiliate and remain subject to the transfer, conversion and other restrictions
of this Agreement. The Beacon Stockholder, in its capacities as the trustee and
initial beneficiary of the First Beacon Voting Trust and the Second Beacon
Voting Trust, hereby consents and agrees to be bound by the provisions of this
Section 5.1(b) on behalf of itself and all future beneficiaries of the Beacon
Voting Trust and acknowledges and agrees that it has the sole responsibility to
notify all such beneficiaries or transferees of Shares owned by the Beacon
Voting Trust of the terms of this Section 5.1(b) and the fact that they are
bound thereby.
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
-11-
<PAGE> 14
the generality of the foregoing, each of the Stockholders (i) acknowledges that
the Stockholders will prepare and file with the Securities and Exchange
Commission filings under the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder (the "Exchange Act"), including
under Section 13(d) of the Exchange Act, relating to their beneficial ownership
of the Securities and (ii) agrees to use its reasonable efforts to assist and
cooperate with the other parties in promptly preparing, reviewing and executing
any such filings under the Exchange Act, including any amendments thereto.
Section 6.2. Successors and Assigns. Except as otherwise
provided herein, all the terms and provisions of this Agreement shall be binding
upon, shall inure to the benefit of and shall be enforceable by the respective
successors and assigns of the parties hereto. No Stockholder may assign any of
its rights hereunder to any Person other than a transferee that has complied in
all respects with the requirements of this Agreement (including, without
limitation, Section 3.4 hereof). If any transferee of any Stockholder shall
acquire any Shares or Common Stock issuable upon conversion of such Shares, in
any manner, whether by operation of law or otherwise, such shares shall be held
subject to all of the terms of this Agreement, and by taking and holding such
shares such Person shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement.
Section 6.3. Representatives. Each of the Stockholders hereby
designates and appoints (and each Third Party Transferee of each such
Stockholders is hereby deemed to have so designated and appointed) the Lead
Stockholders to serve as the representatives of each such Stockholder to
administer and make determinations as to matters arising or contemplated by the
Securities Purchase Agreement and related documentation, including without
limitation indemnification obligations, disputes and other rights and
obligations. Each of the Stockholders hereby agrees and acknowledges that the
Lead Stockholders shall be the only persons authorized to take any action so
required, authorized or contemplated by the Securities Purchase Agreement by
each such person. Each such person hereby authorizes (and each such Third Party
Transferee shall be deemed to have authorized) the other parties hereto to
disregard any notice or other action taken by such person pursuant to the
Securities Purchase Agreement except for the Lead Stockholders. The other
parties hereto are and will be entitled to rely on any action so taken by the
Lead Stockholders.
Section 6.4. Amendment; Modification; Waiver. No provision of
this Agreement may be amended, modified or waived except by an instrument in
writing executed by the Majority Stockholders at the time of such proposed
amendment, modification or waiver; provided, however, that, so long as either of
the Lead Stockholders and their respective Affiliates beneficially own at least
20% of the shares of Common Stock (including shares of Common Stock issuable
upon conversion of securities convertible, exchangeable or exercisable for
shares of Common Stock) initially owned by such Stockholders at the closing of
the transactions contemplated by the Securities Purchase Agreement, this
Agreement may not be amended or modified without such Lead Stockholder's
consent.
-12-
<PAGE> 15
Section 6.5. Notices. All notices and other communications
provided for hereunder shall be in writing by hand delivery, telex, telecopier,
or any courier guaranteeing overnight delivery (i) if to the Stockholders as of
the date hereof, the address set forth next to the Stockholder's name on the
signature pages hereof, with a copy to Randall H. Doud, Esq., telecopier number
(212) 735-2000, and (ii) with respect to each Stockholder who becomes such after
the date hereof, the address of such Stockholder in the stock records of the
Company. All such communications shall be deemed to have been given or made when
so delivered by hand or sent by telecopy, or three business days after being so
mailed.
Section 6.6. Entire Agreement: Governing Law. This Agreement
and the other writings referred to herein or delivered pursuant hereto which
form a part hereof contain the entire agreement among the parties hereto with
respect to the subject transactions contemplated hereby and supersede all prior
oral and written agreements and memoranda and undertakings among the parties
hereto with regard to this subject matter.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING EFFECT TO THE
CHOICE OF LAW PRINCIPLES THEREOF).
Section 6.7. Injunctive Relief. The Stockholders acknowledge
and agree that a violation of any of the terms of this Agreement will cause the
Stockholders irreparable injury for which an adequate remedy at law is not
available. Therefore, the Stockholders agree that each Stockholder shall be
entitled to, an injunction, restraining order or other equitable relief from any
court of competent jurisdiction, restraining any Stockholder from committing any
violations of the provisions of this Agreement.
Section 6.8. Headings. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
Section 6.9. Recapitalizations, Exchanges, Etc. Affecting the
Shares of Common Stock; New Issuances. The provisions of this Agreement shall
apply, to the full extent set forth herein with respect to the Shares and Common
Stock and Preferred Stock issuable upon conversion of such Shares and to any and
all equity or debt securities of the Company or any successor or assign of the
Company (whether by merger, consolidation, sale of assets, or otherwise) which
may be issued in respect of, in exchange for, or in substitution of, such equity
or debt securities and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, reclassifications, recapitalizations,
reorganizations and the like occurring after the date hereof.
Section 6.10. Counterparts. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
-13-
<PAGE> 16
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:
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;
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
waives, to the fullest extent permitted by law, any right it
may have to a trial by jury in any Proceeding.
Section 6.12. Termination. Upon the mutual consent of all of
the parties hereto or at such earlier time as each of the Lead Stockholders and
its respective Affiliates ceases to collectively beneficially own at least 10%
of the shares of Common Stock (including shares of Common Stock issuable upon
conversion of securities convertible, exchangeable or exercisable for shares of
Common Stock) beneficially owned by such Lead Stockholder and its Affiliates
immediately following the closing of the transactions contemplated by the
Securities Purchase Agreement, this Agreement shall terminate and be of no
further force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
APOLLO REAL ESTATE
INVESTMENT FUND IV, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General Partner
By: /s/
--------------------------------
Name:
Title:
Address: c/o Apollo Real Estate
-14-
<PAGE> 17
Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
-------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
----------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
----------------------------
Name:
Title:
-15-
<PAGE> 18
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
----------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
BEACON CAPITAL PARTNERS, L.P.
By: Beacon Capital Partners, Inc., its General Partner
By: /s/
-----------------------------------
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
-16-
<PAGE> 19
BCP VOTING, INC., as Trustee for the Beacon
Capital Partners, L.P. Voting Trust
By: /s/
----------------------------------
Name:
Title:
Address: 1 Federal Street
26th Floor
Boston, Massachusetts 02110
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
----------------------------------
Name:
Title:
Address: 1995 University Avenue
Suite 550
Berkeley, California 94704
AIF/THL PAH, LLC
By: /s/
----------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
New York, NY 10019
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners, its General Partner
By: /s/
---------------------------------
Name:
Title:
Address: 380 Madison Avenue
12th Floor
New York, New York 10017
-17-
<PAGE> 20
CMS DIVERSIFIED PARTNERS, L.P.
By: CMS/DP Associates L.P., a general partner
By: MSPS/DP, Inc., its general partner
By: /s/
-------------------------------
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: /s/
-------------------------------
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: /s/
-------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
-18-
<PAGE> 21
By: CMS 1997 Investment Partners, L.P.,
a Delaware limited partnership
By: CMS 1997, Inc., a Delaware corporation
By: /s/
-------------------------------
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: /s/
------------------------------
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: /s/
------------------------------
Name:
Title:
Address: 1926 Arch Street
Philadelphia, PA 19103
-19-
<PAGE> 22
GUAYACAN PRIVATE EQUITY FUND
LIMITED PARTNERSHIP
By: /s/
---------------------------------
Name:
Title:
Address: 206 Tetuan Street
San Juan, Puerto Rico 00902
CKE ASSOCIATES LLC
By: /s/
--------------------------------
Name:
Title:
Address: 9465 Wilshire Boulevard
Suite 519
Beverly Hills, CA 90212
PW HOTEL I, LLC
By: /s/
----------------------------------
Name:
Title:
Address: 1285 Avenue of the Americas
New York, NY 10019
THE DARTMOUTH TRUST
By: /s/
----------------------------------
Name:
Title:
Address:
-20-
<PAGE> 23
THE BONNYBROOK TRUST
By: /s/
----------------------------------
Name:
Title:
Address:
THE FRANKLIN TRUST
By: /s/
----------------------------------
Name:
Title:
Address:
APOLLO OVERSEAS PARTNERS IV, L.P.
By: Apollo Advisors, IV, L.P., its General
Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
----------------------------------
Name:
Title:
Address: c/o Apollo Management IV, L.P.
1301 Avenue of the Americas
38th Floor
New York, New York 10019
-21-
<PAGE> 24
THOMAS H. LEE FOREIGN FUND IV-B, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------
Name:
Title:
Address: 75 State Street
Suite 2600
Boston, Massachusetts 02109
Pursuant to the power of attorney executed by the persons listed on
Schedule I hereto in favor of, and delivered to, the undersigned
/s/
-------------------------------
Todd M. Abbrecht
Attorney-in-fact
-22-
<PAGE> 25
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
-23-
<PAGE> 1
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> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Section 1. Skadden numbering in effect.Exceptions to the current outline style can be
created by pressing CTRL+SHIFT+F5. This inserts only a ParaNum code. You may type any
additional text or formatting codes that you need, such as brackets or unusual indents.
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
(b) Amendments and Waivers...................................................................23
(c) Notices..................................................................................24
(d) Successors and Assigns...................................................................24
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable Securities.....................25
(f) Counterparts.............................................................................25
(g) Descriptive Headings, Etc................................................................25
(i) Governing Law............................................................................26
(j) Specific Performance.....................................................................26
(k) Entire Agreement.........................................................................26
</TABLE>
(i)
<PAGE> 3
REGISTRATION RIGHTS AGREEMENT (the "Agreement"), dated as of
February 18, 1999, by and among Wyndham International, Inc., a Delaware
corporation ("Wyndham"), the other Persons (as hereinafter defined) listed on
the signature pages hereof (herein referred to collectively, along with their
respective affiliates and successors who from and after the date hereof acquire
or are otherwise the transferee of any Registrable Securities (as hereinafter
defined), as the "Initial Holders" and individually, as an "Initial Holder") and
any other Person that shall from and after the date hereof acquire or otherwise
be the transferee of any Registrable Securities and who shall be a Permitted
Transferee (as hereinafter defined) of any Initial Holder (herein referred to
collectively as the "Holders" and individually as a "Holder").
WHEREAS, Wyndham and Patriot American Hospitality, Inc.
("Patriot" and, together with Wyndham, the "Companies"), Wyndham International
Operating Partnership, L.P. and Patriot American Hospitality Partnership, L.P.
have entered into a Securities Purchase Agreement, dated as of February 18, 1999
(the "Securities Purchase Agreement"), with the Initial Holders, which provides,
upon the terms and subject to the conditions thereof, for the purchase by the
Initial Holders of shares of Wyndham's Series B Convertible Preferred Stock, par
value $0.01 per share (the "Series B Preferred Stock");
WHEREAS, the Series B Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class B Common Stock, par value
$0.01 per share (the "Class B Common Stock"), of Wyndham; and
WHEREAS, in the event of any transfer of any shares of Series
B Preferred Stock to any Person other than an Initial Holder, such shares of
Series B Preferred Stock will automatically convert, upon the terms and subject
to the conditions set forth in the Certificate of Designation relating thereto,
into shares of Series A Convertible Preferred Stock, par value $0.01 per share
(the "Series A Preferred Stock"), of Wyndham;
WHEREAS, the Series A Preferred Stock will be convertible,
upon the terms and subject to the conditions set forth in the Certificate of
Designation relating thereto, into shares of Class A Common Stock, par value
$0.01 per share (the "Class A Common Stock"), of Wyndham;
<PAGE> 4
WHEREAS, in the event of any transfer of any shares of Class B
Common Stock to any Person other than an Initial Holder, such shares of Class B
Common Stock will automatically convert, upon the terms and subject to the
conditions set forth in the Restated Certificate of Incorporation of Wyndham;
and
WHEREAS, in order to induce the Initial Holders to complete
the transactions contemplated by the Securities Purchase Agreement, Wyndham has
agreed to provide registration rights on the terms and subject to the conditions
provided herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
Section 1. Definitions.
(1) As used in this Agreement, the following terms shall have
the following meanings:
"Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act.
"Blackout Period" shall have the meaning set forth in Section
2(a)(i).
"Class A Common Stock" shall have the meaning set forth in the
preamble; provided, that if there shall be only one authorized class of
Wyndham's common stock at the time, Class A Common Stock shall be deemed to
refer to such common stock.
"Class B Common Stock" shall have the meaning set forth in the
preamble.
"Closing" shall mean the date upon which the purchase and sale
of the Preferred Stock pursuant to the Securities Purchase Agreement occurs.
"Companies" shall have the meaning set forth in the preamble
and shall also include Patriot's and Wyndham's successors.
2
<PAGE> 5
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"Holder" shall have the meaning set forth in the preamble.
"Incidental Registration" shall mean a registration required
to be effected by Wyndham pursuant to Section 2(b).
"Incidental Registration Statement" shall mean a registration
statement of Wyndham, as provided in Section 2(b), which covers any of the
Registrable Securities on an appropriate form in accordance with the Securities
Act and all amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Initial Holder(s)" shall have the meaning set forth in the
preamble.
"Majority Holders" shall mean Holders of the Registrable
Securities as to which registration has been requested representing in the
aggregate a majority of such shares beneficially owned by Holders.
"Market Value" shall mean, with respect to the Series A
Preferred Stock or the Class A Common Stock, the average, rounded to the nearest
cent ($0.01), of the closing price per share of the Series A Preferred Stock or
the Class A Common Stock, respectively, on the New York Stock Exchange for
twenty consecutive calendar days ending on the trading day immediately preceding
the date in question.
"NASD" shall mean the National Association of Securities
Dealers, Inc.
"Permitted Transferee" shall mean any Person which would be a
"qualified institutional buyer" within the meaning of Rule 144A under the
Securities Act.
"Person" shall mean any individual, limited or general
partnership, corporation, trust, joint venture, association, joint stock company
or unincorporated organization.
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"Prospectus" shall mean the prospectus included in a
Registration Statement, including any preliminary Prospectus, and any such
Prospectus as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities and by
all other amendments and supplements to such Prospectus, including
post-effective amendments, and in each case including all material incorporated
by reference therein.
"Registrable Securities" shall mean (i) any shares of Class B
Common Stock issued or issuable upon conversion of any shares of Series B
Preferred Stock, (ii) any shares of Series A Preferred Stock issued or issuable
upon conversion of the shares of Series B Preferred Stock, (iii) any shares of
Class A Common Stock issued or issuable upon conversion of any shares of Series
A Preferred Stock described in clause (ii) above, and (iv) any securities issued
or issuable with respect to any Series A Preferred Stock, Series B Preferred
Stock, Class A Common Stock or Class B Common Stock described in clauses (i),
(ii) and (iii) above by way of stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation,
reorganization or otherwise.
"Registration Expenses" shall mean (i) all registration,
listing, qualification and filing fees (including NASD filing fees), (ii) fees
and disbursements of counsel for Wyndham, (iii) accounting fees incident to any
such registration, (iv) blue sky fees and expenses (including counsel fees in
connection with the preparation of a Blue Sky Memorandum and legal investment
survey), (v) all expenses of any Persons in preparing or assisting in preparing,
printing, distributing, mailing and delivering any Registration Statement, any
Prospectus, any underwriting agreements, transmittal letters, securities sales
agreements, securities certificates and other documents relating to the
performance of and compliance with this Agreement, (vi) the expenses incurred in
connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, and (v) all internal
expenses of Wyndham (including all salaries and expenses of officers and
employees performing legal or accounting duties), provided, however, that
Registration Expenses shall not include any Selling Expenses.
"Registration Statement" shall mean any registration statement
of Wyndham which covers any Registrable Securities and all amendments and
supplements to any such Registration Statement, including post-effective
amendments, in each case including the Prospectus contained therein, all
exhibits thereto and all material incorporated by reference therein.
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"Required Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(i).
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as
amended from time to time.
"Securities Purchase Agreement" shall have the meaning set
forth in the preamble.
"Selling Expenses" shall mean underwriting discounts, selling
commissions and stock transfer taxes applicable to the shares registered by the
Holders, fees and disbursements of counsel for the Holders retained by them
(other than with respect to the fees and disbursements made in connection with
the preparation of a Blue Sky Memorandum and legal investment survey).
"Series A Preferred Stock" shall have the meaning set forth in
the preamble.
"Series B Preferred Stock" shall have the meaning set forth in
the preamble.
"Shelf Registration" shall mean a registration required to be
effected pursuant to Section 2(a)(ii).
"Shelf Registration Statement" shall mean a Registration
Statement pursuant to Section 2(a)(ii).
"Underwriter" shall have the meaning set forth in Section
5(a).
"Underwritten Offering" shall mean a sale of securities of
Wyndham to an Underwriter or Underwriters for reoffering to the public.
(2) Capitalized terms used herein and not otherwise defined
shall have the meanings assigned such terms in the Securities Purchase
Agreement.
Section 2. Registration Under the Securities Act.
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(a) Required Registration.
(1) Right to Require Registration. One or more Holders of
Registrable Securities shall have the right from time to time to request in
writing (a "Request") which Request shall specify the Registrable Securities
intended to be disposed of by such Holders and the intended method of
distribution thereof) that Wyndham register such Holders' Registrable Securities
by filing with the SEC a Required Registration Statement. Upon the receipt of
such a Request, Wyndham will, by the fifth business day thereafter, give written
notice of such requested registration to all Initial Holders of Registrable
Securities, and, not later than the 45th calendar day after the receipt of such
a Request by Wyndham, Wyndham will use all reasonable efforts to cause to be
filed with the SEC a Required Registration Statement covering the Registrable
Securities which Wyndham has been so requested to register by Holders thereof
other than the Initial Holder(s) initiating the Request by written request given
to Wyndham within 9 business days after the giving of such written notice by
Wyndham, providing for the registration under the Securities Act of the
Registrable Securities which Wyndham has been so requested to register by all
such Holders, to the extent necessary to permit the disposition of such
Registrable Securities so to be registered in accordance with the intended
methods of distribution thereof specified in such Request or further requests,
and shall use all reasonable efforts to have such Required Registration
Statement declared effective by the SEC as soon as practicable thereafter and to
keep such Required Registration Statement continuously effective for a period of
at least 60 calendar days (or, in the case of an Underwritten Offering, such
period as the Underwriters shall reasonably require) following the date on which
such Required Registration Statement is declared effective (or such shorter
period which will terminate when all of the Registrable Securities covered by
such Required Registration Statement have been sold pursuant thereto),
including, if necessary, by filing with the SEC a post-effective amendment or a
supplement to the Required Registration Statement or the related Prospectus or
any document incorporated therein by reference or by filing any other required
document or otherwise supplementing or amending the Required Registration
Statement, if required by the rules, regulations or instructions applicable to
the registration form used by Wyndham for such Required Registration Statement
or by the Securities Act, the Exchange Act, any state securities or blue sky
laws, or any rules and regulations thereunder.
Wyndham shall not be required to effect, pursuant to this
Section 2(a)(i), (i) a Required Registration hereunder unless Holders
beneficially owning Registrable Securities with an aggregate Market Value of $50
million have initiated
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<PAGE> 9
or joined in such Request and (ii) more than eight registrations in the
aggregate requested by the Holders, provided that so long as the Holders
collectively beneficially own Registrable Securities with a Market Value of at
least $100 million, the Holders shall have the right to require Wyndham to
effect additional Required Registrations provided that the Registrable
Securities included therein have an aggregate Market Value of at least $50
million and provided further that any Investor proposing to distribute its
Registrable Securities to its partners or shareholders shall have the right to
require Wyndham to effect an additional Required Registrations to facilitate
such distribution.
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.
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(2) Shelf Registration. Promptly upon the Request of the
Holders (but in no event later than the 75th calendar day after the receipt of
such a Request), the Company shall use its reasonable best efforts to promptly
process, file and cause to become effective a Registration Statement on Form S-3
(the "Shelf") for an offering of Registrable Securities to be made on a delayed
or continuous basis pursuant to Rule 415 under the Securities Act (or any
similar rule that may be adopted by the SEC) and permitting sales in ordinary
course brokerage or dealer transactions not involving an Underwritten Offering.
Each Holder which owns, on the date of the initial filing of the Shelf (the
"Initial Filing Date"), Registrable Securities (each such Holder, an "Eligible
Holder") shall have the right to resell such Registrable Securities under the
Shelf until the date that such Eligible Holder sells all of such Registrable
Securities, whether or not under the Shelf (such Eligible Holder's "Termination
Date"). The Company agrees to use its reasonable best efforts to keep the Shelf
continuously effective and usable for resale of Registrable Securities until all
Eligible Holders lose their rights to resell Registrable Securities under the
Shelf .
Notwithstanding the foregoing, (A) from the Closing and until
the effectiveness of a Shelf Registration Statement, Wyndham may delay the
filing of a Shelf Registration Statement, or (B) from and after the
effectiveness of a Shelf Registration Statement, each Holder agrees that it will
not effect any sales of the Registrable Securities pursuant to the Shelf
Registration, in either case, if the Board of Directors of Wyndham determines
that such action is in the best interests of Wyndham's stockholders, and only
for a Blackout Period, taken together with any Blackout Period invoked pursuant
to Section 2(a)(i), not to exceed 60 days.
The registration rights granted pursuant to the provisions of
this Section 2(a)(ii) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section 2.
(3) Priority in Required and Shelf Registrations. If a
Required or Shelf Registration pursuant to this Section 2(a) involves an
Underwritten Offering, and the sole Underwriter or the lead managing
Underwriter, as the case may be, of such Underwritten Offering shall advise
Wyndham in writing (with a copy to each Holder requesting registration) on or
before the date 5 days prior to the date then scheduled for such offering that,
in its opinion, the amount of Registrable Securities requested to be included in
such Required or Shelf Registration exceeds the amount which can be sold in such
offering without adversely affecting the distribution of the Registrable
Securities being offered, Wyndham will include in such Required or Shelf
Registration only the amount of Registrable Securities that Wyndham is so
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<PAGE> 11
advised can be sold in such offering; provided, however, that Wyndham shall be
required to include in such Required or Shelf Registration: first, all
Registrable Securities requested to be included in the Required or Shelf
Registration by the Holders and, to the extent not all such Registrable
Securities can be included in such Required Registration, the number of
Registrable Securities to be included shall be allocated pro rata on the basis
of the number of shares of Preferred Stock or Common Stock (whichever is
applicable) beneficially owned at that time by all the Holders requesting to
participate in the Required or Shelf Registration or on such other basis as
shall be agreed among the Holders, by agreement of the Majority Holders; and
second, if all Registrable Securities requested to be included in the Required
or Shelf Registration by the Holders can be so included, all other securities
requesting, in accordance with any registration rights which are granted in
compliance with Section 6(a), to be included in such Required Registration which
are of the same class as the Registrable Securities and, to the extent not all
such securities can be included in such Required or Shelf Registration, the
number of securities to be included shall be allocated pro rata among the
holders thereof requesting inclusion in such Required or Shelf Registration on
the basis of the number of securities requested to be included by all such
holders.
(b) Incidental Registration.
(i) Right to Include Registrable Securities. If at any time
Wyndham proposes to register any of their Preferred Stock or Common Stock under
the Securities Act (other than (A) any registration of public sales or
distributions solely by and for the account of Wyndham of securities issued (x)
pursuant to any employee benefit or similar plan or any dividend reinvestment
plan or (y) in any acquisition by Wyndham, or (B) pursuant to Section 2(a)
hereof), either in connection with a primary offering for cash for the account
of Wyndham or a secondary offering, Wyndham will, each time it intends to effect
such a registration, give written notice to all Initial Holders of Registrable
Securities at least 10 business days prior to the initial filing of a
Registration Statement with the SEC pertaining thereto, informing such Initial
Holders 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
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<PAGE> 12
distribution thereof), Wyndham will use all reasonable efforts to effect the
registration under the Securities Act of all Registrable Securities which
Wyndham has been so requested to register by such Initial Holders to the extent
required to permit the disposition (in accordance with the intended methods of
distribution thereof or, in the case of a registration which is intended to
effect a primary offering for cash for the account of Wyndham, in accordance
with Wyndham's intended method of distribution) of the Registrable Securities so
requested to be registered, including, if necessary, by filing with the SEC a
post-effective amendment or a supplement to the Incidental Registration
Statement or the related Prospectus or any document incorporated therein by
reference or by filing any other required document or otherwise supplementing or
amending the Incidental Registration Statement, if required by the rules,
regulations or instructions applicable to the registration form used by Wyndham
for such Incidental Registration Statement or by the Securities Act, any state
securities or blue sky laws, or any rules and regulations thereunder; provided,
however, that if, at any time after giving written notice of its intention to
register any securities and prior to the effective date of the Incidental
Registration Statement filed in connection with such registration, Wyndham shall
determine for any reason not to register or to delay registration of such
securities, Wyndham may, at its election, give written notice of such
determination to each Initial Holder of Registrable Securities and, thereupon,
(A) in the case of a determination not to register, Wyndham shall be relieved of
their obligation to register any Registrable Securities in connection with such
registration (but not from their obligation to pay the Registration Expenses
incurred in connection therewith), and (B) in the case of a determination to
delay such registration, Wyndham shall be permitted to delay registration of any
Registrable Securities requested to be included in such Incidental Registration
Statement for the same period as the delay in registering such other securities.
The registration rights granted pursuant to the provisions of
this Section 2(b) shall be in addition to the registration rights granted
pursuant to the other provisions of this Section.
(ii) Priority in Incidental Registrations. If a registration
pursuant to this Section 2(b) involves an Underwritten Offering of the
securities so being registered, whether or not for sale for the account of
Wyndham, and the sole Underwriter or the lead managing Underwriter, as the case
may be, of such Underwritten Offering shall advise Wyndham in writing (with a
copy to each Initial Holder of Registrable Securities requesting registration)
on or before the date 5 days prior to the date then scheduled for such offering
that, in its opinion, the amount of securities (including Registrable
Securities) requested to be included in such registration
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<PAGE> 13
exceeds the amount which can be sold in (or during the time of) such offering
without adversely affecting the distribution of the securities being offered,
then Wyndham will include in such registration: first, all the securities
entitled to be sold pursuant to such Registration Statement without reference to
the incidental registration rights of any holder (including the Holders), and
second, the amount of other securities (including Registrable Securities)
requested to be included in such registration that Wyndham is so advised can be
sold in (or during the time of) such offering, allocated, if necessary, pro rata
among the holders (including the Holders) thereof requesting such registration
on the basis of the number of the securities (including Registrable Securities)
beneficially owned at the time by the holders (including the Holders) requesting
inclusion of their securities; provided, however, that in the event Wyndham will
not, by virtue of this paragraph, include in any such registration all of the
Registrable Securities of any Holder requested to be included in such
registration, such Holder may, upon written notice to Wyndham given within 3
days of the time such Holder first is notified of such matter, reduce the amount
of Registrable Securities it desires to have included in such registration,
whereupon only the Registrable Securities, if any, it desires to have included
will be so included and the Holders not so reducing shall be entitled to a
corresponding increase in the amount of Registrable Securities to be included in
such registration.
(c) Expenses. Wyndham agrees to pay all Registration Expenses
in connection with (i) each of the registrations requested pursuant to Section
2(a) and (ii) each registration as to which Holders request inclusion of
Registrable Securities pursuant to Section 2(b). All Selling Expenses relating
to securities registered on behalf of the Holders shall be borne by the Holders
of shares included in such registration, other selling stockholders and Wyndham
pro rata on the basis of the number of shares of Preferred Stock or Common Stock
so registered.
(d) Effective Registration Statement; Suspension. Subject to
the third paragraph of Section 2(a)(i), a Registration Statement pursuant to
Section 2(a) will not be deemed to have become effective (and the related
registration will not be deemed to have been effected) unless it has been
declared effective by the SEC prior to a request by the Holders of a majority of
the Registrable Securities included in such registration that such Registration
Statement be withdrawn; provided, however, that if, after it has been declared
effective, the offering of any Registrable Securities pursuant to such
Registration Statement is interfered with by any stop order, injunction or other
order or requirement of the SEC or any other governmental agency or court shall
have been in effect for at least 30 days, such Registration Statement will
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<PAGE> 14
be deemed not to have become effective and the related registration will not be
deemed to have been effected.
(e) Selection of Underwriters. At any time or from time to
time, the Holders of a majority of the Registrable Securities covered by a
Required Registration Statement may elect to have such Registrable Securities
sold in an Underwritten Offering and may select the investment banker or
investment bankers and manager or managers that will serve as lead and
co-managing Underwriters with respect to the offering of such Registrable
Securities, subject to the consent of Wyndham which shall not be unreasonably
withheld. No Holder may participate in any Underwritten Offering hereunder
unless such Holder (a) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the Persons entitled
hereunder to approve such arrangements and (b) completes and executes all
questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements and other documents required under the terms of such
Underwritten Offering.
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
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such Registrable Securities by the Holders in accordance with their intended
method or methods of distribution, and Wyndham shall:
(a) (i) prepare and file a Registration Statement with the SEC
which (x) shall be on Form S-3 (or any successor to such form), if available,
(y) shall be available for the sale or exchange of the Registrable Securities in
accordance with the intended method or methods of distribution by the selling
Holders thereof and (z) shall comply as to form with the requirements of the
applicable form and include all financial statements required by the SEC to be
filed therewith and all other information reasonably requested by the lead
managing Underwriter or sole Underwriter, if applicable, to be included therein,
(ii) use all reasonable efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2, (iii) use all
reasonable efforts to not take any action that would cause a Registration
Statement to contain a material misstatement or omission or to be not effective
and usable for resale of Registrable Securities during the period that such
Registration Statement is required to be effective and usable and (iv) cause
each Registration Statement and the related Prospectus and any amendment or
supplement thereto, as of the effective date of such Registration Statement,
amendment or supplement (x) to comply in all material respects with any
requirements of the Securities Act and the rules and regulations of the SEC and
(y) not to contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(b) subject to paragraph (j) of this Section 4, prepare and
file with the SEC such amendments and post-effective amendments to each such
Registration Statement, as may be necessary to keep such Registration Statement
effective for the applicable period; cause each such Prospectus to be
supplemented by any required prospectus supplement, and as so supplemented 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;
(3) 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
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Prospectus, including each preliminary Prospectus, by each Holder of Registrable
Securities and each Underwriter of an Underwritten Offering of Registrable
Securities, if any, in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or the preliminary Prospectus (the Holders
hereby agreeing not to make a broad public dissemination of a form of
preliminary Prospectus which is designed to be a "quiet filing" without
Wyndham's consent, such consent to not be withheld unreasonably);
(d) (i) use all reasonable efforts to register or qualify the
Registrable Securities, no later than the time the applicable Registration
Statement is declared effective by the SEC, under all applicable state
securities or "blue sky" laws of such jurisdictions as each Underwriter, if any,
or any Holder of Registrable Securities covered by a Registration Statement,
shall reasonably request; (ii) use all reasonable efforts to keep each such
registration or qualification effective during the period such Registration
Statement is required to be kept effective; and (iii) do any and all other acts
and things which may be reasonably necessary or advisable to enable each such
Underwriter, if any, and Holder to consummate the disposition in each such
jurisdiction of such Registrable Securities owned by such Holder; provided,
however, that Wyndham shall not be obligated to qualify as a foreign corporation
or as a dealer in securities in any jurisdiction in which it is not so qualified
or to consent to be subject to general service of process (other than service of
process in connection with such registration or qualification or any sale of
Registrable Securities in connection therewith) in any such jurisdiction;
(e) notify each Holder of Registrable Securities promptly,
and, if requested by such Holder, confirm such advice in writing, (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of the issuance by the
SEC or any state securities authority of any stop order, injunction or other
order or requirement suspending the effectiveness of a Registration Statement or
the initiation of any proceedings for that purpose, (iii) if, between the
effective date of a Registration Statement and the closing of any sale of
securities covered thereby pursuant to any agreement to which Wyndham is a
party, the representations and warranties of Wyndham contained in such agreement
cease to be true and correct in all material respects or if Wyndham receives any
notification with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the initiation of any
proceeding for such purpose and (iv) of the happening of any event during the
period a Registration Statement is effective as a result of which such
Registration Statement or the related Prospectus contains any untrue statement
of a
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<PAGE> 17
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
(f) furnish counsel for each such Underwriter, if any, and for
the Holders of Registrable Securities copies of any request by the SEC or any
state securities authority for amendments or supplements to a Registration
Statement and Prospectus or for additional information;
(g) use all reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement at the earliest
possible time;
(h) upon request, furnish to the sole Underwriter or lead
managing Underwriter of an Underwritten Offering of Registrable Securities, if
any, without charge, at least one signed copy of each Registration Statement and
any post-effective amendment thereto, including financial statements and
schedules, all documents incorporated therein by reference and all exhibits; and
furnish to each Holder of Registrable Securities, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto (without documents incorporated therein by reference or exhibits
thereto, unless requested);
(i) cooperate with the selling Holders of Registrable
Securities and the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, to facilitate the
timely preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and enable such
Registrable Securities to be in such denominations (consistent with the
provisions of the governing documents thereof) and registered in such names as
the selling Holders or the sole Underwriter or lead managing Underwriter of an
Underwritten Offering of Registrable Securities, if any, may reasonably request
at least three business days prior to any sale of Registrable Securities;
(j) upon the occurrence of any event contemplated by paragraph
(e)(iv) of this Section, use all reasonable efforts to prepare a supplement or
post-effective amendment to a Registration Statement or the related Prospectus,
or any document incorporated therein by reference, or file any other required
document so that, as thereafter delivered to the purchasers of the Registrable
Securities, such Prospectus will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements
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therein, in the light of the circumstances under which they were made, not
misleading;
(k) enter into customary agreements (including, in the case of
an Underwritten Offering, underwriting agreements in customary form, and
including provisions with respect to indemnification and contribution in
customary form and consistent with the provisions relating to indemnification
and contribution contained herein) and take all other customary and appropriate
actions in order to expedite or facilitate the disposition of such Registrable
Securities and in connection therewith:
(1) make such representations and warranties to the Holders of
such Registrable Securities and the Underwriters, if any, in form,
substance and scope as are customarily made by issuers to underwriters
in similar underwritten offerings;
(2) obtain opinions of counsel to Wyndham and updates thereof
(which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the lead managing Underwriter, if any, and
the Majority Holders of the Registrable Securities being sold)
addressed to each selling Holder and the Underwriters, if any, covering
the matters customarily covered in opinions requested in sales of
securities or underwritten offerings and such other matters as may be
reasonably requested by such Holders and Underwriters;
(3) obtain "cold comfort" letters and updates thereof from
Wyndham's independent certified public accountants addressed to the
selling Holders of Registrable Securities, if permissible, and the
Underwriters, if any, which letters shall be customary in form and
shall cover matters of the type customarily covered in "cold comfort"
letters to underwriters in connection with primary underwritten
offerings;
(4) to the extent requested and customary for the relevant
transaction, enter into a securities sales agreement with the Holders
and such representative of the selling Holders as the Majority Holders
of the Registrable Securities covered by any Registration Statement
relating to the Registration and providing for, among other things, the
appointment of such representative as agent for the selling Holders for
the purpose of soliciting purchases of Registrable Securities, which
agreement shall be customary in form, sub-
16
<PAGE> 19
stance and scope and shall contain customary representations,
warranties and covenants; and (1)
(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 connection with a Registration Statement;
(m) (i) within a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus, provide copies of such
document to the Initial Holders of Registrable Securities and to counsel to such
Initial Holders and to the Underwriter or Underwriters of an Underwritten
Offering of Registrable Securities, if any; fairly consider such reasonable
changes in any such document prior to or after the filing thereof as the counsel
to the Holders or the Underwriter or the Underwriters may request and not file
any such document in a form to which the Majority Holders of Registrable
Securities being registered or any Underwriter shall reasonably object; and make
such of the representatives of Wyndham as shall be reasonably requested by the
Holders of Registrable Securities being registered or any Underwriter available
for discussion of such document;
(2) within a reasonable time prior to the filing of any
document which is to be incorporated by reference into a Registration Statement
or a Prospectus, provide copies of such document to counsel for the Holders;
fairly consider such reasonable changes in such document prior to or after the
filing thereof as counsel for such Holders or such Underwriter shall request;
and make such of the representatives
17
<PAGE> 20
of Wyndham as shall be reasonably requested by such counsel available for
discussion of such document;
(n) cause all Registrable Securities to be qualified for
inclusion in or listed on the New York Stock Exchange or any securities exchange
on which securities of the same class issued by Wyndham is then so qualified or
listed if so requested by the Majority Holders of Registrable Securities covered
by a Registration Statement, or if so requested by the Underwriter or
Underwriters of an Underwritten Offering of Registrable Securities, if any;
(o) otherwise use all reasonable efforts to comply with all
applicable rules and regulations of the SEC, including making available to its
security holders an earnings statement covering at least 12 months which shall
satisfy the provisions of Section 11 (a) of the Securities Act and Rule 158
thereunder;
(p) cooperate and assist in any filings required to be made
with the NASD and in the performance of any due diligence investigation by any
Underwriter in an Underwritten Offering; and
(q) use all reasonable efforts to facilitate the distribution
and sale of any Registrable Securities to be offered pursuant to this Agreement,
including without limitation by making road show presentations, holding meetings
with potential investors and taking such other actions as shall be requested by
the Majority Holders of Registrable Securities covered by a Registration
Statement or the lead managing Underwriter of an Underwritten Offering, in each
case subject to the reasonable availability of Wyndham's executives given their
other duties.
Each selling Holder of Registrable Securities as to which any
registration is being effected pursuant to this Agreement agrees, as a condition
to the registration obligations with respect to such Holder provided herein, to
furnish to Wyndham such information regarding such Holder required to be
included in the Registration Statement, the ownership of Registrable Securities
by such Holder and the proposed distribution by such Holder of such Registrable
Securities as Wyndham may from time to time reasonably request in writing.
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
18
<PAGE> 21
supplemented or amended Prospectus, contemplated by paragraph (j) of this
Section, and, if so directed by Wyndham, such Holder will deliver to Wyndham (at
the expense of Wyndham), all copies in its possession, other than permanent file
copies then in such Holder's possession, of the Prospectus covering such
Registrable Securities which was current at the time of receipt of such notice.
Section 5. Indemnification; Contribution.
(a) Indemnification by Wyndham. Wyndham agrees, jointly and
severally, to indemnify and hold harmless each Person who participates as an
underwriter (any such Person being an "Underwriter"), each Holder and their
respective partners, directors, officers and employees and each Person, if any,
who controls any Holder or Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act as follows:
(i) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement pursuant to which Registrable
Securities were registered under the Securities Act, including all
documents incorporated therein by reference, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any Prospectus, including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading;
(ii) against any and all losses, liabilities, claims, damages,
judgments and expenses whatsoever, as incurred, to the extent of the
aggregate amount paid in settlement of any litigation, investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any other claim whatsoever based upon any such untrue statement
or omission, or any such alleged untrue statement or omission, if such
settlement is effected with the written consent of Wyndham; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel), incurred in
investigating, preparing or
19
<PAGE> 22
defending against any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, in each case
whether or not such Person is a party, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under subparagraph (i) or (ii) above;
provided, however, that this indemnity agreement does not apply to any Holder or
Underwriter with respect to any loss, liability, claim, damage, judgment or
expense to the extent arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus, or the omission or
alleged omission therefrom of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, in any such case made in reliance upon and in conformity with
written information furnished to Wyndham by such Holder or Underwriter expressly
for use in a Registration Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).
(b) Indemnification by Holders. (i) Each selling Holder
severally agrees to indemnify and hold harmless Wyndham, each Underwriter and
the other selling Holders, and each of their respective partners, directors,
officers and employees (including each officer of Wyndham who signed the
Registration Statement), and each Person, if any, who controls Wyndham, any
Underwriter or any other selling Holder within the meaning of Section 15 of the
Securities Act, against any and all losses, liabilities, claims, damages,
judgments and expenses described in the indemnity contained in paragraph (a) of
this Section (provided that any settlement of the type described therein is
effected with the written consent of such selling Holder), as incurred, but only
with respect to untrue statements or alleged untrue statements of a material
fact contained in any Prospectus or the omissions, or alleged omissions
therefrom of a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in any
such case made in reliance upon and in conformity with written information
furnished to Wyndham by such selling Holder expressly for use in such
Registration Statement (or any amendment thereto) or such Prospectus (or any
amendment or supplement thereto).
(c) Conduct of Indemnification Proceedings. Each indemnified
party or parties shall give reasonably prompt notice to each indemnifying party
or parties of any action or proceeding commenced against it in respect of which
20
<PAGE> 23
indemnity may be sought hereunder, but failure so to notify an indemnifying
party or parties shall not relieve it or them from any liability which it or
they may have under this indemnity agreement, except to the extent that the
indemnifying party is materially prejudiced by such failure to give notice. If
the indemnifying party or parties so elects within a reasonable time after
receipt of such notice, the indemnifying party or parties may assume the defense
of such action or proceeding at such indemnifying party's or parties' expense
with counsel chosen by the indemnifying party or parties and approved by the
indemnified party defendant in such action or proceeding, which approval shall
not be unreasonably withheld; provided, however, that, if such indemnified party
or parties determine in good faith that a conflict of interest exists and that
therefore it is advisable for such indemnified party or parties to be
represented by separate counsel or that, upon advice of counsel, there may be
legal defenses available to it or them which are different from or in addition
to those available to the indemnifying party, then the indemnifying party or
parties shall not be entitled to assume such defense and the indemnified party
or parties shall be entitled to separate counsel (limited in each jurisdiction
to one counsel for all Underwriters and another counsel for all other
indemnified parties under this Agreement) at the indemnifying party's or
parties' expense. If an indemnifying party or parties is not so entitled to
assume the defense of such action or does not assume such defense, after having
received the notice referred to in the first sentence of this paragraph, the
indemnifying party or parties will pay the reasonable fees and expenses of
counsel for the indemnified party or parties (limited in each jurisdiction to
one counsel for all Underwriters and another counsel for all other indemnified
parties under this Agreement). No indemnifying party or parties will be liable
for any settlement effected without the written consent of such indemnifying
party or parties, which consent shall not be unreasonably withheld. If an
indemnifying party is entitled to assume, and assumes, the defense of such
action or proceeding in accordance with this paragraph, such indemnifying party
or parties shall not, except as otherwise provided in this subsection (c), be
liable for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action or proceeding.
(d) Contribution. (i) In order to provide for just and
equitable contribution in circumstances in which the indemnity agreement
provided for in this Section is for any reason held to be unenforceable by the
indemnified parties although applicable in accordance with its terms in respect
of any losses, liabilities, claims, damages, judgments and expenses suffered by
an indemnified party referred to therein, each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party
21
<PAGE> 24
as a result of such losses, liabilities, claims, damages, judgments and expenses
in such proportion as is appropriate to reflect the relative fault of Wyndham on
the one hand and of the liable selling Holders (including, in each case, that of
their respective officers, directors, employees and agents) on the other in
connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages, judgments or expenses, as well as any other
relevant equitable considerations. The relative fault of Wyndham on the one hand
and of the liable selling Holders (including, in each case, that of their
respective officers, directors, employees and agents) on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by Wyndham, on the one hand, or
by or on behalf of the selling Holders, on the other, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, liabilities, claims, damages, judgments and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
paragraph (c) of this Section, any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any action
or claim.
(ii) Wyndham and each Holder of Registrable Securities agree
that it would not be just and equitable if contribution pursuant to this
paragraph (d) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in sub-paragraph (i) above. Notwithstanding the provisions of this paragraph
(d), in the case of distributions to the public, an indemnifying Holder shall
not be required to contribute any amount in excess of the amount by which (A)
the total price at which the Registrable Securities sold by such indemnifying
Holder and its affiliated indemnifying Holders and distributed to the public
were offered to the public exceeds (B) the amount of any damages which such
indemnifying Holder has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No Person guilty of
fraudulent misrepresentation (within the meaning of Section 11 (f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
(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
22
<PAGE> 25
any, who controls Wyndham within the meaning of Section 15 of the Securities
Act, shall have the same rights to contribution as Wyndham.
Section 6. Miscellaneous.
(a) Inconsistent Agreements. Wyndham is not a party to, and
will not on or after the date of this Agreement enter into, any agreement which
conflicts with the provisions of this Agreement nor has Wyndham entered into any
such agreement, and Wyndham will not on or after the date of this Agreement
modify in any manner adverse to the Holders any such agreement; provided,
however, that nothing in this sentence shall prohibit Wyndham from granting
registration rights, which become exercisable from and after the Closing, to any
Person (a "Third Party") who becomes an owner of shares of any of Wyndham's
capital stock after the date hereof (including granting incidental registration
rights with respect to any Registration Statement required to be filed or
maintained hereunder) if and only if (i) the Third-Party's registration rights
(including, without limitation, demand registration rights) provide to the
Holders of Registrable Securities who seek to participate in such registration
(whether or not such registration is initiated hereunder) rights no less
favorable to such Holders than those rights provided to the Holders hereunder as
if such registration were a Required Registration (including, without
limitation, the priority provisions contained in Section 2(a)(iii)), provided,
further, however, that if such registration is not initiated by the Initial
Holders such registration shall not be deemed one of the eight Required
Registrations for purposes of the limitations contained in the second paragraph
of Section 2(a)(i), and (ii) the Third Party is required to enter into the
agreements provided for in Section 3 hereof (as if it were Wyndham) on the terms
and for the period applicable to Wyndham (including preventing sales pursuant to
Rule 144 under the Securities Act) if requested by the sole Underwriter or lead
managing Underwriter in an Underwritten Offering initiated by Holders of
Registrable Securities pursuant to Section 2(a). The rights granted to the
Holders hereunder do not in any way conflict with and are not inconsistent with
the rights granted to the holders of Wyndham's other issued and outstanding
securities under any such agreements.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless Wyndham has obtained the written consent of a majority
of the Holders and, if any such amendment, modification, supplement, waiver or
consent would adversely affect the rights of any Holder hereunder, the written
consent of each Holder which is affected shall be obtained; provided, however,
that nothing herein
23
<PAGE> 26
shall prohibit any amendment, modification, supplement, waiver or consent the
effect of which is limited only to those Holders who have agreed to such
amendment, modification, supplement, waiver or consent.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand delivery, telex,
telecopier, or any courier guaranteeing overnight delivery (i) if to a Holder,
at the most current address given by such Holder to Wyndham by means of a notice
given in accordance with the provisions of this paragraph (c), which address
initially is, with respect to each Holder as of the date hereof, the address set
forth next to such Holder's name on the signature pages hereof with a copy to
Randall H. Doud, Esq., telecopier number (212) 735-2000, and with respect to
each Holder who becomes such after the date hereof, the address of such Holder
in the stock records of Wyndham, (ii) if to Wyndham, at 1950 Stemmons Freeway,
Suite 6001, Dallas, Texas 75207, telecopier number (214) 863-1527, Attention:
General Counsel, with a copy to Gilbert G. Menna, P.C., telecopier number (617)
523-1231, and thereafter at such other address, notice of which is given in
accordance with the provisions of this paragraph. 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
24
<PAGE> 27
Holders, as defined in the preamble of this Agreement, and thus entitled to the
rights granted hereunder. For purposes of this Agreement, "successor" for any
entity other than a natural person shall mean a successor to such entity as a
result of such entity's merger, consolidation, liquidation, dissolution, sale of
substantially all of its assets, or similar transaction.
(e) Recapitalizations, Exchanges, Etc., Affecting Registrable
Securities. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Registrable Securities, to any and all
securities or capital stock of Wyndham or any successor or assign of Wyndham
(whether by merger, consolidation, sale of assets or otherwise) which may be
issued in respect of, in exchange for, or in substitution of such Registrable
Securities, by reason of any dividend, split, issuance, reverse split,
combination, recapitalization, reclassification, merger, consolidation or
otherwise. Upon the occurrence of any of such events, Preferred Stock and Common
Stock amounts hereunder shall be appropriately adjusted if necessary.
(f) Counterparts. This Agreement may be executed in two or
more counterparts, each of which, when so executed and delivered, shall be
deemed to be an original, but all of which counterparts, taken together, shall
constitute one and the same instrument.
(g) Descriptive Headings, Etc. The headings in this Agreement
are for convenience of reference only and shall not limit or otherwise affect
the meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Article, Section, paragraph and clause references are to the
Articles, Sections, paragraphs and clauses to this Agreement unless otherwise
specified; (4) the word "including" and words of similar import when used in
this Agreement shall mean "including, without limitation," unless otherwise
specified; (5) "or" is not exclusive; and (6) provisions apply to successive
events and transactions.
(h) Severability. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such
25
<PAGE> 28
provision, paragraph, word, clause, phrase or sentence in every other respect
and of the other remaining provisions, paragraphs, words, clauses, phrases or
sentences hereof shall not be in any way impaired, it being intended that all
rights, powers and privileges of the parties hereto shall be enforceable to the
fullest extent permitted by law.
(i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE (WITHOUT GIVING
EFFECT TO THE CONFLICTS OF LAW PRINCIPLES THEREOF).
(j) Specific Performance. The parties hereto acknowledge that
there would be no adequate remedy at law if any party fails to perform in any
material respect any of its obligations hereunder, and accordingly agree that
each party, in addition to any other remedy to which it may be entitled at law
or in equity, shall be entitled to compel specific performance of the
obligations of any other party under this Agreement in accordance with the terms
and conditions of this Agreement in any court of the United States or any State
thereof having jurisdiction.
(k) Entire Agreement. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between Wyndham, on the one hand, and the
other parties to this Agreement, on the other, with respect to such subject
matter.
* * *
26
<PAGE> 29
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the date first written above.
WYNDHAM INTERNATIONAL, INC.
By: /s/
----------------------------------
Name:
Title:
27
<PAGE> 30
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors III,
L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors III, Inc.,
its General Partner
Address:
1301 Avenue of the Americas
38th Floor
New York, New York 10019 By: /s/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
(212) 261-4060
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its
General Partner
By: Apollo Capital Management IV,
Inc., its General Partner
Address:
1301 Avenue of the Americas
38th Floor
New York, New York 10019 By: /s/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
(212) 261-4060
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/
-------------------------------------
Telecopier Number: Name:
28
<PAGE> 31
(617) 227-3514 Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
Address:
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/
-------------------------------------
Telecopier Number: Name:
(617) 227-3514 Title:
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
Address: By: THL Equity Advisors IV, LLC
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/
-------------------------------------
Telecopier Number: Name:
(617) 227-3514 Title:
THL-CCI LIMITED PARTNERSHIP
Address: By: THL Equity Advisors IV, LLC
75 State Street, Suite 2600
Boston, MA 02109
Attention: By: /s/
-------------------------------------
Telecopier Number: Name:
(617) 227-3514 Title:
BEACON CAPITAL PARTNERS, L.P.
Address: By: Beacon Capital Partners, Inc.,
1 Federal Street, 26th Floor its General Partner
Boston, MA 02110
Attention: By: /s/
-------------------------------------
Telecopier Number: Name:
29
<PAGE> 32
(617) 457-0499 Title:
STRATEGIC REAL ESTATE
INVESTMENTS I, L.L.C.
Address:
1995 University Avenue
Suite 550
Berkeley, CA 94704
By: /s/
-------------------------------------
Attention: Name:
Telecopier Number: Title:
(510) 849-1209
<PAGE> 1
EXHIBIT 6
ASSIGNMENT AND ASSUMPTION
THIS ASSIGNMENT AND ASSUMPTION (this "Assignment") is made as of
this ___ day of June, 1999, by and among (i) Thomas H. Lee Equity Fund IV, L.P.,
Thomas H. Lee Foreign Fund IV, L.P. and THL-CCI Limited Partnership
(collectively, the "Assignor"), (ii) The Bonnybrook Trust, The Dartmouth Trust
and The Franklin Trust (collectively, the "Assignee"), (iii) Patriot American
Hospitality, Inc., Wyndham International, Inc., Patriot American Hospitality
Partnership, L.P. and Wyndham International Operating Partnership, L.P.
(collectively, the "Companies"), and (iv) the Investors (the "Original
Investors") named on the signature pages of the Securities Purchase Agreement,
dated as of February 18, 1999, as amended, by and among the Companies and the
Original Investors (the "Securities Purchase Agreement"). Capitalized terms used
and not defined herein shall have the meanings ascribed to such terms in the
Securities Purchase Agreement.
W I T N E S S E T H:
WHEREAS, in accordance with Sections 1.1(b) and 11.3 of the
Securities Purchase Agreement, the Original Investors have the right to assign
their rights and obligations to purchase some or all of the Shares with the
Companies' consent (not to be unreasonably withheld or delayed) to other
persons, provided that no more than 25% in interest in the aggregate in the
rights and obligations to purchase Shares may be assigned to persons other than
Permitted Assignees;
WHEREAS, the Assignor desires to assign to the Assignee its right
and obligation to purchase 22,000 Shares (the "Subject Shares") and the Assignee
desires to accept such assignment and assume such obligation.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and adequacy of which is
hereby acknowledged:
1. Assignment and Assumption.
(a) The Assignor hereby assigns its right and obligation to purchase
the Subject Shares under the Securities Purchase Agreement to the Assignee.
(b) The Assignee, for the benefit of the Companies, each of the
Original Investors and any other persons who become Investors under the
Securities Purchase Agreement, hereby accepts the assignment of the Assignor's
right, and assumes its obligation, to purchase the Subject Shares under the
Securities Purchase Agreement and
-1-
<PAGE> 2
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, the Company Disclosure Letter and the Updated
Company Disclosure Letter and in making its determination to purchase the
Subject Shares and undertake the obligations of an Investor under the Securities
Purchase Agreement has relied solely on the representations and warranties,
covenants and other agreements of the Companies contained therein and not on any
representations, warranties or undertakings by the Assignor or any of the other
Original Investors, (ii) the Assignee currently has, or prior to the Closing
will have, sufficient funds to purchase the Subject Shares as contemplated by
the Securities Purchase Agreement, and (iii) the Assignee's purchase of the
Subject Shares will qualify as a passive investment by the Assignee for purposes
of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the
"HSR Act"), and accordingly the Assignee is not required to make any filings
under the HSR Act to purchase the Subject Shares.
(d) The Assignee agrees, for the benefit of each of the Original
Investors and any other persons who become Investors under the Securities
Purchase Agreement, (i) to fulfill its obligations under the Securities Purchase
Agreement assumed hereunder, including without limitation those contained in
Article VII, (ii) not to assign without the prior written consent of the
Original Investors any of its rights or obligations under this Assignment and
Assumption and (iii) to be a party to and fulfill its obligations under the
Stockholders' Agreement in the form delivered to the Assignee by the Assignor.
(e) 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
no later than June 22, 1999, which purchase price shall be held in escrow
pending the Closing and returned to the Assignee if the Closing does not occur
by July 15, 1999.
(f) The Assignee agrees that THL Equity Advisors IV, L.P., in its
capacity 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
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<PAGE> 3
determinations as to matters arising under the Securities Purchase Agreement and
related documentation and that any determination made by the Lead Investors
under the Securities Purchase Agreement and any related documentation shall be
binding upon the Assignee as if the Assignee had consented thereto, including
without limitation any determination as to whether closing conditions have been
satisfied or waived, any amendments or waivers of provisions of the Securities
Purchase Agreement and any determination or exercise of remedies by the
Investors under the Securities Purchase Agreement.
(g) The Companies acknowledge their consent to the assignment and
assumption effected hereby and agree that (i) the Assignor shall no longer be
obligated to purchase the Subject Shares under the Securities Purchase Agreement
and (ii) the Assignee shall be entitled to rely on the Companies'
representations and warranties, covenants and other agreements under the
Securities Purchase Agreement as if the Assignee were an Investor originally
named in the Securities Purchase Agreement.
(h) The Original Investors other than the Assignor hereby consent to
this Assignment and Assumption and acknowledge that the assignment contemplated
hereby will limit their collective right to make assignments under the
Securities Purchase Agreement.
(i) Notwithstanding anything to the contrary herein, the Assignee
agrees that, upon its payment for the Subject Shares in accordance with the
terms of this Assignment and Assumption and the Securities Purchase Agreement,
it shall only be entitled to receive the Subject Shares from the Companies and
shall not, under any circumstances, be entitled to receive any fees or expenses
pursuant to the Securities Purchase Agreement or otherwise from the Companies,
the Original Investors or any other persons that may become Investors under the
Securities Purchase Agreement. The Companies acknowledge that this Assignment
and Assumption shall in no way affect the Companies' obligation to pay the fees
payable under the Securities Purchase Agreement to the Original Investors as if
the Original Investors had not assigned any portion of the right and obligation
to acquire the Shares.
2. Acknowledgment as to Advisors. (a) The Assignee acknowledges that
Skadden, Arps, Slate, Meagher & Flom LLP is representing the Original Investors
as to certain matters the Companies in connection with the transactions
contemplated by the Securities Purchase Agreement and is not acting as counsel
to the Assignee in connection therewith.
(b) The Assignee acknowledges that PricewaterhouseCoopers LLP is
advising the Original Investors as to certain matters in connection with the
transactions contemplated by the Securities Purchase Agreement and is not acting
as advisor to the Assignee in connection therewith.
3. Binding Effect. This Assignment and Assumption shall inure to the
benefit of and be binding on the Assignee, the Assignor, the Companies, the
Original
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<PAGE> 4
Investors and their respective permitted successors and assigns, effective
immediately upon delivery.
4. Governing Law. This Assignment and Assumption shall be governed
and construed in accordance with the laws of the State of New York, without
regard to any applicable principles of conflicts of law.
IN WITNESS WHEREOF, parties hereto have caused this Assignment and
Assumption to be executed as of the date first above written.
ASSIGNOR:
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------
Name:
Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------
Name:
Title:
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------
Name:
Title:
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<PAGE> 5
ASSIGNEE:
THE BONNYBROOK TRUST
Number of Shares:________________
Federal Tax ID No.:_______________
By: /s/
-------------------------
Name:
Title:
THE DARTMOUTH TRUST
Number of Shares:________________
Federal Tax ID No.:_______________
By: /s/
-------------------------
Name:
Title:
THE FRANKLIN TRUST
Number of Shares:________________
Federal Tax ID No.:_______________
By: /s/
-------------------------
Name:
Title:
Consented to and Agreed:
PATRIOT AMERICAN HOSPITALITY, INC.
By: /s/
-----------------------
Name:
Title:
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<PAGE> 6
WYNDHAM INTERNATIONAL, INC.
By: /s/
-------------------------------
Name:
Title:
PATRIOT AMERICAN HOSPITALITY PARTNERSHIP, L.P.
By: PAH GP, INC., its General Partner
By: /s/
----------------------------------
Name:
Title:
WYNDHAM INTERNATIONAL OPERATING PARTNERSHIP, L.P.
By: Wyndham International, Inc., its General Partner
By: /s/
---------------------------------
Name:
Title:
ORIGINAL INVESTORS:
APOLLO REAL ESTATE
INVESTMENT FUND III, L.P.
By: Apollo Real Estate Advisors IV, L.P.,
its General Partner
By: Apollo Real Estate Capital
Advisors IV, Inc., its General Partner
By: /s/
--------------------------------
Name:
Title:
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<PAGE> 7
APOLLO INVESTMENT FUND IV, L.P.
By: Apollo Advisors, IV, L.P., its General Partner
By: Apollo Capital Management IV, Inc.,
its General Partner
By: /s/
------------------------------
Name:
Title:
THOMAS H. LEE EQUITY FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------
Name:
Title:
THOMAS H. LEE FOREIGN FUND IV, L.P.
By: THL Equity Advisors IV, LLC
By: /s/
-----------------------------
Name:
Title:
THOMAS H. LEE CHARITABLE
INVESTMENT L.P.
By: THL Equity Advisors IV, LLC
By: /s/
------------------------------
Name:
Title:
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<PAGE> 8
THL-CCI LIMITED PARTNERSHIP
By: THL Equity Advisors IV, LLC
By: /s/
-------------------------------
Name:
Title:
BEACON CAPITAL PARTNERS, L.P.
By: /s/
-----------------------------
Name:
Title:
STRATEGIC REAL ESTATE INVESTMENTS I, L.L.C.
By: /s/
-----------------------------
Name:
Title:
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